Republic of the Philippines

COURT OF APPEALS
Manila

FIFTH DIVISION

1st ADVENUE ADVERTISING CA-G.R. SP NO. 136362

AND DESIGN CORPORATION,
Petitioner,
Members:
- versus -
REYES, JR., J.C., Chairperson
NATIONAL LABOR RELATIONS ACOSTA, F.P., and
COMMISSION, NOEL BOTARDO PERALTA, JR., E.B., JJ.
LAMSON, BIENVENIDO
*
LAMSON , JR., BENEDICTO C.
Promulgated:
BALAAN, NELSON VENERACION
AND VITALIANO SALAMANCA,
Respondents. JUN 29 2015

x-----------------------------------------------------------------------------------------x

DECISION
REYES, JR., J.C., J.:

Before the Court is a Petition for Certiorari assailing the

Resolutions dated April 21, 2014 and May 21, 2014 of the National
Labor Relations Commission (NLRC) Second Division in NLRC LER
No. 04-095-14 (NLRC NCR 05-06884-13) which denied petitioner's
appeal and motion for reconsideration, respectively.
Noel Botardo Lamson, Bienvenido Lamson, Jr., Benedicto C.
Balaan, Nelson Veneracion and Vitaliano Salamanca (Lamson et al.)
filed a Complaint with the NLRC on May 8, 2013 for illegal dismissal,
illegal lay-off, underpayment of wages and 13 th month pay, non-
payment of holiday pay, separation pay, ECOLA, night shift
differential and damages against 1st Advenue Advertising and Design
Corp. (AADC) and its General Manager, Menencio Ocampo
(Ocampo). (Rollo, p. 42).
Lamson et al., who worked as driver/welder, installer and
leadman in AADC, claimed that they were paid below minimum and
were not given their benefits. They also said that Ocampo told them
that they could leave (“Maluwag ang pinto pwede na kayong
*
Spelled as “Lamzon” in other parts of the records.
CA-G.R.SP No. 136362 Page 2
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lumayas”) and to just return to get their separation pay as the

company will be closed due to financial reverses. They still tried to
work though but were told to just wait as the company was about to
be closed. The company continued its operations however and even
hired new workers. (Rollo, pp. 100, 261).
AADC and Ocampo for their part asserted that Lamson et al.
were not underpaid or illegally laid-off. They were hired by Wilbert
Maningas and Fernando Naval, shareholders and incorporators of
AADC. After a corporate dispute, Maningas and Naval left the
company and Lamson et al. left with them. Lamson et al. no longer
reported for work since their absence in January 2013. Ocampo, who
took over the leadership of the company sent them return-to-work
orders which Lamson et al. refused to follow without valid reason.
Then, more than five months later, Lamson et al. filed a complaint
with the NLRC in order to harass AADC and Ocampo. (Rollo, pp.
106-107).
After the parties filed their respective pleadings, Labor Arbiter
(LA) Madjayran H. Ajan, on January 13, 2014, rendered a Decision:
“WHEREFORE, premises above considered, judgment is
hereby rendered in favor of all five (5) complainants Noel B.
Lamson, Beinvenido Lamson, Jr., Benedicto C. Balaan, Nelson D.
Veneracion, and Vitaliano Salamanca, and ordering the respondent
company to pay their full backwages and separation pay equivalent
to one (1) month pay per year of service, in lieu of reinstatement,
underpaid salaries and 13 th month pay; plus attorney's fees
equivalent to ten percent of the total award.

All other claims are hereby denied for without (sic) sufficient
basis.

For having failed to sign of verify the Position Paper, the

instant case of complainant Joel D. Lamzon is hereby considered
meantime dismissed, but without prejudice. (sic)

The NLRC Computation and Examination Unit is hereby

directed to compute the monetary award, forming part of this
decision.

SO ORDERED.” (Rollo, p. 151)

The Labor Arbiter held that the AADC failed to show substantial
evidence that there was a deliberate and unjustified refusal on the
part of Lamson et al. to return to work. As there was no evidence
showing that Lamson et al. were guilty of abandonment of work, they
are deemed illegally dismissed from employment and are entitled to
payment of full backwages and separation pay equivalent to one (1)
CA-G.R.SP No. 136362 Page 3
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month pay per year of service. (Rollo, p. 150).

