Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Cagayan De Oro City

___________________,
Proprietor
EG Supply
Petitioner, Case no. _______________
(NLRC Case No._______)

-versus-

__________________,
THE EXECUTIVE LABOR
ARBITER RHETT JULIUS J.
PLAGATA, AND THE SHERIFF
OF NLRC SUB-REGIONAL
ARBITRATION BRANCH NO. 09
DIPOLOG CITY
Respondent
s
x----------------------- x

ANSWER

(On the Petitioner’s ANNULMENT AND/OR MODIFICATION OF

COMPUTATION OF AWARD/WRIT OF EXCUTION, WITH
PRAYER FOR PRELIMINARY INJUNCTION)

Private Respondent, ______________, thru undersigned counsel, and

unto this Honorable Commission, most respectfully states that:

TIMELINESS OF THE ANSWER

In consonance with the Material Date Rule and to show forth the
timeliness of the filing of this Answer, herein private respondent respectfully
reiterate the following material dates:

1. The a Petition for ANNULMENT AND/OR

MODIFICATION OF COMPUTATION OF
AWARD/WRIT OF EXCUTION, WITH PRAYER FOR
PRELIMINARY INJUNCTION was filed by herein

Page 1 of 13
 Petitioner, Emma A. Mutia, proprietor, EJ Agricultural
Supply on 24 February 2017;

2. Herein private respondent received a copy of the afore-

stated Petition only on 07 March 2017;

3. Herein Private Respondent is given 10 calendar days under the

2011 NLRC Rules of Procedure, as amended, from receipt of the
assailed the Petition, or until 17 March 2017 to file this Answer;

4. Private Respondent, ____________, is filing and serving

this Memorandum of Appeal on 09 November 2015.

PREFATORY STATEMENT

Well-settled is the rule that once the employee has set out with
particularity in his complaint, position paper, affidavits and other documents
the labor standard benefits he is entitled to, and which he alleged that the
employer failed to pay him, it becomes the employer’s burden to prove that
it has paid these money claims. One who pleads payment has the burden
of proving it, and even where the employees must allege non-payment,
the general rule is that the burden rests on the employer to prove
payment, rather than on the employees to prove non-payment. The
reason for the rule is that the pertinent personnel files, payrolls, records,
remittances, and other similar documents — which will show that
overtime, differentials, service incentive leave, and other claims of the
worker have been paid — are not in the possession of the worker but in
the custody and absolute control of the employer1.

STATEMENT OF THE CASE

At the onset, herein private respondent ___________ filed a request for

assistance before the Single-Entry Approach (SENA) of the Department of
Labor and Employment in Zamboanga Del Norte field Office claiming for
unpaid holiday, overtime pay, premium pay and monetary value of his
service incentive leaves during his tenure as an employee of herein
Petitioner/s, __________ and its owner _________;

Hereafter, several conciliation-mediation conferences were conducted

on 02 June 2015, 16 June 2015 and 02 July 2015, however, herein parties
failed to amicably settle the instant controversy. Hence, a Complaint was
filed against herein EG and _________ on 02 July 2015;

1
G.R. No. 188659, February 13, 2013

Page 2 of 13
 Ancillary thereto, summons was issued setting the mandatory
conciliation/mediation conference on 15 July 2015. However, during the
scheduled conference, herein parties were not able to reach a compromise
agreement. The case was referred to Executive Labor Arbiter, Rhett Julius J.
Plagata (LA Plagata, for brevity), of the National Labor Relations
Commission Sub-Arbitration Unit, Dipolog City (NLRC SAU, for brevity)
for appropriate action;

An Order, dated 15 July 2015 was issued by Executive Labor Arbiter,

Rhett Julius J. Plagata (LA Plagata, for brevity), NLRC SAU, wherein herein
parties were directed to submit their respective verified position papers;

On 06 October 2015, LA Plagata issued a Decision dismissing all the

claims of the herein __ for lack of merit. LA Plagata ruled that ____ failed to
show any competent evidence to prove that he rendered work during those
days and payments for premium pay for rest days and holidays and overtime.
Claim for Service Incentive Leave Pay (SIL, for brevity) was also likewise
denied as it has been complied with, as per Notice of Assessment 2 issued by
the DOLE;

