Republic of the Philippines

Court of Appeals
Visayas Station
Cebu City

MA. MILAGROS GURREA-

VILLANUEVA,
Petitioner,
CA G.R. SP No. ___________
[CIVIL CASE NO. 09-13400]
-versus-

REGIONAL TRIAL COURT For: Petition for Certiorari

(BRANCH 42) OF BACCOLOD under Rule 65
CITY, ANTONIO J. DADIVAS,
Respondent.
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PETITION FOR CERTIORARI

PETITIONER Ma. Milagros Gurrea-Villanueva most respectfully

submit this Petition for Certiorari, and state as follows:

PREFATORY STATEMENT

This is a case where a Judgment of the Lower Court which has

been rendered final and executory is being assailed through a Motion
for New Trial with Motion for the Dismissal of the case.

Despite the glaring contraventions of procedural laws and the

manifest injustice committed against the petitioner, the Lower Court
gave due course to respondent’s Motion for New Trial and set aside
the Decision it dispensed.

Hence, this petition.

THE CASE

This is a petition for certiorari under Rule 65 of the Rules of Court

assailing the Orders of the Regional Trial Court in Civil Case No. 09-
13400 entitled Ma. Milagros Gurrea-Villanueva vs. Antonio J. Dadivas.

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Petition for Certiorari
Cordova, et al. vs. NLRC-7th Division and Hogen Energy Ventures, Inc.
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Certified copies of the Orders dated May 8, 2017 and January 16, 2018,
are hereto attached as Annexes “A” and “B,” respectively.

MATERIAL DATES

Petitioner, through counsel, received a copy of the Order dated

May 8, 2017 of the Regional Trial Court on May 29, 2017.

On June 14, 2017, respondent filed his Answer with

Counterclaim.

On the same day, (June 14, 2017), petitioner filed a Motion for
Reconsideration on the May 8, 2017 Order.

On June 21, 2017, the Regional Trial Court ordered Atty.

Demonteverde to file his Opposition/Comment within fifteen days
from said date.

On January 16, 2018, The Regional Trial Court denied

petitioner’s Motion for Reconsideration to the May 8, 2018 giving due
course to the Motion for New Trial filed by the defendant.

Petitioner, through counsel, received the January 16, 2018 on

March 5, 2018. Petitioner has until May 5, 2018 to assail the Orders off
the Regional Trial Court via this Petition for Certiorari. It is thus
manifested that this Petition is filed on time.

THE PARTIES

Petitioner Ma. Milagros Gurrea-Villanueva is a Filipino Citizen,

of legal age, married and a resident of Bacolod City, Negros
Occidental. She may be served with processes of this Honorable Court
through her undersigned counsel at the address stated herein below.

Defendant is also of legal age, Filipino and a resident of Bacolod

City, Negros Occidental. He may be served with processes of this
Honorable Court through his counsel, Atty. Omar Francis P.
Demonteverde.
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Petition for Certiorari
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THE FACTS

On July 23, 2004, petitioner and respondent entered into a

Contract of Lease of Agricultural Land and Farm Machinery and
Equipment. Petitioner leased to respondent two (2) parcels of land
with a total area of ninety-six (96) hectares, more or less for an annual
lease rental of Eight Hundred Thousand Pesos (800,000.00 PhP),
payable every April 30 and December 13 of each year, starting April
30, 2005 and terminating on December 13, 2009; the amount of which
shall be payable with Four Hundred Thousand Pesos (400,000.00 PhP)
for each installment. Copy of the Contract of Lease is attached as
Annex “C” hereof.

From April 30, 2005 until April 30, 2008, respondent religiously
paid his lease rentals. However, the successive lease rentals due on
December 13, 2008 and April 30, 2009, each in the amount of Four
Hundred Thousand Pesos remained unpaid despite the repeated
demands from petitioner to pay the same.

As recourse, petitioner referred the matter to her lawyer who

wrote the defendant a demand letter dated February 3, 2009 for his
unpaid lease rental due on December 13, 2008 in the amount of Four
Hundred Thousand Pesos (400,000.00). Another Demand Letter dated
May 20, 2009 was likewise sent to respondent for his unpaid lease
rental due on April 30, 2009; also in the amount of Four Hundred
Thousand Pesos (400,000.00 Php) Copies of the demand letters are
attached herein as Annexes “D” and “E”.

