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REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT


QUEZON CITY

ROSELLE B. BERGADO, CHLOE


GERALDINE V. LAGISMA AND
ELIEZAR D. LAGISMA, NLRC CASE NO. RAB II-03-
Complainant- Appellee, 00109-2017

- versus -

ALVAREZ
VERGARAINDUSTRIAL
GROUP, INC. and/or EVELYN
ALVAREZ-DEWITT, And/or
GLORIETTA CORUZ
ALMAZAN,
Respondents-Appellants,

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

MEMORANDUM OF APPEAL
Respondents-Appellants, through the undersigned counsel, unto
this Honorable Commission, most respectfully aver:

TIMELINESS

1. On November 29, 2017, Labor Arbiter LOURDES R.


BARICAUA issued a decision/order/resolution (hereto referred as “the
subject decision”) of the case entitled: Roselle B. Bergado (RBB), Chloe
Geraldine V. Lagisma (CVL) and Eliezar D. Lagisma (EDL) VS.
Alvarez-Vergara Industrial Group, Inc. (AVIGI) and/or Evelyn
Alvarez-Dewitt and/or Glorieta C. Almazan under NLRC CASE NO.
RAB II-03-00109-2017, the dispositive portion of which provides:

“WHEREFORE, in view of the foregoing,


JUDGMENT is hereby rendered declaring that
complainants are employees of respondent ALVAREZ-
VERGARA INDUSTRIAL GROUP, INC. thru EVELYN
ALVAREZ – DEWITT and/or GLORIETA C. ALMAZAN
is hereby ORDERED to pay complainant ROSELLE B.
BERGADO, CHLOE GERALDINE V. LAGISMA &
ELIEZAR D. LAGISMA within ten(10) calendar days
from receipt thereof, the sum of FOUR HUNDRED
FOURTEEN THOUSAND SEVEN HUNDRED
EIGHTY-SIX PESOS & 90/100 (p414,786.90), Philippine
Currency, representing separation pay, backwages plus
proportionate 13th Month Pay, wage differential pay for
complainant Eliezar D. Lagisma and attorney’s fees.

All other claims are hereby DISMISSED for lack


of merit, basis and jurisdiction.

SO ORDERED.”

Attached herewith is a certified true copy of the abovementioned


decision, hereto marked as Annex “A”.

2. On January 24, 2018, herein Respondent-Appellant received a


copy of the subject decision.

3. On ____________________, Respondent-Appellant, posted an


appeal cash bond in the amount of FOUR HUNDRED FOURTEEN
THOUSAND SEVEN HUNDRED EIGHTY-SIX PESOS & 90/100
(PHP414,786.90), a certified true copy of its receipt is hereto attached as
Annex “B”.

4. Pursuant to Section 1 of the 2011 NLRC Rules of Procedure,


an appeal from the decision of the Labor Arbiter may be made by any
of both parties within a period of ten (10) calendar days from receipt
thereof. Accordingly, Respondent- Appellant has until February 4, 2018
within which to file an appeal from the above-mentioned decision.
Thus, the filing of this Memorandum of Appeal.

5. The Labor Arbiter committed grave abuse of discretion in


rendering the subject decision and committed serious errors in the
findings of facts which, if not corrected, would cause grave or
irreparable damage or injury to the Respondent-Appellant to be
discussed in the Assignment of Errors and Arguments below.
THE PARTIES

6. Complainant ROSELLE B. BERGADO (“Complainant


Bergado”) is of legal age, Filipino and a resident of Blk 7, Lot 28
Silverland Subd., Patul, Santiago City, Isabela, where he may be served
with summons, notices, orders and processes of this Honorable
Commission.

7. Complainant CHLOE GERALDINE V. LAGISMA


(“Complainant Lagisma”) is of legal age, Filipino and a resident of Blk
7, Lot 28 Silverland Subd., Patul, Santiago City, Isabela, where he may
be served with summons, notices, orders and processes of this
Honorable Commission.

8. Complainant ELIEZAR D. LAGISMA (“Complainant


Lagisma”) is of legal age, Filipino and a resident of Alvarez Compound,
Plaridel, Santiago City, Isabela, where he may be served with summons,
notices, orders and processes of this Honorable Commission.

9. Respondents Alvarez – Vergara Industrial Group Inc., is a


domestic corporation, duly organized and existing under Philippine
laws with business address at 49 Alvarez St., Plaridel, Santiago City,
Isabela. It may be served with summons, notices, orders and processes
of this Honorable Commission at the address of the undersigned
counsel.