On 9 November 2015, _____ filed a Memorandum Appeal before the

National Labor Relations Commission (NLRC DIV, for brevity), 8th
Division, Cagayan de Oro City praying to Honorable Commission to
reversed and set aside Decision, dated 06 October 2015 and made the Eg
Agri and its owner ______, jointly and severally liable for payment of
Overtime Pay Holiday, Premium Pay for work rendered on rest days and
monetary equivalent of _____ SIL, all computed from inception of his
employment with EG Agri and its owner _______;

On 30 March 2016, NLRC DIV issued a Decision partially granting the

instant appeal and modified the Decision, dated 06 October 2015, ordering
___________ to pay _________ the premiums for overtime work rendered
and for work performed during holidays, and also his SIL pay.

Subsequently, on 18 April 2016, herein Petitioners filed a Motion for

Reconsideration, praying that the decision of the Honorable NLRC DIV
granting premiums for “overtime work rendered and for work performed
during holidays, and also his SIL pay” be reconsidered and/or vacated, and a
new decision be issued, to affirm the Decision, dated 06 October 2015
rendered by LA Plagata.

2
Dated 24 October 2014.

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 Consequently, on 16 June 2016, the NLRC DIV acted upon the Motion
for Reconsideration, dated 18 April 2016, issued a Resolution thereby
denying the same for lack of merit. It further held that no new matter has
been raised nor presents any compelling reason for the NLRC DIV to act
upon which would warrant an alteration or modification, much less reversal
of the assailed Decision, dated 30 March 2016.

Corollary, on 30 August 2016, an Entry of Judgment was issued by the

NLRC DIV upon its 16 June 2016 Resolution and the same became FINAL
and EXECUTORY on 17 August 2016, which was thereby entered recorded
in the Book of Entries of Judgment.

Accordingly, on 3 November 2016, _____, through counsel, filed a

Motion for Issuance of the Writ of Execution, in order to satisfy the awards
mandated by in the Decision, dated 30 March 2016. Thus, a Notice of Pre-
Execution Conference, dated 16 November 2016 was issued by the NLRC
DIV, notifying the counsels of the herein parties the set pre-execution
conference before the NLRC, Sub-Regional Arbitration Branch No. 9 on 14
December 2016.

On 14 December 2016, herein petitioners failed to attend the scheduled

pre-execution conference. Then, on the same date, LA Plagata issued an
Order, directing the parties to submit their respective computation of awards
for premiums for overtime work rendered and for work performed during
holidays, and also his SIL pay, pursuant to Resolution, dated 30 March 2016
and the Motion, dated 3 November 2016 shall be deemed submitted for
Resolution with specific computation of awards.

In compliance therewith, on 27 December 2016, herein _____

submitted his computation pursuant to Order, dated 14 December 2016.

On 12 January 2017, an Order was issued by LA Plagata, whereby

directing the issuance of a Writ of Execution for the enforcement of the final
awards in the instant case based on the foregoing computation:

Service Incentive Leave

P315.00 x 10 years x 5 days = P 15, 750.00
Holiday Pay
As computed by complainant P 11, 340.00
Overtime Pay
On regular holiday P 175, 000.00
On holidays P 11, 700.00

P 213, 790.00

Page 4 of 13
 On 17 January 2017, herein petitioners filed a consolidated Motion, to
wit: Reconsideration of the Order, dated 12 January 2017, re-computation
and to suspend issuance of Writ of Execution/Withhold its Implementation.

Responsively, on 16 February 2017, Hon. LA Plagata issued an Order

stating its inaction upon the Motions, dated 12 January 2017 due to Motion
for Reconsideration of any order of the Labor Arbiter is a prohibiting
pleading in accordance to Section 3, Rule V, 2011 NLRC Rules on
Procedure, as amended. Simultaneously, a Writ of Execution was thereby
issued, the dispositive portion of which as follows:

“NOW, WHEREFORE, you are hereby

commanded to go to the premises of EJ
Agricultural Supply and/or Emma Mutia along
Quezong Avenue, Barra, Dipolog City or anywhere
in the Philippines, where it may have properties or
assets not exempt from execution, collect from any
of them the sum of P 213, 790.00, plus execution
fee in the sum of P 1, 637.90 and deposit fee of P
1, 078.95, or the total sum of P 216, 506.85, and
remit said total amount to this Office for further
disposition. Should you fail to collect the same in
cash, you are further commanded to satisfy said
judgment award and fees out of the personal
properties of the respondents, and if there be none,
out of its real properties, all in accordance with
law.

x x x x x“

Notably, on 24 February 2017, herein petitioners filed an Annulment

and/or Modification of Computation of Award/Writ of Execution, with
Prayer for Preliminary Injunction, seeking to annul or modify the two (2)
Orders of LA Plagata, in relation to the decision NLRC Case No. Sub-RAB-
09-07-10033-2015 Dipolog City.