On March 21, 2014, Lamson et al. filed a Manifestation and
Notice and Memorandum of Partial Appeal which was opposed by
AADC. AADC for its part filed a Memorandum of Appeal and/or
Petition for Extraordinary Remedy on April 4, 2014 with the NLRC-
Second Division seeking the annulment and modification of the LA
Decision. (Rollo, pp. 25-26, 155-195).
AADC and Ocampo claimed that the LA's judgment is void for
lack of service upon them. They learned that a decision had been
rendered by the LA only when they received a copy of complainants'
partial appeal. They also learned that the decision was mailed to their
former business address. The LA then handed them a copy of the
decision on March 27, 2014. AADC claims that since the decision
was unserved, it is void and cannot be enforced. Assuming further
that the decision was properly served, its conclusions are bereft of
factual basis hence should be vacated. Lamson et al. were not
dismissed but are guilty of abandonment of work. In support of their
Appeal, they submitted a Deed of Assignment of Bank Deposit and
Bank Certification stating that Ocampo has an existing deposit in the
amount of more than P2M as of April 2, 2014 and a Special Power of
attorney (SPA) naming the Office of the Sheriff of the NLRC as
Ocampo's attorney-in-fact. (Rollo, pp. 26-27).
In support of their Petition for Extraordinary Remedy, AADC and
Ocampo averred that in view of the possibility that the NLRC will not
accept the assignment of bank deposit, which will lead to the finality
of the assailed decision, they are filing and availing the post judgment
remedy under Rule XII of the 2011 NLRC Rules of Procedure. They
argued that the LA and/or those under his supervision and control
gravely abused their discretion when they did not serve AADC a copy
of the decision. (Rollo, p. 28).
The NLRC on April 21, 2014 denied AADC's Appeal and
Petition.
It held that when Ocampo personally received a copy of the
Decision, for all legal intents and purposes he and AADC had been
properly served and they had ten (10) calendar days from March 27,
2014 to avail of the proper legal remedy. (Rollo, pp. 28-29).
The appeal also cannot be entertained by the NLRC for failure
of AADC and Ocampo to observe Sections 4 and 6 of Rule VI of the
2011 NLRC Rules of Procedure which specifically require a bond,
cash or surety in order to perfect an appeal. A Deed of Assignment of
CA-G.R.SP No. 136362 Page 4
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Bank Deposit falls short of this requirement. The appeal is dismissed

for non-perfection as AADC failed to post a cash or surety bond from
a reputable bonding company. Also, appeal is a purely statutory right
and whoever would avail of it must strictly comply with the requisites.
(Rollo, pp. 29-32).
As to the Petition for Extraordinary Legal Remedy, the NLRC
dismissed the same for AADC's failure to comply with Rule XII
Section 4 of the 2011 NLRC Rules of Procedure. The Petition was not
accompanied by a clear original copy of the assailed
Order/Resolution issued by LA Ajan. Worse, not a single
pleading/document was submitted by AADC to support any of its
allegation that it is entitled to an injunctive relief. Also Rule XII of the
2011 NLRC ROC is not a substitute or alternative for appeal. To
assail a decision of a LA, a litigant has to comply with the mandate of
Rule VI of the 2011 NLRC ROC pertaining to appeal. To allow AADC
to modify the LA Decision is tantamount to indirectly attacking a
decision without compliance with the basic requisites of an appeal. In
addition, the remedies of appeal under Rule VI and Petition for
Extraordinary Remedy under Rule XII are mutually exclusive and not
alternative. (Rollo, pp. 34-35).
The NLRC thus ruled:
“WHEREFORE, the Appeal is DENIED FOR NON-
PERFECTION and the Petition filed under Rule XII (Extraordinary
Remedies) of the 2011 NLRC Rules of Procedure is DENIED for
lack of merit.