Despite the demands from petitioner’s counsel, respondent

failed and refused to pay his unpaid lease rentals. Thus, on July 10,
2010, petitioner filed a Complaint for Sum of Money with Damages
and with Application for a Writ of Preliminary Attachment before the
Regional Trial Court. A copy of which is hereby attached as Annex
“F”.

On July 16, 2009, the Regional Trial Court ordered respondent to

file his Answer to the Complaint within fifteen (10) days following the
service of summons.

On July 14, 2009, Process Server Henry J. Legario executed a Return of

Service stating that he attempted to serve a copy of the Summons,
Complaint and its Annexes to the respondent Antonio J. Dadivas at his
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given address, through Antonio J. Dadivas Sr. at Tapulanga St.

Capitolville Subdivision, Bacolod City.

Based on the information provided by respondent’s father,

Antonio Dadivas, Sr., his son Antonio J. Dadivas is presently in the
United States of America. Antonio Dadivas, Sr. refused to receive the
summons and the complaint for he has no knowledge about the instant
case.

Hence, the Summons issued by the Court was returned

unserved. Copy of the Return of Service is hereto attached as Annex
“G”.

On August 7, 2009, it being said that respondent was presently

in the United States of America, petitioner filed a Motion to Effect
Service of Summons by Publication. A copy of which is hereto
attached as Annex “H”.

On August 19, 2009, the Regional Trial Court granted the

petitioner’s Motion. A copy of which is hereto attached as Annex “I”.

On September 4, 2009, the Clerk of Court of Branch 42 of the

Regional Trial Court of Bacolod City issued Summons by publication
directing the respondent to file his responsive pleading within sixty
(60) days from the date of the last publication or on September 28, 2009.

Still, respondent failed to file any responsive pleading. Thus, on

March 8, 2010, petitioner filed a Motion to Declare the Defendant in
Default and to Set the Hearing for Issuance of Writ of Attachment. A
copy of said Motion is hereto attached as Annex “J”.

On March 8, 2010, following the Service of Summons by

Publication, petitioner filed a Motion to Declare the Defendant in
Default and to Set the Hearing for Issuance of Writ of Attachment.

On March 11, 2019, the Regional Trial Court granted petitioner’s

Motion and declared respondent in default. Copy of said Order is
hereto attached as Annex “K”.

On July 12, 2010, Atty. Mario F. Pao, counsel for the respondent
filed his Entry of Appearance and Motion to Lift the Order of Default.
Copy of said pleading is attached as Annex “L”.
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On July 15, 2010, petitioner filed her Opposition to respondent’s

Motion. A copy of said pleading is attached herein as Annex “M”.

On January 19, 2011, respondent through Atty. Mario F. Pao filed

his Motion to Dismiss reiterating that the court has not acquired over
the person of the respondent. A copy of said Motion is attached as
Annex “N”.

On January 27, 2011, petitioner filed her Opposition to the

Motion to Dismiss. A copy of said Opposition is attached as Annex
“O”.

On November 8, 2011, the Regional Trial Court rendered an

Omnibus Order denying respondent’s Motion to Lift Order of Default
after finding that none of the requisites are present in the instant case
to justify the lifting of the Order of Default. A copy of the Omnibus
Order is attached as Annex “P”.

On May 3, 2012, Atty. Mario F. Pao filed a “Manifestation That

Counsel Not Representing Defendant”.

On August 20, 2014, the Regional Trial Court rendered a

Decision on the instant case with a finding that respondent breached
his contractual obligation to petitioner. The Lower Court ruled,

“WHEREFORE, as prayed for in the Complaint,

defendant is hereby ordered to pay the plaintiff the amount
of Eight Hundred Thousand (P800,000.00) Pesos,
representing the two (2) lease rentals due on December 13,
2008 and on April 30, 2009, with interest at 12% per annum
from April 30, 2009 until full payment thereof.

Defendant is further ordered to pay the plaintiff the sum

of P15,000.00 and P15,000.00, as moral and exemplary
damages, respectively, and P30,000,00 for attorney’s fees.”

On September 15, 2014, Atty. Omar Francis P. Demonteverde

filed an Ex-Parte Notice of Entry of Appearance as counsel of the
respondent. A copy of the said Entry of Appearance is attached as
Annex “Q”.