Hence, this Answer.

GROUNDS RELIED UPON

I.

THERE IS NO SERIOUS ERROR

OF FACTS WHICH WILL CAUSE

Page 5 of 13
 DAMAGE OR INJURY TO THE
PETITIONER

II.

THERE FINAL COMPUTATION

OF MONEY AWARD IS JUST,
REASONABLE AND WITHIN
THE BOUNDS OF THE NLRC 8TH
DIVISION DECISION

ARGUMENTS/DISCUSSIONS

Private respondent has

adduced sufficient
evidence for his
entitlement of the
premiums for overtime
work rendered and for
work performed during
holidays and service
incentive leave pay.

First and foremost, in the pending Petition before this Honorable

Commission, the herein petitioner quoted a pertinent portion of the Decision,
dated 30 March 2016, which was promulgated by the NLRC DIV to wit:

“Least-wise, the complainant has presented

the photocopy of Logbook (Daily Attendance
Sheet)5, the authenticity of which is not rebutted by
the respondent, showing that he rendered overtime
work and had worked during holidays but without
having been paid of the corresponding premiums
therefor.”6

By citing the particular provision clearly indicates that herein

petitioner undisputedly admit the authenticity and truthfulness of contents
therein. As a matter of fact, herein petitioner relied on its contents to prove
her averments with regard to her own computation of overtime work
rendered and for work performed during holidays. It must be noteworthy to
remember the same document has been presented by ____ on his appeal

Page 6 of 13
before the NLRC DIV. Thus, the fact that there are unpaid regular and
holiday overtime time pay, indeed is true and exist.

In the case of Heirs of Ridad, et. al, v. Jusay3, the Supreme Court ruled
that:

“Well-settled is the rule that once the employee has

set out with particularity in his complaint, position
paper, affidavits and other documents the labor
standard benefits he is entitled to, and which he
alleged that the employer failed to pay him, it
becomes the employer’s burden to prove that it
has paid these money claims. One who pleads
payment has the burden of proving it, and even
where the employees must allege non-payment, the
general rule is that the burden rests on the
employer to prove payment, rather than on the
employees to prove non-payment. x x x x”

It is settled that the employer has the burden to prove that he/she has
paid such claims of unpaid benefits. As per determination of the NLRC DIV
in its Decision, dated 30 March 2016, the logbook shows that regular and
holiday overtime pay has not been paid by herein petitioner. There is no
evidence to show that they are unpaid nor any remuneration to such effect
has been received by ____.

Indubitably, entitlement of ____ to service incentive leave pay (SIL)

is warranted. Applying the above-stated rule, since there is no evidence
adduced to prove that the employer pay SIL benefits unto _____, fact of
unpaid SIL pay exist. To augment, the NLRC DIV found no rebuttal on the
part of the petitioner, hence, there is no need further evidence on the part of
the employee, having particularly set it out in his complaint, position paper,
affidavits and other documents.

II

The computation of service

incentive leave pay (sil) is correct.

The petitioner submits the a computation as follows:

”SIL- since employment

– 2005 1,200=@240/day x 5days
2006-2009 4,200=@280/day x 5days
3
G.R. No. 188659, February 13, 2013

Page 7 of 13
 2010-2014 6,000=@300/day x 5days
Total 11,400

According to the petitioner, the basis for the computation should be

premised on the current rates of the years they refer to.

