REPUBLIC OF THE PHILIPPINES

Municipal Trial Court in Cities

7th Judicial Region
Branch 6, Cebu City

JOSEPHINE R., Crim. Case No. M-CEB-19-02623-C

Plaintiff
-versus-
FOR: Violation of Sec 5 in relation to Sec 12 (c)
Of RA 10586 (Anti-Drunk and Drugged
Driving Act 2013
JAN MICHAEL,
Defendant
x------------------------------------------x

MEMORANDUM
PRIVATE RESPONDENT, by counsel, to this Honorable Court, in compliance with the

Resolution promulgated on 28 February 2010, a copy of which was received on 1 March 2010,

most respectfully states:

STATEMENT OF THE CASE and FACTS

Elevated to this Honorable Court on a Petition for Certiorari under Rule 65 is the decision of

the National Labor Relations Commission (“NLRC” for brevity), xxxxx Division, promulgated on 1

January 2009 and its Resolution promulgated on 1 July 2009.

For the appreciation of this Honorable Court, the private respondent reproduces herein the

pertinent facts relative to this case and briefly states:

The instant case stemmed from the Complaint of ABC against the petitioners for illegal
th 147
suspension, constructive dismissal, non-payment of 13 month pay and separation pay.

The private respondent was a regular and permanent employee of the petitioner

corporation. He was hired as a Warehouse Stockman on 1 January 2000, and was assigned in

xxxxxxxxxx. His latest salary was Three Hundred Fifty Pesos (P350.00) per day, including

147
Labor Arbiter’s Decision, p. 1.
PAO Code Book 170 of 375
 148
ECOLA, and he was tasked to work from 9:00 o’clock in the evening to 7:00 o’clock in the

morning from Mondays through Saturdays.

Sometime in the last week of October 2006, stocks of HP ink were reportedly missing.

Thus, on 3 November 2006, the private respondent was handed a notice by Mr. YY placing him

under preventive suspension. The notice states, among others, viz:

“Pending such investigation, above employees are hereby

suspended and barred from XYZ Company premises until
resolution of said case by the NBI. All personnel are enjoined
from discussing the case with above suspended person to
prevent contamination of evidence and testimonies and crime
scene”

The private respondent was, accordingly, constrained to go home.

The following day, the private respondent went to see petitioner ZZ at the latter’s office in

lxx. However, the guard on duty refused him admittance. It was even relayed to him by the said guard

that the owner had no time to talk to him.

Until the filing of the complaint, no return-to-work order was sent to the private respondent.
149
He tried to report back for work but was refused.

For its part, the petitioner explained that on several occasions, there were pilferages in its

warehouse, and because management could not pinpoint who the real culprit(s) is/are, they

became stricter in the recording of the flow of goods.

Sometime in September and October of 2006, management found out that the private

respondent was instrumental in the pilferages. They, thus, requested for an investigation by the

National Bureau of Investigation (“NBI” for brevity). The private respondent failed to appear during

the same. The petitioner then posted a notice in the bulletin board of the company’s office

requesting him to answer and be present during the investigation to be conducted by the company.

He was further advised that at his option, he may bring a lawyer of his own choice.

148
Admitted by the petitioners in the Respondents’ Reply, p. 1.
149
Complainant’s Position Paper, pp. 1-2.
PAO Code Book 171 of 375
 Unfortunately, he never attended the said investigation despite the fact that one of the

security guards saw him loitering around the premises. Rather than dismiss him, his suspension

was extended for another two (2) weeks.

However, the private respondent filed the instant complaint on 25 January 2007. The truth

of the matter is that he went on “Absence Without Official Leave.” Hence, the loss of trust and

confidence of the petitioners towards the private respondent for his repetitive misdemeanor.

When the labor complaint was filed, it was then that the private respondent was barred from
150
entering the company premises.
151 152
Soon thereafter, the parties submitted their respective position papers and replies.
153
Additionally, the private respondent filed his rejoinder. On 1 January 2008, the Labor Arbiter
154
issued a Decision, the dispositive portion of which reads:

“WHEREFORE, a decision is hereby rendered dismissing the

case for illegal dismissal for lack of merit. However, Respondents are
th
hereby ordered to pay complainant 13 month pay computed as
follows:
ABC:
th
13 Month Pay. (3 yrs.)
P300 x 26 x 36/12 = P23,400.00
SO ORDERED.”