10. Respondent Evelyn Alvarez Dewitt is of legal age, Filipino


and US citizen, with office address at 49 Alvarez St., Plaridel, Santiago
City, Isabela. She may be served with summons, notices, orders and
processes of this Honorable Commission at the address of the
undersigned counsel.

11. Respondent Glorieta Corpuz Almazan is of legal age, Filipino


and a resident of Silverland, Sinsayon, Santiago City, Isabela. She may
be served with summons, notices, orders and processes of this
Honorable Commission at the address of the undersigned counsel.

STATEMENT OF FACTS AND ANTECEDENT


PROCEEDINGS
12. Sometime in 2016, Complainants were hired by
Respondent Glorieta Corpuz Almazan (“Glorieta” for brevity) as
personal helpers.

13. As personal helpers, they were tasked to do all-around


work for Glorieta including the familiarization of operation of
ALVAREZ – VERGARA INDUSTRIAL GROUP INC. – Santiago
City Branch (AVIGI) which Glorieta aims to take-over upon
acquisition thereof.

14. During her period of employment with Glorieta,


Complainant Roselle B. Bergado (RBB) was found guilty of
several violations summarized as follows:

Date Violation(s)
2016 Insubordination to Employer
Dishonesty
Commission of Swindling and/or Theft

2017 Absence Without Leave / Abandonment


2016 - 2017 Incomplete Uniform while on duty

15. Also, during his period of employment, Complainant


Eliezar D. Laguisma (EDL) committed the following violations:

Date Violation(s)
2016 Insubordination
2016 Falsification
Absence Without Leave/ Abandonment
Swindling and/or Theft

16. During her period of employment, Complainant Chloe


Geraldine V.Lagisma (CVL) was found guilty of several violations
summarized as follows:

Violation(s)
2016 Insubordination to Employer
Dishonesty
Commission of a Crime (Swindling and/or
Theft)

2017 Absence Without Leave / Abandonment of


Duty
2016- Non-Wearing of Uniform
2017
2017 Falsification,

17. Despite of the above mentioned infractions,


respondent Glorieta, for humanitarian considerations, still
continued to allow them to work as personal helpers.

18. Every time complainants commit mistake or violation,


respondent usually get their side, but because of close
relationship, respondent usually forgive them. In fact,
respondent was too generous to them that she even bought them
appliances and a car to make their lives easy.

19. The work of Complainants to AVIGI is personal to


Glorieta. It was Glorieta who hired the complainants and not
AVIGI or its president, Evelyn Alvarez – DeWitt. Salary of
Complainants is paid by Glorieta and not AVIGI and the control
on how to perform the task is with Glorieta.

20. Sometime in 2016, respondent Glorieta bought an


ATV Motorcycle. This ATV was last seen in AVIGI Warehouse,
taken by Complainants away from the warehouse and was never
returned. Attached herein as Annex “__” is the affidavit of
Jeffrey Ramiro to prove the unlawful taking of the ATV
Motorcycle by complainants herein.

21. Also, sometime in 2016, RBB presented EDL to


respondent Glorieta, requesting the latter to hire EDL. RBB
introduced EDL as “John Doe” and a non-relative. It turned out
later that RBB and EDL are siblings.

22. Also in 2016, considering the trust respondent


Glorieta reposed unto RBB, and in spite of the lies of RBB,
the former entrusted several pre-signed checks to RBB.
Three of the pre-signed checks were completed by RBB
placing her name in one of the checks as payee and placing
the amount of ONE HUNDRED THOUSAND PESOS
(P100,000.00) on the face of the check.
23. The other pre-signed checks were completed with
CVL as payee ad placing the amount of FIFTY THOUSAND
PESOS (P50,000.00) on the face of each check.

24. These checks were withdrawn without the consent of


respondent, expressed or implied. Please see attached copy of
the checks and Bank Statement of Accounts as Annexes “__”
and “__”.

25. On December 29, 2016, RBB borrowed THIRTY


THOUSAND PESOS (P30,000.00) from respondent Glorieta.
This was granted by respondent in the spirit of Christmas and
on account of the New Year celebration. Please see Promissory
Note attached herein as Annex “__”.

26. On January 2017, while conducting an audit, the


outsourced external auditor of AVIGI found out the missing
checks and the unauthorized withdrawal of TWO HUNDRED
THOUSAND PESOS (P200,000.00). This led to the investigation
of this matter.

