Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region, Quezon City

____________ DIVISION

RAQUEL S. QUILLOSA
Complainant.

NLRC LAC CASE NO. _______________

-versus- NCR CASE NO. 08-09585-14
Hon. Remedios Marcos
SJ GAS AND APPLIANCE CENTER, INC.
CORAZON SAN JUAN ./ RONALD VILLANUEVA
Respondents.
x--------------------------------------------------x

MEMORANDUM OF PARTIAL APPEAL

COMES NOW COMPLAINANT (APPELLANT), through counsel and unto this

Honorable Office most respectfully states that:

TIMELINESS OF THE APPEAL

This is an APPEAL of the decision of the Honorable Arbiter dated August 28,
2013 which DISMISSED the complaint for illegal dismissal file by the complainant
who is an OVERSEAS FILIPINO WORKER (OFW). The Decision was received by
the undersigned counsel on October 1, 2013, giving the complainant until October
11, 2013 to file the appeal in conformity with the 2011 NLRC Rules of Procedure.

PARTIES

COMPLAINANT is of legal age, Filipino, with address at 43 Gutierrez

Compound, Bagumbayan, Taguig where she can be served with notices, orders,
pleadings and other processes;

Respondent SJ GAS AND APPLIANCE CENTER, INC. is a company

organized under Philippine Laws, while CORAZON SAN JUAN ./ RONALD
VILLANUEVA are the responsible officers thereof, with address at 25 Paso St.,
Bagumbayan Taguig where they could be served with summons, notices and other
legal processes.

STATEMENT OF FACTS

Complainant is HUB OPERATOR / SALES CLERK under the REGULAR

employment of respondents who are engaged in the sale of LPGs. She was
assigned at the KAPITOLYO-PASIG BRANCH of the company, located at 818 Bldg,
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169, Pasig Blvd., Kapitolyo, Pasig. She has been working for the respondents since
September 1, 2011 with a work schedule from 7:00 AM to 6:00 PM, Monday to
Saturday. For her work, she was paid only the sum of Php380.00 per day without any
Overtime Pay, 13th month pay, or SILP. As proof thereof, attached herewith are the
PAYSLIP of the complainant as ANNEX A and series.

Complainant diligently and faithfully performed all her duties and

responsibilities until her illegal dismissal on April 30, 2014. According to the
complainant, since 2012 she and her co-workers have been requesting respondent
Villanueva (Sales Manager) to increase her salary to at least that of the minimum
wage. Unfortunately, their requests fell on deaf ears as according to Villanueva,
“Ganoon lang ang pasahod ng kumpanya.” This left the complainant with no other
choice but to file a complaint with the NLRC through the SENA sometime on July 25,
2014 so that that her valid grievances will be looked into.

On July 28, 2014, at around 1:00P.M., AFTER LEARNING ABOUT THE

CASE FILED BY THE COMPLAINANT, respondent Villanueva, together with Mary
Ann Carpio (Office Administrator) and Mary May Bandong (HR officer) immediately
conducted a SURPRISE ACTUAL INVENTORY on all the sales and product
inventories of complainant’s branch. Right there and there, respondents accused the
complainant of having alleged shortages for the months of January, February and
April 2014. Respondents even forced the complainant to go with them to the local
Barangay Hall for “recording” or blotter purposes at around 4:00P.M. Respondents
confiscated her company cell phone and the keys to the branch office.
THEREAFTER, SHE WAS NO LONGER ALLOWED TO WORK. When the
complainant tried to go back to work on July 30, 2013 (July 29 is a holiday), she
found out that she was already REPLACED by Ms. Vangie Cerujano. Her earned
salary for the month of July was likewise never given to her.

Hence, this complaint for illegal dismissal. During the mandatory conference,
respondents never denied the fact that the complainant was already dismissed from
work. Neither did they make any offer to the complainant to return to work. ADDING
SALT TO INJURY, respondents even had the audacity to file a CRIMINAL
COMPLAINT against the complainant for alleged QUALIFIED THEFT dated
AUGUST 7, 2014, a copy of which is hereto attached as ANNEX B, in order to
coerce the complainant from withdrawing this labor complaint.

THE ISSUES

1. WAS THE COMPLAINANT ILLEGALLY DISMISSED?

2. IS THE COMPLAINANT ENTITLED TO HER MONEY CLAIMS?
3. IS THE COMPLAINANT ENTITLED TO ACTUAL, MORAL AND
EXEMPLARY DAMAGES, PLUS ATTORNEY’S FEES?