155
Aggrieved, the private respondent filed a Notice and Memorandum of Partial Appeal. On

1 January 2009, the National Labor Relations Commission, xxxxx Division (“NLRC” for brevity),
156
issued a Decision, the dispositive portion of which reads:

“WHEREFORE, premises considered, the Decision of January 1,

2008 is VACATED and REVERSED and a new one entered declaring
complainant illegally dismissed and the respondent XYZ Company is
directed to pay to the complainant as follows:
1. Separation pay computed at one (1)
month per year of service------------- P 84,708.00;

150
Respondents’ Position Paper, pp. 2-3.
151
Annexes “C” and “D” of the Petition.
152
Copy of Complainant’s Reply attached as Annex “1” of the Comment; Duplicate original copy of
Respondent’s
153
Reply attached as Annex “2” of the Comment.
Duplicate original copy attached as Annex “3” of the Comment.
154
Annex “E” of the Petition.
155
Annex “F” of the Petition.
156
Annex “B” of the Petition.
PAO Code Book 172 of 375
 2. Backwages ------------------------------- P232,188.38;
th
3. 13 month pay ------------------------ P 20,651.58;
SO ORDERED.”

157
A Motion for Reconsideration was thereafter filed by the petitioners, which was denied by
158
the NLRC in a Resolution promulgated on 1 July 2009.

Hence, the petitioners filed the instant Petition for Certiorari under Rule 65 of the Revised

Rules of Court, raising as lone issue, viz:

“THAT THE HONORABLE PUBLIC RESPONDENT NLRC

THIRD DIVISION COMMITTED GRAVE ABUSE OF
DISCRETION AND ERROR IN LAW IN HOLDING THAT
PRIVATE RESPONDENT WAS ILLEGALLY DISMISSED.”

STATEMENT OF THE ISSUES:

I.

WHETHER THE NATIONAL LABOR RELATIONS COMMISSION

ABANDONED THE THEORY OF CONSTRUCTIVE DISMISSAL.

II.

WHETHER THE PRIVATE RESPONDENT WAS ILLEGALLY

DISMISSED FROM HIS EMPLOYMENT.

III.

WHETHER THE NATIONAL LABOR RELATIONS COMMISSION

COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION.

IV.

WHETHER THE PRIVATE RESPONDENT IS ENTITLED TO

PAYMENT OF BACKWAGES AND SEPARATION PAY.

DISCUSSION

THE NLRC DID NOT ABANDON THE

THEORY OF CONSTRUCTIVE DISMISSAL.

157
Annex “G” of the Petition.
158
Annex “A” of the Petition.

PAO Code Book 173 of 375

 The petitioners clamored on the NLRC’s alleged finding of actual dismissal. Thus, a careful

perusal of the NLRC’s decision is necessitated. It held:

“After a careful evaluation of the evidence on record, WE FIND

PARTIAL MERIT IN THE APPEAL. Well-settled is the rule that the
employer has the burden of proving by substantial evidence, the
lawful cause for the employee’s dismissal (Farrol vs. Court of
Appeals, G.R. No. 133259, February 10, 2000). For loss of trust and
confidence to be a valid ground for an employee’s dismissal, it must
be substantial, and not arbitrary, and must be founded on clearly
established facts sufficient to warrant the employee’s separation from
work.
In the instant case, we disagree with the Labor Arbiter, as we
find the respondents have failed to substantiate the charge of
loss of confidence against the complainant, to warrant the
latter’s dismissal. At the outset, there is no proof of the alleged
pilferages, for which the complainant was charged of. On the
existence of just cause for dismissal, there are (sic) no concrete
evidence, which would show some basis for the finding of guilt for
pilferage of the complainant. We agree with the complainant’s
assertion, that the only evidence of the respondents against him,
is the fact that he was the warehouseman and he had the keys of
the warehouse, which gave them the suspicion, that the pilferage
could not be done without his participation. Although the
respondents claim to have secured the assistance of the NBI to
investigate on the alleged pilferages, and that the investigation
lasted for one-and-a-half months, yet nothing was presented to
prove that an investigation was conducted, nor as to any result
thereof. Moreover, the complainant was not afforded the due
process nor given the opportunity of a hearing and to defend
himself. The respondents could not even state the dates of the
alleged investigation, supposed to be attended by the
159
complainant.” (emphasis ours)

