Republic of the Philippines

Department of Labor and Employment

National Labor Relations Commission
Quezon City

DIVISION

MARVIN T. SANTONIA LAC NO.08-002559-17

RONALDO R. CHAVEZ NLRC RAB V CASE NO. 12-00222-16
SOTERO C. MUSA NLRC RAB V CASE NO. 12-02225-16
VICENTE C. SALVADOR NLRC RAB V CASE NO. 12-00229-16
GASPAR B. TOCA NLRC RAB V CASE NO. 12-00232-16
RONALDO E. FERCOL NLRC RAB V CASE NO. 12-00235-16
FRANCIS M. JULOC NLRC RAB V CASE NO. 12-00237-16

NAZARIO N. ALAMA, JR
REYNALDO M. RICERO
EMMANUEL B. MUSNI
ANTONIO B. LAURINARIA
ANTHONY L. JETAJOBE
WILLIAM L. MACAPAGAL
CARLOS L. DELLOSA, JR.
JAMES B. BUNCHA
HERMAN N. NAMORA
JOEL R. SICAD,
SAMUEL A. DAGNALAN JR.,
ROMEO S. BANIEL
EDMUNDO D. DAPO
NOE D. ARIATE
NOEL G. LARCE
HENRY F. PERAN
Complainants-Appellees

-versus-

EL DORADO SECURITY &

INVESTIGATION AGENCY/
DIONESIO P. OLARTE, HONESIMO HIFE
& MARILYN A. HIFE
Respondents-Appellants.

SUPPLEMENTAL MEMORANDUM OF APPEAL

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 (FOR APPELLANT - RESPONDENTS )

Appellant, HONESIMO HIFE and MARILYN A. HIFE unto this Honorable

Commission most respectfully files this supplemental appeal from the Decision
dated 17 April 2017, copy of which was received by appellant on 19 June 2017,
the dispositive portion of which reads:

“ WHEREFORE, in view of the foregoing judgment is hereby rendered

ordering respondent EL DORADO SECURITY AND INVESTIGATION
AGENCY/DIONOSIO P. OLARTE/HONESIMO B. HIFE/MARILYN A. HIFE, in solidum,
to pay complainants MARVIN T. SANTONIA, RONALDO R. CHAVEZ, SOTERO C.
MUSA, VICENTE C. SALVADOR, GASPAR B. TOCA, RONALDO E. FERCOL, FRANCIS
M. JULOC, NAZARIO N. ALAMA, JR, REYNALDO M. RICERO, EMMANUEL B. MUSNI,
ANTONIO B. LAURINARIA, ANTHONY L. JETAJOBE, WILLIAM L. MACAPAGAL,
CARLOS L. DELLOSA, JR., JAMES B. BUNCHA, HERMAN N. NAMORA , JOEL R.
SICAD, SAMUEL A. DAGNALAN JR., ROMEO S. BANIEL, EDMUNDO D. DAPO, NOE D.
ARIATE, NOEL G. LARCE, HENRY F. PERAN, their salary differential (subject to
application of RA 8188), overtime pay, holiday pay, premium pay for holiday and
rest day, service incentive leave pay, night shift differential pay and 13 th month pay
plus attorney’s fees for ten (10) percent of the total monetary award for Php
4,491,702.50 xxx,

SO ORDERED.”

I. NATURE OF THE APPEAL

1. Undersigned individual Respondent – Appellants file the herein

supplemental appeal in order to reinforce its Memorandum of Appeal based on
the merits of the case and move to set-aside the TECHNICALITY which the Labor
Arbiter of Origin has applied strictly based on the provision of Sec.5, Rule V,
2011 NLRC Rules of Procedures tantamount to the deprivation of substantive due
process giving undue preference in the procedural process over substantive rights
of the respondents in effect sacrificing justice over technicality;

2. We beg before this Honorable Commission to please take a closer perusal

on the merits of the case and give opportunity for the respondent to present its
legal position in the case based on the merits of the case and to raise the
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erroneous application of the straight computation and the application of double
indemnity law under RA 8188.

3. Furthermore, there is no basis for the monetary awards against the

undersigned individual respondents as the basis of the decision is purely based on
the one-sided self-serving complaint-affidavit of the complainants contrary to
credible pieces of evidence submitted and attached to the Memorandum of
Appeal mailed last June 29, 2017.

II. PARTIES

4. Respondent –appellant company , managed by the individual respondent,

DIONESIO P. OLARTE, owner-proprietor, is a duly organized company under the
Philippine Laws , engaged in providing security and investigative services to its
clients, with principal office address at 102 Otek Business Center, Otek St. Baguio
City, where orders, decision and resolution of this Honorable Commission may be
served.
While undersigned individual respondents, Appellants, HONESIMO HIFE
and MARILYN A. HIFE are both employees of the respondent –appellant company
where orders, decision and resolution of this Honorable Commission may be
served at the same address.