On September 30, 2014, the Regional Trial Court granted Atty.

Demonteverde’s Ex-Parte Notice of Entry of Appearance. It further
considered the appearance of Atty. Demonteverde as counsel for
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respondent in collaboration with Atty. Mario F. Pao. A copy of the

said order is attached as Annex “R”.

On December 8, 2014, respondent through Atty. Demonteverde

filed a Motion for New Trial with Motion for the Dismissal of the Case.

On February 18, 2015, petitioner filed an Opposition to Motion

for New Trial with Motion for the Dismissal of the Case. Thereafter, on
March 6, 2015, respondent filed a Reply to Opposition. On March 15,
2015, petitioner filed his Rejoinder to Reply to Opposition. On March
23, 2015, respondent filed a Comment to Rejoinder.

On May 8, 2017, despite the Motion for New Trial being glaringly
filed out of time, the Regional Trial Court issued an Order granting
respondent’s Motion for New Trial ratiocinating that “it is bereft of the
proof of service to defendant by an affidavit showing the deposit of the
copy of the summons and order for publication in the post office,
postage prepaid, directed to the defendant by registered mail to his
last known address. Hence, the Court did not acquire jurisdiction over
the respondent.

On June 13, 2017, petitioner filed a Motion for Reconsideration

on the May 8, 2017 Order of the Regional Trial Court.

On June 14, 2017, respondent filed his Answer with

Counterclaim. On July 8, 2017, respondent filed an Opposition to
Motion for Reconsideration.

On January 16, 2018, the Regional Trial Court denied petitioner’s

Motion for Reconsideration on the May 8, 2017 Order.

Hence, this Petition for Certiorari.

ISSUE

WHETHER THE REGIONAL TRIAL COURT (BRANCH 42),

COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR IN EXCESS OF JURISDICTION WHEN IT
GRANTED RESPONDENT’S MOTION FOR NEW TRIAL WITH
MOTION FOR THE DISMISSAL OF THE CASE;
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Petition for Certiorari
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DISCUSSION

The Regional Trial Court (Branch

42) committed grave abuse of
discretion when it granted
respondent’s Motion for New Trial
with Motion to Dismiss

The public respondent committed

grave abuse of discretion when it
granted respondent’s Motion for New
Trial despite the same being filed out of
time.

Jurisdiction over the person of

respondent was acquired by the
Court.

The basis of the ruling of the Regional Trial Court in granting

respondent’s Motion for New Trial with Motion to dismiss hinges
mainly on the argument that the Court failed to acquire jurisdiction
over the person of the respondent for the service of Summons was
defective.

Respondent argues, the service of summons is defective for it is

bereft of the proof of service to defendant by an affidavit showing the
deposit of the copy of the summons and order for publication in the
post office, postage prepaid, directed to the defendant by registered
mail to his last known address.

It must be noted that the Regional Trial Court granted

petitioner’s Motion to Effect Service of Summons by Publication. By
virtue of the Court Order, Service of Summons by Publication was
effected and published in _______________, a newspaper of general
circulation. The same was published for three consecutive weeks on
___________, _______________, and _________________.

The Editor-in-Chief of _______________________ executed an

Affidavit to attest to the publication of the Service of Summons.

Further, counsel for the petitioner, Atty. Cris P. Dionela also

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issued an Affidavit that he caused the publication of the Service of

Summons by leave of Court.

Assuming arguendo that the Service of Summons by Publication

is defective, the same has been cured by respondent’s voluntary
appearance in Court.

In the case of Wong v. Factor-Koyama 1 , the Supreme Court

pronounced,

“A trial court acquires jurisdiction over the person of the

defendant by service of summons. However, it is equally
significant that even without valid service of summons, a
court may still acquire jurisdiction over the person of the
defendant, if the latter voluntarily appears before it.”

Section 20, Rule 14 of the Rules of Court provides:

“Section 20. Voluntary Appearance. - The defendant's

voluntary appearance in the action shall be equivalent to
service of summons. The inclusion in a motion to dismiss
of other grounds of relief aside from lack of jurisdiction
over the person of the defendant shall not be deemed a
voluntary appearance.”

It must be recalled, that Atty. Mario F. Pao entered his

appearance in behalf of respondent and prayed for the Court to lift the
Order of Default against respondent.