27. While conducting as audit and after knowing that an


investigation is being conducted in relation to the unauthorized
withdrawal of checks, Complainants, without giving any reason
or prior approved leave, no longer reported for duty.
Respondents, on the other hand, exerted their best efforts to
communicate with Complainants for them to respond on the
result of the investigation.

28. Thereafter, Respondents were totally surprised to


receive an Invitation for Conference from NLRC Sub-Regional
Arbitration Branch V requiring them to appear on 09 March
2017 concerning the complaint filed by the Complainants on 02
March 2017.

29. Subsequently, the parties filed their Position Papers,


which are attached hereto as Annexes “__” and “_”, respectively.

30. Thereafter, the Labor Arbiter issued the assailed


resolution.

HENCE THIS APPEAL.


ASSIGNMENT OF ERRORS

31. The Labor Arbiter committed grave abuse of discretion in


rendering the subject decision and committed serious errors in the
findings of facts in ruling the following:

a) Declaring that the complainants are employees of


AVIGI.
b) Declaring that the complainants were illegally
terminated.
c) Ordering respondent to pay separation pay,
backwages plus proportionate 13th month pay, wage
differential for complainant Eliezar D. Lagisma and
attorney’s fee, thereby ordering the Appellant-
Respondent to pay the sum of FOUR HUNDRED
FOURTEEN THOUSAND SEVEN HUNDRED
EIGHTY-SIX & 90/100 (PhP 414,786.90).

DISCUSSIONS/ARGUMENTS

32. It is a basic rule of evidence that each party must prove his
affirmative allegation.1 If he claims a right granted by law, he must
prove his claim by competent evidence, relying on the strength of his
own evidence and not upon the weakness of that of his opponent.2 The
test for determining on whom the burden of proof lies is found in the
result of an inquiry as to which party would be successful if no
evidence of such matters were given.3 In an illegal dismissal case, the
onus probandi rests on the employer to prove that the dismissal of an
employee was for a valid cause.4 However, before a case for illegal
dismissal can prosper, an employer-employee relationship must first
be established.5Thus, in filing a complaint before the Labor Arbiter (LA)
for illegal dismissal, based on the premise that he was an employee of
respondents, it is incumbent upon petitioner to prove the employer-
employee relationship by substantial evidence.6

1 Lopez v. Bodega City (Video-Disco Kitchen of the Phils.) and/or Torres-Yap, 558 Phil. 666, 673 (2007).
2Id. at 673-674.
3 Id. at 674.
4 Id.

5 Id.
6 Id.
33. In the instant case, conflicting issues must first be resolved
before determining the issue of illegal dismissal which primarily boils
down to the issue of whether complainants-appellees RBB, CGL and
EDL substantially establish their claims that they are
regular/permanent employee of herein respondent-appellant AVIGI?
We stand in the negative.

The Labor Arbiter seriously


erred in ruling that
Complainants-Appellees are
regular employees of
Alvarez-Vergara Industrial
Group, Inc. as they were
personal helpers of Glorieta
Almazan.

34. The Complainants-appellees are the ones claiming that they


are regular employees of AVIGI then the burden lies on them to prove
their claims by substantial evidence. Substantial evidence has been
defined to be such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion, and its absence is not shown by
stressing that there is contrary evidence on record, direct or
circumstantial, for the appellate court cannot substitute its own
judgment or criterion for that of the trial court in determining wherein
lies the weight of evidence or what evidence is entitled to belief.
(Velasquez vs. Nery, 211 SCRA 28 [1992]).

35. Notably, when the Labor Arbiter ruled the issue in illegal
dismissal, she based her decision on the mere allegations of the
complainants-appellees that they work for the respondent-appellee.
Otherwise stated, other than the mere allegations of Complainants-Appellees,
there is no basis at all for the Labor Arbiter to conclude that Complainant-
Appellees are regular employees - the truth is, Complainants-Appellees are
personal helpers of herein individual respondent-appellant Glorieta Almazan
(“Glorieta” for brevity) and NOT of AVIGI or Evelyn Alvarez - DeWitt.