5. On the other hand , complainants-appellees, are former employees of the

respondent-appellant who were absorbed directly by our client, SORSOGON II
Electric Cooperative (SORECO II) without the consent of the respondent-appellant
and who has outstanding unpaid billings amounting to more than FIVE MILLION
PESOS ( Php 5,000,000.00) in breach of the Service Agreement committed by
SORECO II. They may be served with orders, decision and resolution of this
Commission through their counsel, Atty. Roy P. Lladoc, with office address at Rizal
St., Brgy.15 Old Albay District, Legazpi City.

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 III. ANTECEDENTS OF THE CASE

6. Due to obvious partiality and bias of the Labor Arbiter a Quo as experienced
by the respondent – appellant in previous cases he handled, on January 08, 2017
a Motion for Inhibition was filed;

7. However, in a one (1) page Order dated January 20, 2017, the said motion
was denied by the Labor Arbiter a Quo, which practically deprived the
respondent-appellants to file its position paper on the scheduled date of January
11, 2017;

8. Needless to say, only the complainants-appellees have filed the position

paper on January 11, 2017 while the respondent-appellant did not file as it awaits
the resolution of the Motion for Inhibition it filed against the Labor Arbiter;

9. After denying the Motion for Inhibition and the Motion for Reconsideration,
the Labor Arbiter , directed the complainants to file position paper on March 03,
2017 without any notice to the respondent to file its position paper;

10. The Labor Arbiter, with undue haste , submitted the case for resolution
without re-scheduling the date on which the respondent may submit its legal
position paper or hold any conference for the date of submission;

11. Thus, the Labor Arbiter’s decision is just a mere replication of the
unchallenged position paper of the complainants-appellees plus the
consequential award under the Labor Laws which are tainted and adulterated
with fabricated evidence as submitted by the complainants-appellees. Hence, this
supplemental Memorandum of Appeal.

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 IV. STATEMENT OF FACTS

12. The complainants filed a complaint against the undersigned who are
neither owners nor real party in interest in the case, HONESIMO HIFE and
MARILYN A. HIFE , along with the owner-proprietor , DIONESIO P. OLARTE , for
money claims such as underpayment of wages, non-payment of overtime pay,
non-payment of holiday pay and premium pay, and non-payment of rest day
including its premium pay;

13. After mandatory conferences, parties failed to reach amicable settlement,

the Labor Arbiter a Quo directed the parties to file position paper on January 11,
2017;

14. A motion for inhibition was filed by the company respondent-appellant,

through its counsel for manifest bias and partiality of the Labor Arbiter in the
previous cases which he handled and decided against the respondent-appellant
without factual and legal bases;

15. However, it was denied . Although, a prohibited pleading of motion for

reconsideration was filed by the counsel of the respondent-appellant,
nevertheless, the undersigned individual respondent-appellants are entitled to
their day in court and to submit documentary evidence in their defense, a right
that was deprived from them by the proceedings of the Labor Arbiter due to
technicality in its decision dated April 17, 2017;

16. Contrary to the complainants hand written itemized computations

submitted before the Labor Arbiter, the company respondents-appellants payrolls
duly signed by the complainants revealed that they were paid with minimum
wage and other wage related benefits in accordance with the existing PADPAO

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Rate. Attached in the Memorandum of Appeal as Annex-J and Series are copies of
the payrolls from May 01, 2014 to June 16, 2016 as highlighted. The payrolls show
the amount they received as wages, overtime pay, holiday pay and premium pay,
and rest day pay including its premium pay;

17. Complainants, as shown by the Contract of Security Services were

rendering only an eight (8) hour work shift and NOT 12 to 48 hours a day as they
alleged in their position paper. The contract of services and affidavits of other
guard were submitted and marked as Annex-A and Annex-K respectively attached
to the Memorandum of Agreement. In fact, their submitted fabricated DTRs
exude only eight (8) hour work contrary to their allegations of rendering 12 to 40
hours a day;

18. Without analyzing and scrutinizing the complaint-affidavits, the conflicting

allegations of the complainants in their position paper and their attached
fabricated evidence, the Labor Arbiter a Quo swallowed without hesitation all the
myths of allegations of the complainants as perfectly true and rendered decision
using straight computation based on presumption, speculation and assumption to
come-up with an award of more than Four Million Pesos against the company
respondent-appellant and undersigned individual respondents ;

19. On April 17, 2017 , the Labor Arbiter handed down the decision against
the respondent-appellants and received by the respondent-appellant last June 19,
2017 which is now the subject of the Supplemental Memorandum of Appeal;