The petitioners expressed its disagreement with the NLRC’s action of passing upon the

issue of whether they were able to substantiate the charge of loss of trust and confidence. They

further argued that the private respondent was not dismissed on such ground, but he instead,

160
abandoned his job.

However, they may have forgotten that in their position paper, they presented no argument

other than the propriety of the private respondent’s termination due to loss of trust and

confi thereby endeavoring to justify such course of action. Not only that, the Labor
161
dence,

159
pp. 5-6.
160
Petition, pp. 10-11.
PAO Code Book 174 of 375
 161
Respondents’ Position Paper, p. 3.

PAO Code Book 175 of 375

 162
Arbiter’s decision, to which the petitioners concurred with, devoted the latter part of its ruling in
163
validating such ground for dismissal. The NLRC cannot be faulted in passing upon this matter

because, after all, it was mandated to review the factual and legal findings of the Labor Arbiter.

Moreover, the above-quoted ruling of the NLRC was precipitated by the following discussion

of the private respondent, viz:

“There is no question that complainant-appellant was placed

under preventive suspension by respondents-appellees.
“Preventive suspension is justified where continued
employment poses a serious and imminent threat to the life
or property of the employer or his co-workers. Without this
kind of threat, preventive suspension is not proper. The
maximum period of suspension is 30 days. Beyond that, the
employee becomes entitled to his pay and benefits and the
employer may be required to pay indemnity.” (JRS Business
Corporation vs. NLRC, G.R. NO. 108891, 17 July 1995)
In this case, respondents-appellants failed to submit in
evidence any showing that complainant-appellant was
responsible for the pilferage. Neither were they able to submit
proof that the latter’s continued employment would pose a
serious and imminent threat to their life or property, or that of
their other workers other than their suspicions simply because
complainant-appellant had the keys to the warehouse.
With all due respect, other than their self-serving allegations, no
evidence was furnished by respondents-appellants to substantiate
such claim. Evidence is not synonymous to suspicions. Once (sic)
allegations, to be believed, demand factual and legal justifications,
and it cannot be left to speculations and conjectures. The fact that
he was a warehouse stockman would not necessarily mean that
he had participation in the alleged pilferage, if indeed true.”
xxx xxx xxx
“Respondents-appellees had even implied that the NBI failed
to finish the investigation within thirty (30) days which caused
them to extend the preventive suspension of complainant-appellant
for another fifteen (15) days. xxx.”
xxx xxx xxx

“It was also the pronouncement of the Honorable Labor

Arbiter that complainant-appellant was afforded due process as
he admitted having received the Memorandum.
Let it be stressed that the suspension order (Annex “C” of the
Complainant’s Position Paper) only indicates the fact that
employees were suspended and barred from entering the office.
There was no indication the employees placed under preventive
suspension were required to attend the investigation and at their
162
The petitioners did not appeal the Labor Arbiter’s decision.
163
Labor Arbiter’s Decision, p. 5.
PAO Code Book 176 of 375
 option, to bring a lawyer of their own choice, to answer the charges
against them.
In their attempt to evade any liability, respondents-appellees,
again, self-servingly claimed that: “x x x. The management field (sic)
a request to the NBI for an investigation but complainant failed to
appear therein. The company then decided to hand a notice to
complainant posted in the bulletin board of the company’s office to
answer and be present and at his option to bring with him a lawyer of
his own choice in the investigation to be conducted by the company.”
(page 2 of the Respondents’ Position Paper)
No evidence was submitted to support the posting of the
notice at the bulletin board. Be that as it may, the procedure
undertaken by the respondents is not proper as the notice should be
sent at the employee’s last known address.
Respondents, further, claimed that: “The two (2) weeks period
lapsed, but the investigation was not yet finished. Complainant was
then notified through mail that he must report back to work. However,
complainant failed to return to work. Such failure of complainant to
resume his job constitutes abandonment of work. (pages 3 and 4 of
the Respondents’ Reply)
Complainant-appellant had already denied that he was
notified to return to work, or that he received the return-to-work
order. It is worthy to emphasize that respondents-appellees
failed to submit proof that they sent notice by mail to the worker.
They could not even mention when the mail was sent. More
importantly, this allegation is merely an afterthought which they
164
did not even mention in their Position Paper.”