ARGUMENTS AND DISCUSSION

COMPLAINANT WAS ILLEGALLY DISMISSED

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 Complainant no doubt was a REGULAR EMPLOYEE of the respondents
where she worked since 2011. As a Hub Operator / Sales Clerk, her work is
absolutely necessary and desirable to the usual business of the respondents. Being
a regular employee, complainant is therefore entitled to SECURITY OF TENURE as
enshrined in the Constitution and protected by law.

In the case at bar, it is clear that the complainant was ILLEGALLY and
UNJUSTLY DISMISSED right after she complained about the low salary she was
receiving with the Honorable NLRC, To reiterate, the complainant was only receiving
the amount of Php380 per day which is way below the minimum wage of Php466.00
per day.

NO notice to explain was ever given to the complainant; NO due process was
afforded to the complainant; and, NO notice of termination was given to him, in
complete DISREGARD of the law. As explained by the Supreme Court in the case
of JARDIN vs. NLRC [G.R. No. 119268. February 23, 2000]:

As consistently held by this Court, termination of employment MUST

be effected in accordance with law. The just and authorized causes for
termination of employment are enumerated under Articles 282, 283 and 284
of the Labor Code. The requirement of notice and hearing is set-out in Article
277 (b) of the said Code. Hence, petitioners, being employees of private
respondent, can be dismissed only for just and authorized cause, and after
affording them notice and hearing prior to termination. In the instant case,
private respondent had no valid cause to terminate the employment of
petitioners. Neither were there two (2) written notices sent by private
respondent informing each of the petitioners that they had been dismissed
from work. These lack of valid cause and failure on the part of private
respondent to comply with the twin-notice requirement underscored the
illegality surrounding petitioners’ dismissal. (Emphasis ours.)

The respondents are in fact guilty of violating Art. 118 of the Labor Code
which provides that:

Art. 118. RETALIATORY MEASURES. It shall be UNLAWFUL for an

EMPLOYER to refuse to pay or reduce the wages and benefits, discharge or
in any manner DISCRIMINATE against any employee who has filed any
COMPLAINT or instituted any proceeding under this Title or has testified or is
about to testify in such proceedings. (Emphasis ours.)

Accordingly, when the complainant was dismissed by the respondents, her

constitutional right to SECURITY OF TENURE was clearly violated. This was her
reward after faithfully serving the respondents since 2011.

COMPLAINANT IS ENTITLED TO REINSTATEMENT & FULL BACKWAGES

As a direct consequence of complainant’s unjust termination from service

without due process of law, the complainant is entitled to IMMEDIATE
REINSTATEMENT with FULL BACK WAGES and SALARIES. Back wages represent

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the compensation which an employee could have earned but was not collected
because of the unjust dismissal. In general, it is granted on ground of equity for
earnings lost due to illegally effected termination. As clearly stated under Article 279
of the Labor Code, “An employee who is unjustly dismissed from work shall be
entitled to reinstatement without loss of seniority rights and other privileges and to
his full back wages inclusive of allowance, and to his other benefits of their monetary
equivalent computed from the time his compensation was withheld from him up to
the time of his actual reinstatement.”

Thus, an illegally dismissed employee is entitled to two reliefs: backwages

and reinstatement. The two reliefs provided are separate and distinct. In instances
where reinstatement is no longer feasible because of strained relations between the
employee and the employer, separation pay is granted. In effect, an illegally
dismissed employee is entitled to either reinstatement, if viable, or separation pay if
reinstatement is no longer viable, and backwages. The normal consequences of
respondents’ illegal dismissal, then, are reinstatement without loss of seniority rights,
and payment of backwages computed from the time compensation was withheld up
to the date of actual reinstatement. Where reinstatement is no longer viable as an
option, separation pay equivalent to one (1) month salary for every year of service
should be awarded as an alternative. The payment of separation pay is in addition to
payment of backwages. (MACASERO vs. SOUTHERN INDUSTRIAL GASES
PHILIPPINES; G.R. No. 178524, January 30, 2009)

COMPLAINANT IS ENTITLED TO THE PAYMENT OF MONEY CLAIMS

To reiterate, complainant was merely paid paltry sum of PHP 380.00.per 11

HOURS DUTY (7:00AM to 6:00PM without any overtime pay, from Monday to
Saturday. He Complainant was likewise NOT paid her 13th month pay and SILP All
these facts are clearly proven by her PAYSLIPS. (Annex A.)

Also, as provided under Republic Act. 8188, the respondents must be ordered
by the Honorable Office to pay “DOUBLE THE UNPAID BENEFITS” OWING TO THE
EMPLOYEE. Thus, Republic Act 8188 provides that:

SECTION 1. Section 12 of Republic Act Numbered Sixty-seven

hundred twenty- seven is hereby amended to read to as follows:

The employer concerned shall be ordered to pay an arnount

equivalent to DOUBLE the unpaid benefits owing to the employees: Provided.
That payment of indemnity shall not absolve the employer from the criminal
liability imposable under this Act.