SO ORDERED.” (Rollo, p. 35)

AADC's Motion for Reconsideration was denied on May 21,

2014 for lack of merit. (Rollo, pp. 39-41).
AADC (petitioner) is now before the Court alleging that the
NLRC gravely abused its discretion amounting to lack or excess of
jurisdiction:
I. IN DENYING THE PETITIONER'S APPEAL FOR ALLEGED
NON-PERFECTION

II. IN DENYING THE PETITION UNDER RULE XII OF [THE

NLRC RULES] FOR EXTRAORDINARY RELIEF.”
(Rollo, pp. 9-10).

AADC asserts that:

[ITS] APPEAL WAS PERFECTED FOR WHICH
CA-G.R.SP No. 136362 Page 5
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THE HONORABLE PUBLIC RESPONDENT SHOULD

HAVE RESOLVED THE CASE ON THE MERITS
[ITS] PETITION UNDER RULE XII OF THE NLRC
RULES IS SUFFICIENT IN BOTH SUBSTANCE AND
FORM; HENCE, THE HONORABLE PUBLIC
RESPONDENT SHOULD HAVE ENTERTAINED THE
PETITION AS AN ALTERNATIVE REMEDY
THE HONORABLE COMMISSION SHOULD HAVE
RULED ON THE MERITS OF THE CASE. (Rollo, p. 10).
AADC, citing Peoples Broadcasting v. the Sec. Of Labor and
Employment (GR No. 179652, May 8, 2009), avers that it
substantially complied with the requirements of Sections 5 and 6 of
the 2011 NLRC Rules of Procedure by posting an appeal bond via a
Deed of Assignment of Bank Deposit in favor of the NLRC with full
authority to inquire into the said account, as well as a Special Power
of Attorney to withdraw subject deposit upon finality of the appealed
judgment, and the undertaking of Ocampo not to withdraw the deposit
while the appeal was being determined. Ocampo authorized the
Office of the Sheriff via an SPA to withdraw subject deposit upon
finality of judgment. (Rollo, pp. 11-12).
AADC further asserts that dismissal of appeals based on purely
technical grounds is not encouraged. It was grave abuse of discretion
on the part of the NLRC when it denied petitioner's injunctive relief on
the ground that it allegedly failed to attach a clear original copy of the
assailed order when the original copy is with the case rollo of the
NLRC. What was served on AADC was a mere photocopy of the
same. It failed to receive a copy of the LA decision and came to
know about it only when it received a copy of Lamson et al.'s appeal.
It was only when it went to the LA's office that it was handed a
photocopy of the decision. (Rollo, pp. 13-15).
AADC prays that the Resolutions dated April 21, 2014 and May
21, 2014 of the NLRC be set aside and a new decision be rendered
ordering the instant case to be remanded to the NLRC for
adjudication on the merits. (Rollo, p. 17).
Private respondents-Lamson et al. meanwhile assert that the
NLRC correctly ruled that AADC did not comply with the 2011 NLRC
Rules of Procedure when it failed to attach not only the required bond
and a clear original copy of the assailed decision, but also the other
pleadings and documents to support its prayer for injunctive relief.
The ruling in People's Broadcasting is not applicable to the present
CA-G.R.SP No. 136362 Page 6
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case because in said case, the Deed of Assignment with Special

Power of Attorney was accompanied by a Letter Agreement executed
by therein petitioner and its bank. Here, there is no showing that
Producers Bank was informed of the Deed of Assignment. Thus, the
said bank is not bound to respect the same. (Rollo, pp. 264, 266,
269).
As regards the Petition for Extraordinary Remedy, Lamson et al.
argues that it is necessary that it be attached with a clear original or
certified true copy of the order or resolution assailed, as well as clear
copies of the documents relevant to the assailed order or resolution,
which AADC did not submit in this case. (Rollo, p. 270).
The Court finds NO MERIT in the petition.
Appeal is not a constitutional right, but a mere statutory
privilege which may be availed of only in the manner provided by law
and the rules. Thus, parties who seek to avail themselves of it must
comply with the statutes or rules allowing it, otherwise the privilege is
lost. (Sara Lee Philippines, Inc. v. Macatlang, G.R. No. 180147, June
4, 2014; Lepanto Consolidated Mining Corp. v. Icao, G.R. No.
196047, January 15, 2014).
According to Art. 223 of the Labor Code, in case of a judgment
involving a monetary award, an appeal by an employer may be
perfected only upon the posting of a cash or surety bond issued by a
reputable bonding company duly accredited by the Commission in the
amount equivalent to the monetary award in the judgment appealed
from. Article 223 was amended by Republic Act No. 6715 to include
the provision on the posting of a cash or surety bond as a
precondition to the perfection of appeal. (See Sara Lee Philippines,
Inc. v. Macatlang, G.R. No. 180147, June 4, 2014).
The 2011 NLRC Rules of Procedure also incorporates this
requirement in Rule VI, Section which states:
“SECTION 6. Bond. — In case the decision of the Labor
Arbiter or the Regional Director involves a monetary award,
an appeal by the employer may be perfected only upon the
posting of a bond, which shall either be in the form of cash
deposit or surety bond equivalent in amount to the monetary
award, exclusive of damages and attorney’s fees.” (Emphasis
supplied)