By seeking affirmative reliefs from the trial court, the individual

[petitioner is] deemed to have voluntarily submitted to the jurisdiction
of the court. A party cannot invoke the jurisdiction of the court to
secure the affirmative relief against his opponent and after obtaining
or failing to obtain such relief, repudiate or question that same
jurisdiction.2

In this case, while respondent’s counsel Motion to Lift Order of

Default challenged the jurisdiction of the court a quo on the ground of
improper service of summons, the same Motion which sought for
affirmative reliefs is tantamount to voluntary appearance and
submission to · the authority of the Court. Such affirmative relief is
inconsistent with the position that the Regional Trial Court failed to

1 G.R. No. 183802, September 17, 2009.

2 Nation Petroleum Gas, Inc. v. Rizal Commercial Banking Corp., G.R No. 183370, August 17, 2015.
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acquire jurisdiction over the person of the respondent.

Jurisdiction over the defendant in a civil case is acquired either

by the coercive power of legal processes exerted over his person, or his
voluntary appearance in court. As a general proposition, one who
seeks an affirmative relief is deemed to have submitted to the
jurisdiction of the court. It is by reason of this rule that we have had
occasion to declare that the filing of motions to admit answer, for
additional time to file answer, for reconsideration of a default
judgment, and to lift order of default with motion for reconsideration,
is considered voluntary submission to the court’s jurisdiction.3

Further, in G.V. Florida Transport, Inc. vs. Tiara Commercial

Corporation4, the Supreme Court held, improper service of summons
and lack of voluntary appearance do not automatically warrant the
dismissal of the complaint.

The Supreme Court further went to reiterate jurisprudence in

later cases such as Tung Ho Steel Enterprises Corporation v. Ting Guan
Trading Corporation,5Spouses Anuncacion v. Bocanegra,6 and Teh v. Court
of Appeals.62

The public respondent erroneously ruled

that the supervision of the fuel calibration
process and the verification of the
truthfulness of the contents of the
calibration reports form an integral part of
petitioners’’ functions as cashiers

Public respondent NLRC-7th Division in its 29 April Decision

ruled that “the supervision of the fuel calibration process and the
verification of the truthfulness of the contents of the calibration reports

3 Philippine Commercial International Bank v. Spouses Wilson Dy Hong Pi and Lolita Dy, 606 Phil.
615 (2009).
4 G.R. No. 201378, October 18, 2017.

5 G.R. No. 182153, April 07, 2014.

6
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form an integral part of complainant’s functions. This supposition by

the public respondent is wrong.

Aside from the self-serving statement of private respondent that

the cashiers were tasked with ensuring the accuracy of the calibration,
there is no evidence on record to establish such claim. By the very
nature and definition of their job, the task of the cashiers is confined to
handling payments and receipts, and to safeguard the money coming
in for the business. It is not regular and, in fact, highly unusual for
cashiers to be made in-charge of calibrating fuels. Thus, absent any
evidence to prove that the cashiers of the gasoline station were
charged of the additional responsibility of ensuring the accuracy of
calibration, public respondent should not have assumed that
supervision of the fuel calibration process and the verification of the
truthfulness of the contents of the calibration reports are part of
petitioners’ functions as cashiers.

It is clear that the entire process of calibration is done by the

pump boys and not by the cashiers. Thus to fault the cashier for the
erroneous calibration is absolutely unjust and unfair.

The ministerial and mechanical role of the cashiers comes into

play only after the entire calibration process conducted by the pump
boys is over. It must be emphasized that this system and standard
operating procedure observed by the cashiers is based on the specific
instruction coming from the management.

Thus, to fault herein petitioners of being negligent for simply

following instructions, for simply doing what they were specifically
told is no doubt the height of injustice. To be sure, following
instructions and protecting one’s caja de yero by not leaving it
unattended do not translate to gross negligence.

