Republic of the Philippines

COURT OF APPEALS
Cebu City

NINETEENTH (19TH) DIVISION

LEYTE LUMBER YARD and

HARDWARE, INC. and
RUBEN L. YU,
Petitioners,

-versus- CA-G.R. SP. No. 05183

NATIONAL LABOR RELATIONS
COMMISSION and FERNANDO
C. GOSOSO,
Respondents.
x----------------------------------------- x

COMMENT

PRIVATE RESPONDENT FERNANDO C. GOSOSO, by counsel,

respectfully submits this COMMENT in compliance with the Resolution of the
Court dated 19 August 2010, a copy of which was received on 14 September
2010.

PRELIMINARY STATEMENT

This is a petition for certiorari filed by the petitioner pursuant to Rule 65 of

the 1997 Rules of Civil Procedure seeking to nullify the 28 August 2009 Decision
of the National Labor Relations Commission, Fourth Division, Cebu City, which
reversed and set aside the appealed 7 April 2009 Decision of the Labor Arbiter,
and the 26 February 2010 Resolution denying petitioner’s 3 November 2009
motion for reconsideration.

STATEMENT OF THE CASE

1. On 13 October 2008 the private respondent filed a complaint for illegal

dismissal, etc. against the petitioner before the Regional Arbitration Branch VIII of
the National Labor Relations Commission at Tacloban City.
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2. A mandatory conference was held on 30 October 2008 and 7 January

2009, but a settlement did not materialize. Hence, the parties were required to
submit their respective position papers within 20 days from receipt of the Order
on 29 January 2009, or until 18 February 2009.

3. Private Respondent filed his complainant’s position paper on 9

February 2009 while petitioner filed his respondent’s position paper on 2
March 2009 (or beyond the 20 days period as required by the arbiter’s order
dated 7 January 2009) sans verification. Then it submitted on 25 March 2009
another position paper with a belated verification of instant date. Private
respondent filed his reply position paper on 16 March 2009.

4. On 28 April 2009, private respondent received a copy of the Decision

dated 7 April 2009 promulgated by the Honorable Labor Arbiter, rendering this
dispositive portion, to wit:

“WHEREFORE, this case is hereby DISMISSED for lack of merit.”

5. On 7 May 2009, private respondent filed his Notice of Appeal with

Appeal Memorandum to herein public respondent Fourth Division of the
National Labor Relations Commission at Cebu City.

6. On 28 August 2009, the public respondent promulgated its Decision

reversing the assailed Decision of the Honorable Labor Arbiter.

7. Petitioner filed a Motion for Reconsideration dated 3 November 2009.

Petitioner filed an Opposition to the Motion for Reconsideration dated 18
November 2009.

8. On 26 February 2010, the public respondent promulgated its

Resolution, the dispositive portion stating to wit:

“WHEREFORE, the instant motion for reconsideration is hereby

DENIED. Accordingly, Our questioned Decision STANDS.”

11. Hence, the petition for certiorari by Leyte Lumber Yard and
Hardware, Inc. / Ruben Yu, alleging that the public respondent committed grave
abuse of discretion in promulgating the assailed decision and resolution.
 3

STATEMENT OF THE FACTS

In their respective position papers before the Labor Arbiter, the parties
alleged the following facts:

VERSION OF PRIVATE RESPONDENT (complainant): (pp. 17-19, Records)

Complainant reports for work every Monday to Saturday before 7:00

o’clock in the morning until 5:00 o’clock in the afternoon. As a sales
clerk/checker, he received a salary of P60.00/day in 1991 which was increased to
P220.00/day only in 2006. It remained so until the time he was illegally
terminated by the respondent.

On 2004, respondent Ruben Yu took over the full control of Leyte Lumber
Yard, lock stock and barrel – as his share in the partition of the estate of his late
father Roque Yu, Sr. He likewise assumed the responsibility of the old employees
of Leyte Lumber Yard. Unfortunately, herein complainant and some others who
were retained by Leyte Lumber Yard were not given their separation pay, since
they were assured that their services would continue uninterruptedly with the
present owner. (Note: The decision mistakenly placed the word “not” before
“continue”)

Like all sales clerks, he was subjected by the respondent Ruben Yu to

public insults and embarrassments, including salary deduction of P20.00 for
every clerical error in the computer.