Clearly then, the NLRC’s pronouncement was taken in the wrong context. It did not decree

actual dismissal.

THE PRIVATE RESPONDENT WAS

ILLEGALLY DISMISSED.

In challenging the NLRC’s ruling, the petitioners posit that it erroneously assumed the

instant case as one of actual dismissal, emphasizing that the private respondent alleged

constructive dismissal in his complaint, position paper and even on The petitioners’
165
appeal.

stance is short of saying that the NLRC should limit its evaluation of the case only on the basis of

the private respondent’s allegation of constructive dismissal and cannot rule on actual dismissal

even if the factual circumstances are indicative of such. This would be extremely adverse to the

State’s policy to protect labor.

164
Private Respondent’s Notice and Memorandum of Partial Appeal, pp. 4-7.

PAO Code Book 177 of 375

 165
Petition, pp. 7-9.

PAO Code Book 178 of 375

 More importantly, it matters not whether the private respondent was constructively or

actually dismissed, what matters is that he was illegally dismissed. After all, the legal
166
consequences generated by these two (2) modes of dismissal are identical. In Mark Roche

International, et al. v. NLRC, where the dismissed employees lodged a constructive

167
et al.,

dismissal case, and both the Labor Arbiter and the NLRC affirmed such mode of dismissal, the

Honorable Supreme Court, nonetheless, held:

“However, it must be made clear here that the dismissal of

private respondents was not a constructive dismissal but an
illegal dismissal, and this is where both the NLRC and the Labor
Arbiter erred. Constructive dismissal or a constructive discharge has
been defined as a quitting because continued employment is
rendered impossible, unreasonable or unlikely, as an offer involving a
demotion in rank and; a diminution in pay. In the instant case,
private respondents were not demoted in rank nor their pay
diminished considerably. They were simply told without prior
warning or notice that there was no more work for them.”
(emphasis ours, citations omitted)

As will be detailed hereunder, one fact remains – the private respondent was illegally

dismissed, whether it be actual or constructive dismissal.

The petitioners’ allegation that the private respondent abandoned his job, as well as their

other allegations of fact, are not worthy of belief.

For one, they subjected themselves to glaring discrepancies which significantly diminished

their credibility.

While initially averring that the private respondent was barred only from the time the instant
168
case was filed, they subsequently admitted that he was barred to enter the company premises
169
simultaneous with his suspension. This discrepancy cannot be brushed aside, for it has a

bearing on whether the private respondent was dismissed prior to his complaint. Note that in

clarifying this they merely subscribed to their second position, without offering any
170
issue,

justification or explanation for the discrepancy.

166
Mariculum Mining Corporation v. Decorion, G.R. No. 158637, 12 April 2006.
167
G.R. No. 123825, 31 August 1999.
168
Respondents’ Position Paper, p. 2.
PAO Code Book 179 of 375
 169
Respondents’ Reply, p. 3.
170
Herein petitioner’s Reply, p. 3.