V. GROUNDS FOR THE APPEAL

1. WITH DUE RESPECT, THE HONORABLE LABOR ARBITER GRAVELY,

SERIOUSLY AND PALPABLY ERRED IN THE FINDING OF FACTS THAT THE
COMPLAINANTS-APPELLEES ARE ENTITLED TO MONEY CLAIMS CONTRARY TO
THE EVIDENCE SUBMITTED BY RESPONDENT-APPELLANT; AND
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 2. WITH DUE RESPECT, THE HONORABLE LABOR ARBITER COMMITTED
GRAVE ABUSE OF DISCRETION TANTAMOUNT TO EXCESS OR LACK OF
JURISDICTION WHEN HE ATTACHED LIABILITY TO INDIVIDUAL RESPONDENTS,
HONESIMO HIFE & MARILYN A. HIFE, WHO ARE NEITHER THE OWNER NOR THE
REAL PARTY- IN- INTEREST .

VI. ARGUMENTS AND DISCUSSIONS

ON THE FIRST GROUND:

1. WITH DUE RESPECT, THE HONORABLE LABOR ARBITER GRAVELY,

SERIOUSLY AND PALPABLY ERRED IN THE FINDING OF FACTS THAT THE
COMPLAINANTS-APPELLEES ARE ENTITLED TO MONEY CLAIMS CONTRARY TO
THE EVIDENCE SUBMITTED BY RESPONDENT-APPELLANT;

20. Undersigned respondent reechoed the Supreme Court pronouncement in

the case of Jose vs. CA et al., 222 SCRA 25 that:
“ It should not be forgotten that a question of fact is to be determined by the
evidence offered to support a particular contention.”

21. Thus, when it is alleged by the employee that she has not been properly
paid her wages and benefits, substantial evidence should be presented by the
complainant showing not only that she rendered compensable services, but also
how much he was paid for the same. Mere allegation of underpayment or non-
payment cannot suffice to establish said fact ( Electric Cooperative Inc., vs. NLRC
et al.,323 SCRA 258);

22. Moreover, “not only there may be some evidence to support a finding or
conclusion, but evidence must be substantial. Substantive evidence is more than
a scintilla . It must be such relevant evidence as a reasonable mind might accept

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as adequate to support a conclusion”. ( Gelmart Industries Phils., vs. Legardo,
Jr.155 SCRA 403);

23. Further, respondent has established based on submitted evidences, that

complainant was paid of minimum wage and wage related benefits (Mark Roche
International vs. NLRC et al., 313 SCRA 356);

24. The imposition of double indemnity under RA 8188 has no factual basis for
the findings of the Labor Arbiter a Quo is rendered purely on technicality and not
on the merits of the case. Besides, the non-payment of minimum wage
adjustment is due to non-compliance of the client, SORECO II, and not of the
respondent security agency, more so by the undersigned individual respondent;

ON THE SECOND GROUND:

2. WITH DUE RESPECT, THE HONORABLE LABOR ARBITER COMMITTED

GRAVE ABUSE OF DISCRETION TANTAMOUNT TO EXCESS OR LACK OF
JURISDICTION WHEN HE ATTACHED LIABILITY TO INDIVIDUAL RESPONDENTS,
HONESIMO HIFE & MARILYN A. HIFE, WHO ARE NEITHER THE OWNER NOR THE
REAL PARTY- IN- INTEREST .

25. Undersigned Individual respondents-appellants have never dismissed

the complainants-appellees as the undersigned have no power to dismiss them.
No iota of evidence is ever presented by the complainants-appellants , even
scintilla of evidence that they were dismissed by the undersigned individual
respondents. How come the complainants be illegally dismissed when the very
fact of dismissal is absent in this case? It is axiomatic that when the issue of
dismissal itself is the crux of the matter, it is the employee who is burdened to
show by clear, positive and convincing evidence the fact thereof ( Machica, et al.,
vs. Roosevelt Services Center, Inc., et al. G.R. No. 168664, 04 May 2006);

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 26. With regard to claim for moral and exemplary damages, as enunciated

by the Supreme Court in Viernes v. National Labor Relations Commissions, an

employer is ONLY liable to pay indemnity in the form of damages to an employee

who has been dismissed if, in effecting such dismissal, the employer fails to

comply with the requirements of due process;

27. In the instant case, respondent showed no bad faith in the baseless

allegations made by complainants and there was no oppression, intimidation or

threat caused by Respondent to entitle complainant to such damages;

28. Likewise, respondent are not liable for any complainant’s claim for

moral and exemplary damages considering that they have no legal basis to stand

on in the absence of bad faith and/or malice on the part of the respondent in

this case; and

29. Finally, undersigned pray that they, in the absence of any evident bad

faith or malice on the part of the undersigned individual respondents in the

performance of their functions and duties as co-employees of the complainants-