Thus the requisites for perfection of appeal as embodied in Art.

223, as amended are: (1) payment of appeal fees; (2) filing of the
memorandum of appeal; and (3) payment of the required cash or
CA-G.R.SP No. 136362 Page 7
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surety bond. These requisites must be satisfied within 10 days from

receipt of the decision or order appealed from. (See Sara Lee
Philippines, Inc. v. Macatlang, G.R. No. 180147, June 4, 2014).
Posting of the appeal bond within the period provided by law is
not merely mandatory but jurisdictional. The reason for this is to
assure the workers that if they prevail in the case, they will receive
the money judgment in their favor upon the dismissal of the
employer's appeal. This was intended to discourage employers from
using an appeal to delay, or even evade, their obligation to satisfy
their employees' just and lawful claims. (Sara Lee Philippines, Inc. v.
Macatlang, G.R. No. 180147, June 4, 2014).
There were instances when the rule respecting the bond
requirement to perfect appeal was relaxed, namely: where there was
substantial compliance with the rules; surrounding facts and
circumstances constitute meritorious grounds to reduce the bond; a
liberal interpretation of the requirement of an appeal bond would
serve the desired objective of resolving controversies on the merits;
or where the appellants, at the very least, exhibited their willingness
and/or good faith by posting a partial bond during the reglementary
period. (Sara Lee Philippines, Inc. v. Macatlang, G.R. No. 180147,
June 4, 2014).
In another case, it was also held that the requirement on the
posting of cash or surety bond in labor cases may be relaxed, in
certain exceptional circumstances in order to resolve controversies
on their merits. These include: (1) fundamental consideration of
substantial justice; (2) prevention of miscarriage of justice or of unjust
enrichment; and (3) special circumstances of the case combined with
its legal merits, and the amount and the issue involved. (Mcburnie v.
Ganzon, G.R. Nos. 178034 & 178117, October 17, 2013).
In this case, the Court finds no exceptional circumstance or
meritorious ground that would justify the relaxation of the rules on
appeals.
A review of the records would show that AADC's case before
the Labor Arbiter is anchored on its allegation that Lamson et al.
abandoned their work.
Abandonment, as defined, is the deliberate and unjustified
refusal of an employee to resume his employment. To constitute
abandonment of work, these two elements must concur: (1) the
employee must have failed to report for work or must have been
absent without valid or justifiable reason; and (2) there must have
CA-G.R.SP No. 136362 Page 8
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been a clear intention on the part of the employee to sever the