PAO Code Book 180 of 375

 Moreover, nowhere in their position paper did they aver that the private respondent was
171 172
directed to return to work. Hence, the “loss of trust and confidence” theory. Subsequently,

however, they averred that the private respondent was notified to return to work by mail, thereby
173
strengthening the angle of “abandonment.” This is more than just a suppletory allegation of fact,
174
as what the petitioners would like to impress upon this Honorable Court, but a total change of

t
heory
175
. In Building Care Corporation v. NLRC, et al., the Honorable Supreme Court stamped

with approval the following finding of the NLRC, viz:

“Complainant's (herein private respondent) claim that he was

suspended for no apparent reason for one week is borne out by the
logbook entry for February 11, 1988 and by his letter-explanation
dated March 28, 1988. It should also be noted that complainant stood
pat on this claim throughout the entire proceedings.
On the other hand, respondent, in its position paper filed on July 13,
1988, simply contended that complainant failed, without prior leave, to
report for work despite respondent's repeated instructions. In the
affidavits submitted on September 21, 1988, three of respondent's
employees averred that complainant was transferred to the day shift
and he quit his job because he was against such transfer. This is an
entirely new twist which did not appear in the memoranda and
logbook entries earlier submitted by respondent, nor even in its
position paper. For this reason, said averment appears to be an
after-thought, which cannot be given much weight.” (emphasis
ours; citations omitted)

“Under the Rules of Court, which is applicable in a suppletory character in labor

cases before the Labor Arbiter or the NLRC pursuant to Section 3, Rule I of the New Rules

of Procedure of the NLRC, defenses which are not raised either in a motion to dismiss or in

the answer are deemed waived.”176

Second, their allegations were not backed up by corresponding proofs, which must have

been available had their version been true.

171
Respondents’ Position Paper, pp. 1-2.
172
Ibid, p. 3.
173
Respondents’ Reply, pp. 2-3.
174
Supra note 24.
175
G.R. No. 94237, 26 February 1997.
176
PCL Shipping Philippines, Inc., et al. v. NLRC, et al., G.R. No. 153031, 14 December 2006.
PAO Code Book 181 of 375
 177
Although claiming that the private respondent was sent a notice to return to work by mail,

the petitioners presented no proof of mailing and receipt of the said notice. They did not even

mention when the alleged mail was sent. Their bare allegation, therefore, cannot withstand the
178
private respondent’s categorical denial of having been furnished the same. The ruling of the
179
Honorable Supreme Court in Golden Thread Knitting Industries, Inc., et al. v. NLRC, et al. is,

consequently, of great significance. The High Court held therein, viz:

“The NLRC sustained Cachucha that he did not abandon his work
considering that he seasonably filed a complaint for illegal dismissal
against petitioners on 16 July 1992 and positively disavowed any
notice to return to work allegedly sent to him by petitioners.
The NLRC is correct. For abandonment to exist, it is essential that
(1) the employee must have failed to report for work or must
have been absent without valid or justifiable reason; and, (2)
there must have been a clear intention to sever the employer-
employee relationship manifested by some overt acts. The
circumstance that Cachucha lost no time in filing a complaint for
illegal dismissal against petitioners on 16 July 1992 is
incompatible with the charge of abandonment and confirms in
fact that he was refused entry into the company premises on 6
July 1992.
Petitioners' allegation that they informed Cachucha's wife that
Cachucha must report to work immediately is unsubstantiated
and self-serving. The alleged notification through the
memorandum of 22 July 1992 has not been shown to have been
received by Cachucha. xxx xxx xxx.” (emphasis ours; citations
omitted)

In view of the foregoing, the petitioners’ allegation that the private respondent abandoned

his work is even more demolished.

What is more, if the private respondent indeed failed to comply with such return-to-work

directive, surely, his attention would have been called by the petitioners and his refusal reduced in

writing. The petitioners could not have taken such purported act lightly and pass over the same

without any warning, for it was already tantamount to insubordination or abandonment. The most

logical conclusion for such lack of documentary evidence is the falsity of the petitioners’ claim.

177
Respondents’ Reply, p. 3.
178
Complainants’ Rejoinder, p. 2.
179
G.R. No. 119157, 11 March 1999.

PAO Code Book 182 of 375

 180
Contrary to the petitioners’ posture, the act of filing a constructive dismissal case does not

readily indicate that he abandoned his job. Labor jurisprudence, in fact, decrees the contrary view.