The premised is incorrect. The basis for the computation shall be the salary
rate at the time of commutation.4 In the case of Auto Bus Transport Systems,
Inc. v. Bautista5, citing Fernandez v. NLRC6, the Supreme Court has the
occasion to hold that Service Incentive Leave is allowed to be converted in
money, thus:

“Service incentive leave is a right which accrues to every employee x

x x x" It is also "commutable to its money equivalent if not used or
exhausted at the end of the year." In other words, an employee who has
served for one year is entitled to it. He may use it as leave days or he may
collect its monetary value.x x x x (Emphasis Ours)”

Congruently, In the case of Republic Planters Bank v. NLRC & Santos7, the
Supreme Court has the occasion to describe the rationale behind
accumulation and conversion, thus:

“x x x x The conversion of leave credits into their cash equivalent is aimed

primarily to encourage workers to work continuously and with dedication
for the company. Companies offer incentives, such as the conversion of the
accumulated leave credits into their cash equivalent, to lure employees to
stay with the company. Leave credits are normally converted into their
cash equivalent based on the last prevailing salary received by the
employee. Considering all these, the accumulated leave credits should be
converted based on the upgraded salary of the retiree, which is the salary
rate of the rank next higher.”

Based from the foregoing, there is no basis to depart from the above-cited
computation as ruled by LA Plagata, in its Order, dated 12 January 2017.
The prevailing rate at the time of commutation is P 315, which is in 2015,
upon the time of ____ cessation from employment.

The computation of Regular and

Holiday Overtime Premium Pay is
correct

4
Azucena, The Labor Code, With Comments and Cases, 7th Edition, 2010 page 259.
5
G.R. No. 156367, May 16, 2005
6
G.R. No. 105892, 28 January 1998
7
G.R. No. 117460. January 6, 1997

Page 8 of 13
 Herein petitioner submits the computation as follows:

77 hours x 37.50 per hour = P2,887.50

To reiterate, in accordance with the facts stated in the Order, dated 30

March 2016, ____ suffered to work from 7:00 AM – 8:00 PM, and
sometimes till 9:00 PM or for more than eight (8) working hours 8, which is
way beyond the regular working hours. ________ was also subject to work
during his fixed rest day, which is on Sundays, upon request by herein
Petitioner, Emma Mutia, to conduct inventory of the rice store for about two
(2) hours. All of extended hours of work are not compensated. At the very
least, ________ incurred four (4) hours of daily overtime.

The contention of herein petitioner that the computation should be

only based on the Logbook, should fail. At the very least, the presentation
and offer of ________ of the said evidence is only to show that indeed
herein petitioner imposed overtime work and the same has is not
remunerated. As ruled by the Supreme Court in the case of Tenaza, et. al., v.
R. Villegas Taxi Transport & Villegas9, thus:

“It is an oft-repeated rule that in labor cases, as in

other administrative and quasi-judicial
proceedings, "the quantum of proof necessary is
substantial evidence, or such amount of relevant
evidence which a reasonable mind might accept
as adequate to justify a conclusion." x x x x .”

Indeed, it can be gleaned that the purpose of ________, in presenting

the Logbook, is to show the before the Honorable Court that ever since from
the beginning, herein petitioner failed to compensate extra hours of work
done ________. Nay, other than the logbook, there is no evidence to show
consistency of two (2) hours of overtime was being performed by ________.
Thus, the current computation should stand.

The petitioner also submits the following computation:

Holidays – 3 years (2011-2014) 30 days x 300/day

= P 9,000.00

8
Art. 83, The Labor Code: Normal hours of work. The normal hours of work of any
employee shall not exceed eight (8) hours a day.
9
G.R. No. 192998, April 2, 2014

Page 9 of 13
 The petitioner posits that the reckoning point of the three (3) year
prescriptive period should be counted from 2011-2014 as opposed to March
2012 to March 2015, should be rejected.

All money claims shall be filed within three (3) years from the time
the cause of action accrued, as categorically provided under Article 291 of
the Labor Code of the Philippines, thus:

Article 291. Money Claims. – All money claims

arising from employer-employee relations accruing
during the effectivity of this Code shall be filed
within three (3) years from the time the cause of
action accrued; otherwise they shall be barred
forever.

However, the Labor Code has no specific provision on when a

monetary claim accrues. Thus, again the general law on prescription applies.
Article 1150 of the Civil Code provides, as follows:

Article 1150. The time for prescription for all

kinds of actions, when there is no special provision
which ordains otherwise, shall be counted from
the day they may be brought. (Emphasis Ours)

The High Court, in the case of Anabe vs. Asian Construction, et.
10
al. , pronounced that, “the day the action may be brought is the day a claim
started as a legal possibility”.