employer-employee relationship manifested by some overt act.
(Cosare v. Broadcom Asia, Inc., G.R. No. 201298, February 5, 2014).
Mere absence or failure to report for work is not enough. There
must be a concurrence of the intention to abandon and some overt
acts from which an employee may be deduced as having no more
intention to work. Absence must be accompanied by overt acts
unerringly pointing to the fact that the employee simply does not want
to work anymore. It is the employer who has the burden of proof to
show a deliberate and unjustified refusal of the employee to resume
his employment without any intention of returning. (Jordan v.
Grandeur Security & Services, Inc., G.R. No. 206716, June 18, 2014;
MZR Industries v. Colambot, G.R. No. 179001, August 28, 2013; Tan
Brothers Corp. v. Escudero, G.R. No. 188711, July 3, 2013).
Although AADC presented Letters with registry return receipts
as proofs that they gave the Lamson et al. return-to-work orders,(see
Rollo, pp. 46, 82-96) these are insufficient to convincingly show that
the said workers were guilty of abandonment.
Failure to report for work, even after notice to return is given the
employee, is not tantamount to abandonment. Abandonment is a
matter of intention which cannot be lightly presumed from certain
equivocal acts. (Jordan v. Grandeur Security & Services, Inc., G.R.
No. 206716, June 18, 2014; MZR Industries v. Colambot, G.R. No.
179001, August 28, 2013).
As observed by the Labor Arbiter, there was no proof that the
said employees actually received the return-to-work orders. The fact
that they filed a complaint for illegal dismissal is also inconsistent with
the principle of abandonment. It has been held that an employee
who takes steps to protest his dismissal cannot logically be said to
have abandoned his work. The filing of such complaint is proof
enough of his desire to return to work, thus negating the idea of
abandonment. (Jordan v. Grandeur Security & Services, Inc., G.R.
No. 206716, June 18, 2014; MZR Industries v. Colambot, G.R. No.
179001, August 28, 2013).
Anent AADC's Petition for Extraordinary Relief, which it filed as
an alternative remedy in its appeal, the NLRC correctly dismissed the
same for AADC's failure to comply with Section 4 Rule XII of the 2011
NLRC Rules of Procedure which requires that “the petition be
accompanied by a clear original or certified true copy of the order or
resolution assailed, together with clear copies of documents relevant
or related to the said order or resolution for the proper understanding
CA-G.R.SP No. 136362 Page 9
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of the issue/s involved.”

As noted by the NLRC, not only was the petition not
accompanied by a clear original copy of the assailed Decision of LA
Ajan, it was also not accompanied by any pleading/document to
support their allegation that they are entitled to their prayer for
injunctive relief. Rule XII is also not a substitute or alternative for
appeal. Neither can it be used to circumvent the requirements of
appeals. (Rollo, p. 34).
Again, an appeal is not a constitutional right but a mere
statutory privilege which may be availed of only in the manner
provided by law and the rules, otherwise such privilege may be lost.
(Sara Lee Philippines, Inc. v. Macatlang, G.R. No. 180147, June 4,
2014; Lepanto Consolidated Mining Corp. v. Icao, G.R. No. 196047,
January 15, 2014).
As a final note, let it be stressed that the petition before the
Court is one for certiorari.
In petitions for certiorari, the petitioner must demonstrate grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of the NLRC. Grave abuse of discretion, according to case law
"must be grave, which means either that the judicial or quasi-judicial
power was exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, or that the respondent judge, tribunal or
board evaded a positive duty, or virtually refused to perform the duty
enjoined or to act in contemplation of law, such as when such judge,
tribunal or board exercising judicial or quasi-judicial powers acted in a
capricious or whimsical manner as to be equivalent to lack of
jurisdiction.” (Northwest Airlines, Inc. v. Del Rosario, G.R. No.
157633. September 10, 2014).
As AADC failed to sufficiently show that the NLRC gravely
abused its discretion in rendering its resolutions, the Court has no
reason to grant the instant petition.
WHEREFORE, the petition is DISMISSED for lack of merit. The
Resolutions dated April 21, 2014 and May 21, 2014 of the National
Labor Relations Commission Second Division in NLRC LER No. 04-
095-14 (NLRC NCR 05-06884-13) are hereby AFFIRMED.
SO ORDERED.
JOSE C. REYES, JR.
Associate Justice
CA-G.R.SP No. 136362 Page 10
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WE CONCUR:

FRANCISCO P. ACOSTA EDUARDO B. PERALTA, JR.

Associate Justice Associate Justice

C E R T I F I C AT I O N

Pursuant to Article VIII, Section 13 of the Constitution, it is

hereby certified that the conclusions in the above decision were
reached in consultation before the case was assigned to the writer of
the opinion of the Court.

JOSE C. REYES, JR.

Associate Justice
Chairperson, 5th Division