Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Sub-Regional Arbitration Branch No. I
Dagupan City

DIANE SALVADOR,
Appellee - Complainant,

NLRC CASE NO. SUB-RAB

-versus- I-6 -01- 0005 - 11

DANIEL KATIGBAK
Owner, AsianMed,
Appellant-Respondent,
x--------------------------x

MEMORANDUM OF APPEAL

COME NOW Appellant- Respondent, by the undersigned counsel, and unto

this Honorable Office, most respectfully state:

JURISDICTIONAL FACTS

1. On May 4, 2017, appellant-respondent received a copy of the subject

Decision of the Hon. Labor Arbiter Juan Dela Cruz through the
undersigned counsel in the NLRC CASE NO. SUB-RAB I-6 -01- 0005
– 11.

2. Thus, appellant-respondent has until May 14, 2017 within which to file
its Memorandum of Appeal, and since May 14, 2017 falls on a Sunday,
appellant – respondent has until May 15, 2017 to file the same. Hence,
this Memorandum of Appeal is filed within the ten- day reglementary
period provided for in Section 1, NLRC Interim Rules on Appeals under
R.A.6715, amending the Labor Code.

3. Appellant- respondent most respectfully appeal the Decision of the

Hon. Dela Cuz to the Honorable Commission and submit the instant
Memorandum of Appeal.

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 4. In his Decision1, the Hon. Dela Cruz ruled, to wit:

“WHEREFORE, premises considered, judgment is hereby rendered

declaring complainant dismissal as illegal. Respondent is hereby
ordered to pay complainant Diane Salvador the total amount three
hundred thousands pesos (P300,000.00) representing their non-
payment of 13th month pay, service incentive leave pay, holiday pay
and full backwages. All other claims are hereby ordered
dismissed.”

5. The Hon. Dela Cruz committed grave abuse of discretion in rendering

the above decision and committed serious errors in the findings of
facts which, if not corrected, would cause grave or irreparable damage
or injury to the appellant-respondent as discussed below:

GROUND RELIED UPON IN SUPPORT OF THE APPEAL

6. The Hon. Dela Cruz committed grave abuse of discretion in rendering the
above decision and committed serious errors in the findings of facts in
finding that:

a. Complainant-appellee was illegally dismissed.

b. Complainant is entitled to 13th month pay, service incentive leave

pay, holiday pay separation pay and full backwages.

ARGUMENTS

7. With all due respect, it was serious error for the Hon. Dela Cruz to have
found that appellee-complainant was illegally dismissed. Appellee-
complainant could not have been illegally dismissed because the
employer show that the dismissal is for just and valid cause.

8. Even a cursory examination of complainant-appellee Position Paper and

other pleadings in the proceedings a quo will readily show that they failed
to substantiate the alleged dismissal.

9. Appellee failure to provide any written explanation as well as plausible

explanation on the undelivered stocks, overpayment, and unremitted
collections as well as her unauthorized absences from July 16 to
September 30, 2014, a Notice of Termination of Employment dated
1
A copy of the letter is attached as Annex ”A”.

2
 October 1, 2014 was handed to and received by her on the same date.

10. It is admitted that complainant as per advice in the Return-to-Work

Order, she was asked to report and explain her side and bring any
written explanation as to the issues raised in the return-to-work letter.
but she failed to do so, offering to do so, offering no explanation
whatsoever as to the questionable accounts under her.

11. Appellant-respondent merely exercised his right under Art. 286 of the
Labor Code2 to suspend the work of the appellee-complainant. Failure
to provide any written explanation as well as plausible explanation on
the undelivered stocks, overpayment, and unremitted collections as
well as her unauthorized absences from July 16 to September 30,
2014, a Notice of Termination of Employment dated October 1, 2014
was handed to and received by her on the same date. Under the said
provision:

“ART. 286. When employment not deemed terminated.- The

bona fide suspension of the operation of a business or undertaking
for a period not exceeding six (6) months, or the fulfillment by the
employee of a military or civic duty shall not terminate employment.
In all such cases, the employer shall reinstate the employee to his
former position without loss of seniority rights if he indicates his
desire to resume his work not later than one (1) month from the
resumption of operations of his employer or from his relief from the
military or civic duty.”3

12. In Philippine Industrial Security Agency Corp. vs. Dapiton, et al. (G.R. NO.
127421, December 8, 1999)4, the Supreme Court stated, to wit:

“We stress that Article 286 applies only when there is a bona
fide suspension of the employer's operation of a business or
undertaking for a period not exceeding six (6) months. In such a
case, there is no termination of employment but only a temporary
displacement of employees, albeit the displacement should not

2
http://www.dole.gov.ph/

3
http://www.dole.gov.ph/

4
http://sc.judiciary.gov.ph/jurisprudence/1999/dec99/127421.htm

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 exceed six (6) months. The paramount consideration should be the
dire exigency of the business of the employer that compels it to put
some of its employees temporarily out of work.”

13. All the pleadings of respondent-appellant was consistent on two points:

a. Complainant-appellee was asked to report and explain her side

and bring any written explanation as to issues raised in the
return-to-work letter ; and
b. Complainant-appellee failed to provide any written explanation
as well as plausible explanation on the undelivered stocks,
overpayment, and unremitted collections as well as her
unauthorized absences from July 16 to September 30, 2014 .

14. The absolute lack of evidence to substantiate the claim of dismissal by the
appellant-respondent was glaringly ignored by the Hon. Dela Cruz.

15. The commission of serious errors in the findings of facts by the Hon. Dela
Cruz, if not corrected, would cause grave or irreparable damage or injury
to the appellants-respondents.

16. Because the complainant-appellee was never legally dismissed, there

could be no occasion for any illegal dismissal.

And there being no illegal dismissal, they are not entitled to any separation
pay and full backwages.

. PRAYER:

WHEREFORE, based on the foregoing, it is most respectfully prayed that the

ruling of the Hon. Dela Cruz:

a. Declaring complainant dismissal as illegal be reversed and set aside.

b. Holding respondent-appellant liable for the payment to complainant Diane

Salvador of the total amount three hundred thousands pesos (P300,000.00)
representing their separation pay and full backwages be reversed and set aside.

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Furthermore, the Complaint by complainant-appellee should be dismissed for
being without any factual or legal basis.

All other relief just and equitable under the premises are likewise prayed for.

Dagupan City, Philippines, this 25th day of May,2017.

Atty. Monaliza D. Diaz

Roll of Attorney’s No. 052781
IBP No. 052781 (Lifetime)
MCLE Compliance No. III - 0027581
Valid from 05/10/2015 until 05/09/2018
monalizadiaz@yahoo.com
09100799488

Copy furnished:
Atty. Juana Juan
Counsel for the complainant
Public Attorney’s Office
Justice Hall, Bonuan, Tondaligan
Dagupan City

EXPLANATION

Copy of the foregoing MEMORANDUM OF APPEAL was served the counsel for
the complainant through registered mail due to lack of personnel making
personal service impracticable.