Republic of the Philippines

COURT OF APPEALS
Cebu City

SPECIAL TWENTIETH (20TH) DIVISION

EDWARD T. CATUBIG,
Petitioner,

CA GR. Sp. No. 10670

- versus -

NATIONAL LABOR RELATIONS COMMISSION,

SEVENTH DIVISION, GOTHONG SOUTHERN
SHIPPING LINES, INC., AND VENIA D. ALCORDO
Respondents.
X-------------------------/

COMMENT ON MOTION FOR RECONSIDERATION

(Private Respondents)

PRIVATE RESPONDENT, through undersigned counsel and unto the

Honorable Court of Appeals, most respectfully state and avers that:

1. PRIVATE RESPONDENTS, through counsel, received on March 3, 2019

the Honorable Court of Appeals’ Resolution dated February 28, 2019
directing the Respondents to file a COMMENT on the subject MOTION
FOR RECONSIDERATION filed by the Petitioner of this Honorable Court of
Appeals’ Decision dated October 26, 2018 dismissing the above-entitled
Petition for Certioriari affirming the 31-August-2016 Decision AND 28-
October-2016 Resolution of the National Labor Relations Commission,
Seventh Division, in NLRC Case No. VAAC-06-000385-2016 which declared
petitioner’s employment dismissal valid and lawful;

2. Petitioners, in their Motion for Reconsideration argues that the Private

Respondents failed to show that it had incurred “substantial amount of
loss suffered by the Respondent GSSLI on account of his gross negligence
XXX.” Had there been no complaints in the handling of the container vans
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which are under the supervision of the Petitioner, the Private Respondent
would not have required the Petitioner to explain the incidents on the
dates indicated in the Notices to Explain. The grossly negligent acts of the
Petitioner is the cause as to why the Private Respondent issued multiple
Notice to Explain to the herein Petitioner because the said acts caused the
latter damage. Petitioner’s failure to refute the validity of the Notices to
Explain warrants the conclusion that there are indeed customer
complaints and substantial losses suffered by the Private Respondent.

3. Petitioner forgets that the best evidence as to the truth of the

allegations were his Responses to the Notices to Explain which are his own
ADMISSION to all of his negligent acts. In the 4 November 2010 Notice to
Explain (“NTE”, for short), Petitioner admitted that he did not ensure the
inspection of con van GS 1-661 prior to its release and merely disclaimed
that it was his liability to inspect it. In the 30 January 2015 NTE, he did not
conduct an inspection on van GSS 1-542 because based on his mere belief
and without any initiative to inquire as to the correctness of such belief,
that there was no procedure of making inspection on loaded container
vans. In the 11 February 2015 NTE, Petitioner admits that he did not report
the presence of the black paint because he deemed it not his responsibility
to do so considering that he was not the one who splashed the paint. In
his 17 April 2015 NTE, Petitioner feigns ignorance and merely claims that he
does not know about the elevation of information on the status of
container vans. Petitioner frequently uses as a defense his ignorance
whenever he is served with a Notice to Explain when by the nature of his
work as the operation staff of the Private Respondent all of the said
incidents were well within his supervision.

4. The decision of this Honorable Court of Appeals, in affirming the

decisions of the Labor Arbiter and the NLRC, is justified based on gross
and habitual neglect of duty under Article 297 of the Labor Code and under
Section 2.2, Chapter 4 on the Code of Conduct of the Private Respondent.

5. Under Article 297 (b) [formerly Article 282 (b)] of the Labor Code, an
employer may terminate an employee for gross and habitual neglect of
duties. Neglect of duty, to be a ground for dismissal, must be both gross
and habitual.1 Petitioner was only terminated after his third offense of
gross negligence, taking into consideration his abandonment of post
committed in two occasions and an instance of simple negligence.

6. Section 2.2, Chapter 4 on the Code of Conduct of the Private

Respondent also provides:

1
Acebedo Optical v. NLRC, 554 Phil. 524, 544

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 Gross Negligence : Blatant disregard to perform the required care
of diligence demanded by the situation amounting to wanton or reckless
disregard of establishment rules and regulations which punishable by
Dismissal on the 3rd offense.

Under the said Section of the Private Respondent’s Code of

Conduct, commission of gross negligence for at least three (3) times
would warrant a sanction of dismissal. As duly affirmed by this Honorable
Court of Appeals, this was already the third (3rd) time the Petitioner
committed an act of gross negligence thereby putting the said Section of
Private Respondent’s Code of Conduct into effect. Management
prerogative refers to the right of an employer to regulate all aspects of
employment, such as the freedom to prescribe work assignments,
working methods, processes to be followed, regulation regarding transfer
of employees, supervision of their work, lay-off and discipline, and
dismissal and recall of work.2 The execution of a Code of Conduct and the
implementation of one of its provision is already recognized by the
Supreme Court as a valid exercise of its management prerogative which in
turn would validate Petitioner’s dismissal.

7. Furthermore, having duly substantiated the infractions committed by

the Petitioners, this Honorable Court of Appeals can use the principle of
totality of infractions to justify the penalty of dismissal. Regardless of the
nomenclature of the words used in the Public Respondent NLRC’s decision
in finding for the Private Respondents, the facts does not change that the
acts of the Petitioner constituted gross negligence which would warrant
his dismissal. The “lackadaisical work behavior”3 and “below average
work performance”4 would still warrant the Petitioner’s dismissal if it is
found to be gross and habitual negligence or in violation of the Private
Respondent’s Code of Conduct.

8. Petitioner should not be awarded service incentive leaves pay, overtime

pay, and nightshift differentials since he failed to establish the dates when
he is entitled to the said benefits. The payslips which the Petitioner used
to substantiate his claim for overtime pay should also be used as evidence
against him since payslips presented already included overtime pay in the
computation of his salary.

PRAYER

2
Baybay Water District v. Commission on Audit, 425 Phil. 326, 343-344 (2002).
3
NLRC Decision promulgated on Aug. 31, 2016, p.4
4
Id. At p.6

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 WHEREFORE, respondent most respectfully prays to this Honorable
Court of Appeals to DENY the Motion for Reconsideration and AFFIRM its
Decision dated October 26, 2018.

Respectfully submitted, Cebu City, Philippines, April , 2019

MALILONG LAW OFFICES

Counsel for the Respondent Gothong & Venia Alcordo
2/F Baseline Residences,
Juana Osmeña St., Cebu City

By:

RICHER P. DEVERATURDA
Roll No. 66772, Admitted at Bar: 5/23/2017
IBP No. 5509, 01/03/2018, Cebu
PTR No. 8843112, 01/03/2018, Cebu City
MCLE Compliance No. VI-0010733, Valid until: 4/14/2022

NOTICE OF SUBMISSION

ATTY. PERR R. FEROLIN

Counsel for Plainitff-Appellant
Rm MO5, Mezzanine, Aniceta Bldg.,
Osmeña Blvd., Cebu City, 6000

THE DIVISION CLERK OF COURT

Twentieth (20th) Division
Court of Appeals, Cebu City

Greetings:
Please take notice that the foregoing COMMENT ON MOTION FOR
RECONSIDERATION shall be submitted for the kind consideration and
approval of the Honorable Court

RICHER P. DEVERATURDA

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 EXPLANATION

The foregoing COMMENT ON MOTION FOR RECONSIDERATION is

being personally filed in court and served on the opposing counsel by
private courier in view of the impracticability of personal service due to
distance.

RICHER P. DEVERATURDA

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