That the petitioners had no hand in the calibration process is

proved by the handwritten statement in Hiligaynon of Marjohn
Villarosa, a pump boy in the gasoline station of private respondent. A
copy of the handwritten statement is attached as Annex “___” and the
salient parts thereof are quoted below with English translation, thus:

“11. PAGKATAPOS NAMUN CALIBRATE SUNO SA

MANAGEMENT KAG SA VIRVAL NGA PATAKARAN. IPAKITA
ANG CALIBRATION BUCKET KAG CONTAINER SA CASHIER.
KAG IPA RECEIVE SA CASHIER ANG CALIBRATION FORM SANG
PAMBOY.
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AKO SI MARJOHN VILLAROSA NGA GAPATU-OD NGA

INDI INSAKTO ANG GINAPASIBANGOD SA ILA NI ANA LIEZEL
CORDOVA, ALMAE SAMOY, MICHELLE BAJALA KAG WALA
SILA INVOLVEMENT SA ANO MALIYA NGA NATABO SANG
TUIG 2013, KAY SANG ORAS SANG CALIBRATION ARA NA SILA
SA SULOD MINIMART. KAG WALA PATAKARAN NGA MAGA-
UPOD SA PUMBOY CALIBRATE. SALAMAT

(SIGNED)
MARJOHN O. VILLAROSA
WITNESS”

Translation:

”After we calibrate per the verbal instruction of the management, we

will show the calibration bucket and the container to the cashier, and have the
cashier receive the calibration form of the pump boy.

I am Marjohn Villarosa who attests that the allegations against Ana

Liezel Cordova, Almae Samoy and Michelle Bajala are not true and that they
have no involvement in whatever anomaly that happened in the year 2013,
because at the time of calibration, they were inside the minimart. And there
is no rule that they should accompany the pump boy during calibration.
Thank you.

(SIGNED)
MARJOHN O. VILLAROSA
WITNESS”

There being no gross negligence attributable to petitioners in this

case, it follows that there is no justification for the invocation of loss of
trust and confidence by private respondent, which pretext was
affirmed by the Labor Arbiter and the NLRC-7th Division. Surely, the
mere invocation of loss of trust and confidence, without substantially
establishing the basis thereof, is not a magic formula that would easily
justify termination of employees.

Public respondent and the Labor

Arbiter both erred in not giving weight
to the finding of the City Prosecutor’s
Office that there is no evidence for
faulting herein petitioners
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In the criminal case for qualified theft filed by private respondent

against petitioners before the City Prosecutor’s Office of Bacolod City,
the investigating prosecutor found that there is no evidence to
remotely link the cashiers to the loss of fuel—either directly or
inconspiracy with the pump boys. The findings of the investigating
prosecutor is very telling, thus:

Accordingly, for the respondent-cashiers, the undersigned

likewise finds that there is no probable cause for
insufficiency of evidence as discussed above. In addition,
the undersigned finds that conspiracy is not adequately
established by the set of facts. It is alleged that the
respondent-cashiers were connivance because of their
duty to verify. There is no showing that the respondent-
cashiers were in any way part of the calibration process.
Assuming that indeed they had the duty to verify, such in
itself does not give rise to presumption that they acted in
concert with the respondent-pump boys whose probable
guilt was not found.

Yet, despite the findings of the investigating prosecutor—who

by the way, had the better opportunity to examine the evidence and
ascertain the facts compared to the Labor Arbiter and the NLRC-7th
division—the last two agencies insisted on the participation of the
cashiers, totally disregarding the findings of the investigating
prosecutor after a thorough investigation of the matter.

While the NLRC-7th Division

correctly found that Mary Rose
Santillan was illegally dismissed,
it failed to appreciate the extent of
damage such termination had on
petitioner

For the appreciation of the Court, a brief background on the case

of Mary Rose Santillan is in order, thus:

The case of Mary Rose Santillan is a classic example of

discrimination of women employees on account of their pregnancy.
Nothing in the enumeration of either the just or authorized causes will
ever justify this illegal termination of Santillan. She did not commit
any infraction against the company or respondent Hojilla. Her only
fault is her getting pregnant, which in the eyes of respondents is
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unacceptable as to warrant immediate dismissal.

The Labor Code is very clear on the matter:

Art. 137. Prohibited acts. It shall be unlawful for any

employer:

xxx

2. To discharge such woman on account of her

pregnancy, or while on leave or in confinement due to her
pregnancy;

xxx

The case of Santillan is the very situation this provision of the

Labor Code intends to punish. To terminate a woman employee
whose only fault was carrying a child is, to borrow the words of the
Court of Appeals in Gualberto et al. vs Marinduque Mining, 7 a
“discriminatory chauvinism tantamount to denying equal
employment opportunities to women simply on account of their sex.”
This is nothing less than deplorable. This act of respondents warrants
the sternest rebuke by this Honorable Office.