36. In the instant case, it is incumbent upon Complainants-


Appellees to prove by substantial evidence that herein respondent-
appellant AVIGI has “control” over them. However, Complainants-
Appellants failed to show any proof that they were exercising their duties such
as the manner on how they execute their work, on how they receive their wages
or any other proof that AVIGI has a “control” over them. What they merely
alleged are that they are working for AVIGI.
37. It is crystal clear that Complainants-Appellees failed to
prove by substantial evidence that respondents-appellants AVIGI is
exercising “control” over them. All are mere allegations. Hence, failure
of Complainants-Appellees to prove by substantial evidence the
circumstances falling within the ambit of the “control test” of employer-
employee relationship.

38. Therefore, complainants-appellees RBB, CGL, and EDL are


NOT REGULAR EMPLOYEES BUT PERSONAL HELPERS of
Glorieta, in the latter’s INDIVIDUAL CAPACITY.

The Labor Arbiter seriously


erred in ruling that
complainant-appellees were
illegally dismissed
(constructive).

39. Time and again our Supreme Court in many cases held: “In
illegal dismissal cases, it is incumbent upon the employees to first establish
the fact of their dismissal before the burden is shifted to the employer to prove
that the dismissal was legal.” This ruling was strengthened in the case of
Ledesma, Jr. v. National Labor Relations Commission, (G.R. No.
174585, October 19, 2007, 537 SCRA 358, 370), where our Supreme
Court held:

“While this Court is not unmindful of the rule that in


cases of illegal dismissal, the employer bears the burden of
proof to prove that the termination was for a valid or
authorized cause in the case at bar, however, the facts and
the evidence did not establish a prima facie case that the
petitioner was dismissed from employment. Before the
private respondent must bear the burden of proving that
the dismissal was legal, petitioner must first establish by
substantial evidence the fact of his dismissal from service.
Logically, if there is no dismissal, then there can be no
question as to the legality or illegality thereof.”(emphasis
supplied ours)

40. Established is the fact that there is NO EMPLOYER-


EMPLOYEE RELATIONSHIP BETWEEN THE PARTIES as far as the
alleged positions in AVIGI is concerned. Now, since complainants-
appellees are private helpers of Glorieta Almazan, the Labor Arbiter
has NO BASIS at all to support her ruling of illegal dismissal in the
absence of employer-employee relationship between the parties. The
withdrawal of theory that Complainants-Appellees are regular-
employees should also follow that the issue on illegal dismissal has
no leg to stand on.

41. In Machica v. Roosevelt Services Center, Inc.,7 this Court


sustained the employer's denial as against the employees' categorical
assertion of illegal dismissal. In so ruling, this Court held that:

“The rule is that one who alleges a fact has the


burden of proving it; thus, petitioners were burdened to
prove their allegation that respondents dismissed them
from their employment. It must be stressed that the
evidence to prove this fact must be clear, positive and
convincing. The rule that the employer bears the burden of
proof in illegal dismissal cases finds no application here
because the respondents deny having dismissed the
petitioners.”

42. In the case at bar, complainants-appellees claimed that they


were dismissed (constructive) as they were barred from entering the
premises of AVIGI. However, a review on the records of the case
would show that there is hardly any evidence on record so as to meet
the quantum of evidence required, i.e., substantial evidence to prove
such claim but by NO OTHER THAN THEIR OWN BARE,
UNCORROBATED and thus, SELF-SERVING allegations. Absent any
showing of an overt or positive act proving that herein respondents-
appellants AVIGI had dismissed complainants-appellees, there is no
dismissal to speak of much more there is no way to entertain the
question of its illegality/legality. Hence, the claim for illegal
dismissal cannot be sustained.

43. With due respect, we humbly request before this Honorable


Commission for the consideration of the true and actual incidents that
transpired on why complainants-appellees left or abandoned their post
as personal helpers of Glorieta Almazan, thus:

44. Complainants - Appellees RBB and CVL were working


with respondent-appellant Glorieta as personal helpers in which they
assisted Glorieta in all her transactions, including transaction of
Glorieta with AVIGI. Glorieta works as a consultant of AVIGI. Thus,
Glorieta afforded the complainants-appellees trust and confidence.

7
G.R. No. 168664, May 4, 2006, 489 SCRA 534, 544-545.
45. The trust and confidence afforded by Glorieta was however
abused by complainants through the commission of the following:

a) RBB and CVL committed grave error in the


purchase of vehicle from Hendrich Espejo.
b) RBB and CVL acquired, without the consent
of Glorieta or AVIGI, two incomplete checks
and withdrew the same by completing and
presenting the checks to drawee bank.
These acts of theft were found out after the
conduct of external audit. Attached as
Annex “____” is the certification of Mr.
Reynante Agpaoa who conducted the
external audit of AVIGI’s financials for the
year 2015.