Recalled from the records of the case, ________ has no knowledge

with regard to Holiday Overtime Premium Pay. He was not informed of his
benefits under labor standards, not until he inquired before the Department
of Labor and Employment that came in his knowledge of the said benefits
after his resignation on March 2015. Moreover, the Supreme Court, in the
recent case of Mirant (Philippines) Corporation & Bautista v. Caro 11, has
upheld the liberation construction rule in Labor, to wit

“This jurisdiction has adopted in the field of labor

protection a liberal stance towards the construction
of the rules of procedure in order to serve the ends
of substantial justice. This liberal construction in
labor law emanates from the mandate that the
workingman’s welfare should be the primordial
10
G.R. No. 183233, December 23, 2009
11
G.R. No. 181490, April 23, 2014

Page 10 of 13
 and paramount consideration. Thus, if the rules of
procedure will stunt courts from fulfilling this
mandate, the rules of procedure shall be relaxed if
the circumstances of a case warrant the exercise of
such liberality. x x x x”

Thus, the present 3 year prescriptive period, which is from March 2012 to
March 2015 should remained untouched.

The ten (10) regular holiday claim of the petitioner should likewise failed. In
2009, Republic Act No. 984912, was enacted, which add two (2) more regular
holiday from the original ten (10) regular holidays enjoyed in the
Philippines. From this foundation, there is no need for any evidence to prove
the existence and truthfulness on the matter. Thus, the twelve (12) regular
holiday should be followed, consequently, the 30 days holiday pay as
suggested by the petitioner cannot be allowed.

PRAYER

WHEREFORE, premises considered, in the highest interest of

justice, herein complainant-appellant most respectfully pray of this
Honorable Commission, that:

1. The Petition should be DENIED for reasons

aforementioned;

2. The Writ of Execution should STAND.

RESPONDENT, further prays for such other reliefs just and equitable
under the premises.

Pasig City for Dipolog City, Philippines, 17 March 2017.

By:

________________________
______________________

Copy Furnished: (Through LBC)

EXECUTIVE LABOR ARBITER RHETT JULIUS J. PLAGATA

12
An Act Declaring the Tenth day of Zhul Hijja, the Twelfth Month of the Islamic
calendar, a National Holiday for the Observance of Eiduladha, further amending for the
purpose Section 26, Chapter 7, Book I of Executive Order No. 292, otherwise known as
the Administrative Code of 1987, as amended.

Page 11 of 13
NLRC, Dipolog City

EXPLANATION OF MODE OF SERVICE

The foregoing Memorandum of Appeal has been made through LBC

due to lack of office messengers.

_____________________________

REPUBLIC OF THE PHILIPPINES)

City of Pasig . . . . . . . . ) S.S.

VERIFICATION

I, ___________________, of legal age, Filipino, married, and a

resident of Purok Bayanihan, Igot, Estaka, Dipolog City, Philippines, after
having been sworn to in accordance with law, do hereby depose and state,
that:

1. That I am the respondent in the case entitled

___________________. with NLRC Case No. _____________
that is now pending before the Honorable NLRC;

2. That I have caused the prep________ion of the foregoing

Answer to the Petition;

3. That I have read the contents thereof and that the

allegations therein are true and correct based on authentic
records and to the best of my personal knowledge;

4. That I have not commenced any action or proceeding

involving the same issues raised herein before the Supreme
Court, Court of Appels, or any other tribunal or agency;

Page 12 of 13
 5. No such action or proceeding is pending before the
Supreme Court, Court of Appeals, or any tribunal or agency;
and

6. Should I learn that similar action or proceeding has been

filed or is pending before the Supreme Court, Court of Appeals,
or any other tribunal or agency, we undertake to report said fact
to this Honorable Court within five (5) days from the date we
learn thereof;

7. That I am executing this Verification to attest to the truth

of the foregoing and for whatever legal purpose it may serve.

Dipolog City, Philippines 17 March 2017

FURTHER AFFIANT SAYETH NAUGHT

________________________

AFFIANT

SUBSCRIBED AND SWORN to before me on the date and place first

above written and I hereby CERTIFY that I have personally examined the
Affiant and I am fully satisfied that he has read and understood his Affidavit-
Complaint.

Doc. No. ____;

Page No. ____;
Book No. ____;
Series of 2015.

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