“A charge of abandonment is totally inconsistent with the immediate filing of a complaint for

illegal dismissal.”181

Incidentally, it must be noted that the petitioners, in their petition, no longer tried to make the

most out of the so-called return-to-work notice allegedly sent by mail. Instead, they capitalized on

the offer they made during the mandatory conciliation conference and This only goes
182
thereafter.

to prove that their allegation of having sent a return-to-work order by mail is untrue. Besides, the

belated offer would, in no way, legalize the private respondent’s dismissal.

Similarly, the private respondent’s alleged refusal to attend the investigation remained to be

a bare allegation. As the said proceeding was already preparatory to dismissal, his refusal to

attend the same must have been put in writing, more so taking into account its effect in supposedly

validating his dismissal.

As a matter of fact, as aptly noted by the NLRC, there remains no proof that there was an
183
investigation being then conducted by the NBI.

Clearly, the petitioners’ averment that the private respondent precipitately filed the instant
184
case without waiting for the results of the NBI investigation fell on shaky ground.

All told, the undisputed facts are the following: (a) the private respondent was a regular and

permanent employee of the petitioner corporation; (b) sometime in the last week of October 2006,

stocks of HP ink were reportedly missing; (c) the private respondent turned out to be one of the

suspects; (d) on 3 November 2006, the private respondent was placed under preventive

suspension; and (e) there is no existing document proving that the private respondent was advised

to return to work. The foregoing facts obviously established illegal dismissal.

Even if we are to limit the evaluation of the instant case on the theory of constructive

dismissal, the above-enumerated facts, nonetheless, established such mode of dismissal.

180
Supra note 24.
181
Hda. Dapdap I, et al. v. NLRC, et al., G.R. No. 120556, 26 January 1998.
182
Petition, p. 7.
183
NLRC’s Decision, p. 6.
PAO Code Book 180 of 375
 184
Ibid, pp. 8-9.

PAO Code Book 180 of 375

 Assuming, without necessarily admitting, that there was indeed an investigation which

persisted, it would be highly unfair for the private respondent to wait for the resolution of the same,

given that the period of his suspension already elapsed. Note that the private respondent filed the

instant case only on 25 January 2007, well beyond the additional period of suspension for two (2)

weeks / fifteen (15) which supposedly ended on 18 December 2006. As fully detailed
185
days,

above, at the time of the filing of the complaint, there was as yet no offer to return to work.

Hence, the private respondent was constructively dismissed, for “preventive suspension

which lasts beyond the maximum period allowed by the Implementing Rules amounts to

constructive dismissal.”186

As a final note, it must be stressed that the petitioners were of the mistaken belief that in
187
constructive dismissal cases, the burden of proof shifts to the employee. This contradicts one of

the most basic tenets in labor law, for as plainly and positively declared by the Honorable Supreme

Court, “in cases of constructive dismissal, the burden of proof is on the employer to show

that the employee was dismissed for a valid and a just As thoroughly discussed, all
cause.”188

the same, the petitioners failed to discharge their burden.

Later on conceding that the burden of proof in constructive dismissal cases is not shifted to

the employee, the petitioners, nonetheless, advanced that the private respondent should lay down

189
the basis of his constructive dismissal, such as, whether he was demoted or transferred. To

repeat, assuming that there was indeed an investigation which persisted, when the private

respondent filed the instant case on 25 January 2007, the additional period of suspension for two
190
(2) weeks / fifteen (15) days, which supposedly ended on 18 December 2006, already elapsed.

As fully detailed above, at the time of the filing of the complaint, there was as yet no offer to return

to work. This is already the basis of the complaint; hence, it became incumbent for the petitioners

to prove that he was not dismissed, which they failed to do.

185
Petition, p. 3; Respondents’ Reply, p. 3.
186
Mark Roche International, et al. v. NLRC, et al., supra note 21.
187
Petition, p. 8.
188
Emphasis ours; Suldao v. Cimech System Construction, Inc. and Engr. Labucay, G.R. No. 171392,
30 October 2006.
PAO Code Book 181 of 375
 189
Herein petitioner’s Reply, p. 4.
190
Petition, p. 3; Respondents’ Reply, p. 3.