What is worse, Santillan was fired without any notice. She was
caught off guard. She was left hanging. She had a pregnancy and a
delivery to prepare for and she was saving her salary for it. Her father
just suffered from stroke a few days earlier and she was looking
forward to provide for his medications when she gets her salary. And
one fateful day, as she was about to end her shift to go home and
prepare for the following working day, she was simply greeted with
the news: “indi ka na magbalik kay wala ka na schedule sa dason semana kay
gabusong ka te indi ni di pwede sa kompaniya”(Translation: Do not come back
because you no longer have a schedule for next week due to your pregnancy
that is not allowed in the company.) At that moment, the world fell on her.
Her shock, her pain, her anguish are just unspeakable.

It is absolutely not true that it was she who stopped working for
the company without leave or permission after she got pregnant. The
truth of the matter is that she was a victim of discrimination on account
of her pregnancy. It is unimaginable and highly improbable for a
woman who is in a middle of a pregnancy and whose father has just

7 CA-G.R. No. 52753-R, June 28, 1978, cited in PT&T vs. NLRC (G.R. No. 118978, 23 May 1997)
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suffered stroke two days earlier to just abandon her employment,

especially when she had no other source of income for survival.
Santillan had a delivery to prepare for, vitamins and supplements to
take, check-ups to go to, and an ailing father to provide for. Surely,
one would not just easily throw away her job in the middle of all these
financial concerns.

The Supreme Court has consistently held that in cases where

abandonment is the cause for termination of employment, two factors
must concur: (1) there is a clear, deliberate and unjustified refusal to
resume employment; and (2) a clear intention to sever the employer-
employee relationship. 8 The burden of proof that there was
abandonment lies with the employer. Where the employee takes steps
to protest his layoff, it cannot be said that he has abandoned his work
because a charge of abandonment is totally inconsistent with the
immediate filing of a complaint for illegal dismissal, more so when
it includes a prayer for reinstatement.9

The Honorable Labor Arbiter faulted Santillan for not

submitting substantial evidence to prove her dismissal. Admittedly,
no Notice of Termination was sent to Santillan, and understanbly so:
Knowing that their policy against pregnant women is contrary to law,
management would of course be very careful not to leave any paper
trail so that invoking deniability would be easy. However, the absence
of such notice does not necessarily negate the fact of termination. In
this case, Santillan was categorically instructed not to report back for
work in view of her condition. In fact, in a Memorandum from the
management dated January 15, 2015, a copy of which is attached as
Annex ”H,” the schedule of the shift of Santillan supposedly for
January 18, 22, 23 and 24 was wiped out with correction fluid,
indicating that she was no longer given a shift for such days. Also
attached hereto as Annex “I” is another Memorandum dated January
30, 2015 in which the name of Santillan no longer appears. Finally, in
a Memorandum dated February 16, 2015, copy of which is hereto
attached as Annex “J” the name of Santillan also does not appear.
These Memoranda all point to one thing: the termination of Santillan
was not voluntary on her part. It was respondent-appellee’s intention
to terminate her upon discovering that she was pregnant.

While the NLRC-7th Division correctly ruled that Santillan was

illegally dismissed, it failed to appreciate the damages suffered by

8Chavez v. National Labor Relations Commission, G.R. No. 146530, January 17, 2005.
9Stamford Marketing Corporation v. Julian, G.R. No. 145496, February 24, 2004, 423 SCRA 633, 649;
Emphasis supplied.
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Santillan as a consequence of her unceremonious termination. Despite

the deplorable act of private respondents, the NLRC-7th Division only
awarded P10,000.00 as damages. It is respectfully submitted that this
award by the public respondent sends a message to other employers
similarly inclined that it is just fine to terminate women employees on
account of their pregnancy. This should not be the case. Thus, through
this petition, the Honorable Court is respectfully urged to send a
strong and definite message to employers with chauvinistic tendencies
that it is absolutely morally and legally wrong to discriminate against,
and terminate a female employee solely on account of her pregnancy.

Public respondent in finding that

petitioners’ dismissal was in
compliance with procedural due
process

Jurisprudence has expounded on the guarantee of security of

tenure and its implementation by reiterating that the employer must
furnish the worker to be dismissed with two written notices before
termination of employment can be effected: a first written notice that
informs the worker of the particular acts or omissions for which his or
her dismissal is sought, and a second written notice which informs the
worker of the employer’s decision to dismiss him. 10 Between these
two notices, the worker must be afforded ample opportunity to be
heard.