46. A criminal case was filed against complainants-appellees


herein due to the above-described acts. Attached as Annex “___” is the
resolution of the City Prosecutor’s Office of Santiago City finding
probable cause to the crimes committed by complainants-appellees
herein.

47. Furthermore, the filing of this Labor case is only a “front-


act” of the Complainants-Appellees to cover-up their acts of
abandoning their post as personal helpers of Glorieta Almazan after
committing the crimes above-mention. The instant case is a pure
harassment and it is so unfortunate that Complainants-Appellees used
the authority of the DOLE office to cover-up the real status of their
employment. With much regret, it is so discouraging to imagine that if
the complainants would be favoured for their bare, uncorroborated and
self-serving allegations of illegal dismissal, then it is a mockery to our
justice system to award the wrong doing of the RBB, CVL and EDL and
would be a bad precedent to the other employees. This is good as
saying, employee will just voluntarily abandon their work to the
damage and prejudice of the employer but still be awarded in the end.

The Labor Arbiter seriously


erred in awarding
complainant-appellees’
monetary claims, to the
damage and prejudice of the
respondent-appellant
AVIGI.
48. To reiterate, complainants-appellees are personal helpers of
Glorieta Almazan and this case is a clear showing of absence of
employer-employee relationship between the parties with regards to
the alleged time keeper position. Further, there is no proof by
substantial evidence that Glorieta dismissed complainants-appellees
from their post as a personal helpers. They were never dismissed from
the service. If they find themselves no longer in the service to Glorieta,
that is due to the unlawful acts they committed against Glorieta and
AVIGI. Having all these circumstances, there is no dismissal to speak
of, not even to entertain its validity or illegality. In effect, the money
claims of complainants-appellees should likewise be denied and
FALL.

49. As to the award of backwages, proportionate 13th month


pay on backwages and separation pay (in lieu of reinstatement), these
awards are only granted to illegally dismissed employees but in the
absence of such findings, the same should not be granted.

50. Considering all of the above, the findings made by Labor


Arbiter Baricaua as to the issue of illegal dismissal and awarding of
monetary benefits in favor of herein complainant-appellees is
seriously erroneous, thus if not corrected will cause damage to the
prejudice of herein respondent-appellant AVIGI.

51. While the Constitution is committed to the policy of social


justice and the protection of the working class, it is erroneous that
every labor dispute will be automatically decided in favor of labor.8
Management also has its rights which are entitled to respect and
enforcement in the interest of simple fair play.9 Out of its concern
for the less privileged in life, the Court has inclined, more often than
not, toward the worker and upheld his cause in his conflicts with the
employer.10 Such favoritism, however, has not blinded the Court to the
rule that justice is in every case for the deserving, to be dispensed in
the light of the established facts and the applicable law and doctrine.11
(emphasis supplied ours)

8
Javier v. Fly Ace Corporation, G.R. No. 192558, February 15, 2012, 666 SCRA 382, 399-400
9 Id. at 400
10
Id.
11 Id.
RELIEF

WHEREFORE, it is most respectfully prayed for before this


Honorable Commission that the DECISION dated December 29, 2017
issued by Labor Arbiter Ma. Lourdes Baricaua, declaring complainant-
appellees ROCHELLE B. BERGADO, CHLOE GERALDINE V.
LAGISMA, and ELIEZAR D. LAGISMA illegally dismissed and
ordering payments of the monetary awards, be REVERSED and SET
ASIDE, and a new one be issued DISMISSING the instant case.

Other just and equitable reliefs under the circumstances are also
prayed for.

RESPECTFULLY SUBMITTED.

28 January, 2018, Santiago City, Isabela for Quezon City.

ATTY. FERNANDO R. TULLAO, CPA


(Counsel for Respondent-Appellant)
2F Insular Life Bldg., Maharlika Highway,
Villasis, Santiago City
IBP Lifetime No.: 015305
PTR No. 2399640 / 01-04-17 / Isabela
Attorney’s Roll No.: 62914
MCLE Compliance No. V-0024119, 10 October 2016

Copy furnished:

ATTY. RHODERICK C. TAGARUMA


(Counsel for the Complainant-Appellee)
Public Attorney’s Office
Carig, Tuguegarao City, Cagayan

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