PAO Code Book 182 of 375

 The petitioners countered that the additional suspension was for another period of thirty (30)
191
days. This is not only one of the many inconsistent postures of the petitioners, but also one of

those unsubstantiated.

THE NATIONAL LABOR RELATIONS

COMMISSION (NLRC) DID NOT COMMIT
GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF
JURISDICTION.

“Grave abuse of discretion implies such capricious and whimsical exercise of

judgment as is equivalent to lack of jurisdiction, or, in other words, where the power is

exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and

it must be so patent and gross as to amount to an evasion of positive duty or a virtual

refusal to perform the duty or act at all in contemplation of law.”192

The NLRC’s decision is far from grave abuse of discretion warranting the issuance of a writ

of certiorari. On the contrary, it merely fulfilled its duty of protecting the interest of labor, for the

evident fact is that the private respondent was illegally dismissed.

Even if the NLRC indeed erred in evaluating the case as one of actual dismissal (without

necessarily admitting so), the same only constitutes an error of judgment, as can be gleaned from

193
the Mark Roche International case. “Where the court has jurisdiction over the case, even

if its findings are not correct, its questioned acts would at most constitute errors of law and

not abuse of discretion correctible by certiorari.”194 (citations omitted).

Anyway, apart from the erroneous ruling, the petitioners failed to particularize acts of the

NLRC purportedly establishing grave abuse of discretion amounting to lack or excess of jurisdiction.

Under pain of being repetitive, be it actual or constructive dismissal, the factual milieu of the instant

case established illegal dismissal.

191
Herein petitioner’s Reply, p. 4.
192
Cuison v. Court of Appeals, 289 SCRA 195
193
Supra note 21.
194
Lalican v. Vergara, et al., supra note 47.
PAO Code Book 183 of 375
 THE PRIVATE RESPONDENT IS
ENTITLED TO PAYMENT OF
BACKWAGES AND SEPARATION PAY.

As the private respondent’s dismissal was illegal, he is entitled to payment of backwages, as

it is well-settled that “the employer has to pay backwages as part of the price or penalty he

has to pay for illegally dismissing his employee.”195

In view of the strained relations of the petitioners and the private respondent, the award of
196
separation pay in lieu of reinstatement is also proper.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this Honorable Court that

the Petition for Issuance of a Writ of Certiorari be DENIED for utter lack of merit.

Private respondent prays for such other reliefs just and equitable under the premises.

Quezon City for Manila.

11 March 2010.

Department of Justice
PUBLIC ATTORNEY’S OFFICE
DOJ Agencies Building,
NIA Road corner East Avenue,
1104 Diliman, Quezon City
Tel. Nos. 928-91-37/927-68-06

BY:

----------------------------------
Public Attorney IV
Roll No. xxxxx
IBP OR No. xxxxxx; 1/6/10
MCLE Compliance No. III-000xxxx; 1/20/10

----------------------------------
Public Attorney IV
Roll No. xxxxx
IBP OR No. xxxxx0; 1/4/10
MCLE Compliance No. III-000xxxx; 1/20/10

- and -

195
Labor Code of the Philippines Annotated by J.G. Chan, Volume II, pg. 615.
196
G.R. No. 107234, 24 August 1998.
PAO Code Book 184 of 375
 ----------------------------------
Public Attorney II
Roll No. xxxxx
IBP No. xxxxxx; 1/5/10
MCLE Compliance No. III-000xxxx; 1/20/10

EXPLANATION
(Pursuant to Sec. 11, Rule 13 of the 1997 Rules of Civil Procedure)

The foregoing “Memorandum” is being served by registered mail since personal service is
not practicable, because of distance and limited number of messengers in the undersigned’s office.

----------------------------------
Public Attorney II

Copy Furnished:

ATTY. YY Reg. Receipt No.

(Counsel for the petitioner)
Address

NATIONAL LABOR RELATIONS COMMISSION Reg. Receipt No.

(xxxxx Division)
PPSTA Bldg., Banawe St.,
1100 Quezon City

PAO Code Book 185 of 375

PAO Code Book 186 of 375