In the instant case, however, no opportunity at all was ever given

by private respondent to the petitioners to explain why they should
not be terminated. Petitioners were denied the chance to confront the
specific charges levelled against them. They were not given the
opportunity to present evidence that would otherwise destroy
respondents’ basis of their dismissal.

For refusing to pay something that they did not take, they were
instantly kicked out. No warning. No notice. No hearing. Just a letter
of termination telling them that their services were no longer needed.

Surely, the previous meetings they had with private respondent

cannot, by any stretch of the imagination, be deemed as adequate
notice and opportunity to heard, as it was not in any way related to the
eventual termination of the petitioners, the same being a meeting

10 Tiu v. NLRC, G.R. No. 83433, November 12, 1992, 215 SCRA 540
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where private respondent pressure herein petitioners to assume and

pay him the losses. At the time said meetings were held, there was as
yet no move to terminate petitioners.

What is clear is that the first notice was received by petitioners

only on 14 March 2015, and said notice terminated their employment
two days after or on 16 March 2015.

Violation of procedural due process was even glaring in the case

of Santillan, who without doing anything wrong was fired right there
and then. Her only fault? Carrying a human being inside her womb.
Again, no warning. No notice. No anything. The next thing she knew,
she was no longer in the schedule for the following week. In
terminating Santillan, it was as if respondent Hojilla was just shooing
away a fly!

EPILOGUE

Petitioners commiserate with the alleged losses of private

respondent-company; however, then and now, the misfortune of a
company can never be shifted to its innocent employees, whose rights
to security of tenure and to labor standard benefits are well protected
by law and cannot be defeated by unfounded allegations of negligence
and loss of confidence. While complainants-appellants recognize the
right of the respondents to do everything to recover their alleged
losses, such right must not be arbitrarily and unjustly exercised at the
expense of those innocent people who had no participation in
whatever may have caused such losses. Forcing one’s lowly
employees to pay for something they did not take just to ensure that
the employer maintains his economic gains, firing them when they
refuse to do so and even filing an unfounded criminal case against
them to compel them to pay, are, no doubt, repugnant to the
conscience, in the same manner that shooing away a female employee
on account of her pregnancy is repulsive to the basic concept of justice
and fairness. These acts should not be allowed by this Honorable
Court of Appeals to go unpunished. Justice should take its course.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of

the Honorable Court that after due consideration, the Decision and
Resolution of National Labor Relations Commission Seventh Division
be PARTIALLY REVERSED insofar as the findings with respect to
Page 17 of 18
Petition for Certiorari
Cordova, et al. vs. NLRC-7th Division and Hogen Energy Ventures, Inc.
x--------------------------------------------------------x

respondents Cordova, Bajala and Samoy, as well as on the award of

damages for respondent Santillan, and be AFFIRMED insofar as the
finding of illegal dismissal of Santillan.

Other relief and remedies just and equitable under the premises
are likewise prayed for.

RESPECTFULLY SUBMITTED. Bacolod City for Cebu City,

Philippines, 23 September 2016.

MAC LORD O. ZAFRA

Roll of Attorneys No. 60153
IBP No. 1008422 [01.05.16] Negros Occidental
PTR No. 6338621 [01.05.16] Bacolod City
MCLE Compliance No. IV-0009206 [10.25.12]
MCLE Compliance No. V-0001273 [12.20.13]

Counsel for Petitioners

VALENCIA VALENCIA CIOCON DIONELA PANDAN

RUBICA RUBICA & GARCIA LAW OFFICES
2/F JSY Bldg., San Agustin Drive corner 18th Street
6100 Bacolod City, Philippines
Telefax: (+63 34) 433-3444

Copy furnished:

Atty. Jigger Locsin

Counsel of record for the private respondent
2nd Floor, Cineplex Bldg.
Araneta St., Bacolod City

National Labor Relations Seventh Division

5th Floor,DOLE VII Bldg
Cor. Gen. Maxilom and Gorordo Avenues
6000 Cebu City
Page 18 of 18
Petition for Certiorari
Cordova, et al. vs. NLRC-7th Division and Hogen Energy Ventures, Inc.
x--------------------------------------------------------x