RESPONDENTS ARE LIABLE FOR DAMAGES AND ATTORNEY’S FEES

In illegal dismissal cases, moral and exemplary damages are awarded to

compensate the affected employee for diverse injuries such as mental anguish,
besmirched reputation, wounded feeling and social humiliation suffered as a
consequence of the termination. In the case at bar, the respondents DISMISSED the
complainant in RETALIATION for her filing a LABOR COMPLAINT against them.

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Clearly, the respondents are in BAD FAITH for their wanton disregard of the law and
are, therefore, liable for moral and exemplary damages.

Finally, in the pursuit of justice, the complainant was forced to secure the
services of counsel, thereby incurring legal fees in the process. Accordingly,
respondents should also be ordered to pay attorney’s fees equal to ten percent of the
amount of wages recovered as provided for in Art. 111 of the Labor Code.

Settled is the rule that in actions for recovery of wages, or where an employee
was forced to litigate and, thus, incur expenses to protect his rights and interests, a
monetary award by way of attorney’s fees is justifiable under Article 111 of the Labor
Code; Section 8, Rule VIII, Book III of its Implementing Rules; and paragraph 7,
Article 2208 of the Civil Code. The award of attorney’s fees is proper, and there
need not be any showing that the employer acted maliciously or in bad faith when it
withheld the wages. There need only be a showing that the lawful wages were not
paid accordingly. (Kaisahan vs. Manila Water Company, G.R. NO. 174179,
November 16, 2011)

In closing, time and again, the Supreme Court has invariably held that in
termination cases, the burden of proving that the dismissal of an employee was for a
just cause rests on the employer and his failure to do so would result in a finding that
the dismissal is unjustified. The right of an employee to security of tenure is
protected by the Constitution which must be respected unless a just cause exists for
the termination of employment. The determination of the existence and sufficiency of
a just cause must be exercised with fairness and in good faith and after observing
due process." (FIL-PRIDE SHIPPING vs. NLRC, G.R. No. 97068, March 5, 1993)

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this

Honorable Office to render judgment in favor of the complainant and against the
respondents, as follows:

1. To declare the dismissal of the Complainant as ILLEGAL, the same having

been effected without a just cause and without due process;
2. To order the respondents to REINSTATE the complainant to the former
position without loss of seniority rights and other privileges, and if this is no
longer possible, to pay the complainant SEPARATION PAY.
3. To order the respondents SOLIDARILY liable to pay the complainant full
BACK WAGES, inclusive of allowances and other benefits to be computed
from the time compensation was withheld up to actual reinstatement;
4. To order the respondents to pay the complainant her MONEY CLAIMS
consisting of UNDERPAYMENT of SALARY and UNPAID 13TH MONTH PAY,
OVERTIME PAY, SILP, and her LAST EARNED SALARY.
5. To pay the complainant DOUBLE the amount owing to him pursuant to
Republic Act 8188.
6. To award the complainant moral and exemplary damages, plus Attorney’s
Fees.

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 Other just and equitable remedies are likewise prayed for.

Quezon City, September 11, 2014.

ATTY. PEARLITO B. CAMPANILLA

Suite B 2nd Floor Overland Park Bldg.,
No. 245 Banawe St. cor. Quezon Ave., Quezon City
Roll 37522 / IBP Life 010564 2-3-12 Pasig
PTR 9019138 1-7-14 QC / MCLE IV - 0018064

Copy Furnished:
SJ GAS AND APPLIANCE CENTER, INC.
CORAZON SAN JUAN ./ RONALD VILLANUEVA
25 Paso St., Bagumbayan, Taguig

REPUBLIC OF THE PHILIPPINES )

QUEZON CITY )

VERIFICATION AND CERTIFICATION

I, RAQUEL S. QUILLOSA, of legal age, after having been duly sworn in accordance
with law, depose and state that I am the complainant in the above-stated case; I caused
the preparation of the foregoing position paper; I have read the contents thereof and the
facts stated therein are true and correct of my personal knowledge and/or on the basis of
authentic documents and records in my possession; I have not commenced or filed any
other action or proceeding involving the same issues in the Supreme Court, the Court of
Appeals, or any other tribunal or agency; To the best of my knowledge and belief, no such
action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other
tribunal or agency; If I should thereafter learn that a similar action or proceeding has been
filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or
agency, I undertake to report that fact within five (5) days therefrom to this Honorable
Commission.

RAQUEL S. QUILLOSA

SUBSCRIBED AND SWORN to before me this ______________________,

Quezon City, affiant is known personally to this Notary Public.

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