Specifically, on 6 October 2008, Ruben Yu shouted invectives on him

when he asked permission to go upstairs to follow-up a hasty order of a toilet
bowl from a customer in a hurry to go home. This was followed by another
display of arrogant temper of Ruben Yu on 7 October 2008 when he yelled at the
complainant who simply asked the permission of a guard to peep outside to
check if there is a sample of a size of ball caster being ordered by a customer.

For these two (2) incidents, Ruben Yu orally required complainant to make
a letter of apology, otherwise complainant would be terminated from his work. In
compliance with said verbal order, complainant submitted his 8 October 2008
signed letter of apology.
 4

Instead of accepting this letter, respondent Ruben Yu wrote a marginal

note on the right side of the letter, instructing the complainant to revise his letter
of apology to contain this notation, to wit:

“I am not suppose to approach the checker. “

“I promise again to ask permission from manager before I
can go out.”

So, on 10 October 2008, complainant submitted again his second letter

of apology, dated 9 October 2009, but the original copy of which was thrown by
Ruben Yu to the waste basket. He was told again to return the following day.

On 11 October 2008, when he returned to see Ruben Yu, he was told to

sign a prepared document. However, he refused to sign the same as he honestly
believed that the same was prejudicial to him, as he is forced to admit offenses
he did not commit.

At that instance, Ruben Yu flared up with his usual hot temper, and told
him that he is terminated from work on that very day. As a matter of fact, Ruben
Yu even threw a sharp scissors towards the complainant, who was almost hit by
a narrow margin.

VERSION OF PETITIONERS (respondents): (pp. 40-41, Records)

(Your) Respondent RUBEN L. YU is the General Manager of the Leyte

Lumber Yard and Hardware, Inc., with principal address at 188 Rizal Avenue,
Tacloban City. (Your) respondent had in its employ FERNANDO C. GOSOSO as
sales representative until October 15, 2008 when he refused to report back to
work despite having been instructed to do so when he was reprimanded for
violation of standard operating procedures and company policies on October 11,
2008. Complainant Gososo was entrusted with major responsibilities including
the critical functions of handling and processing of sales and inventories of the
day to day business operations of the enterprise.

Complainant Fernando C. Gososo as the sales representative of this

business establishment until the time he unilaterally decided not to report for
work sometime in October 2008 despite instructions for him to go back to work
after he was reprimanded for infractions to established procedures of the
company.
 5

(Your) respondent was constrained to verbally reprimand complainant

after personally witnessing acts he committed acts in violations of company
policies on October 6, 2008 foremost of which was to insure the integrity of
transactions and secure company stocks (A copy of such Memorandum is hereto
attached marked “1”). Complainant again violated the same company policy on
October 7, 2008 again personally witnessed by the respondent who called his
attention. Said act on October 7, 2008 was witnessed by security guard Arlene
Tolentino who executed an affidavit stating that she saw complainant Gososo go
outside of his designated work area allegedly to assist a customer (a copy of said
affidavit is attached marked “2”). Complainant on October 9, 2008 in a letter to
the respondent admitted to the acts and acknowledged that they were in violation
of company operational policies (a copy of letter of complainant is hereto
attached and marked “3”).

(Your) respondent upon receipt of said letter from complainant issued a

Memorandum on October 10, 2008 reminding him of the company policies he
violated and warned him that any further violation of company policies will cause
his dismissal from work.

On the same day of October 10, 2008 complainant nonchalantly again

ignored company policies and filed a leave of absence for October 11, 2008
purportedly to attend to the graduation of his son (a copy of complainant’s
application for leave is attached marked “4”). Complainant in doing so
disregarded the policy that such leaves be filed and approved days before such
actual date of leave. Complainant went on leave on said date and even extended
his leave of absence thereby constraining respondent to issue another
Memorandum on October 13, 2008.

Clearly complainant Gososo blatantly disregarded the policies he has

known and practiced in the years that he has been in the employ of the company
and after his attention was called as a matter of right provided in the Labor Code
of the Philippines one of which is the “power to control the employee’s conduct.”

CONTENTIONS

Was the complainant illegally dismissed? Is he entitled to his money

claims?
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The Labor Arbiter believes otherwise. In his decision, ELA Latoja ruled that
complainant violated company policies and no longer reported for work. On 6
October 2008 he went to the storage room to follow up a customer’s order but he
is not allowed to do so because this is against store policy. On 7 October 7, 2008
complainant steeped out of the store to check if there was a sample of a size of a
ball caster ordered by a customer. Complainant admitted his violations in his
letter of apology dated 9 October 2008 (as he was required to do so by Ruben
Yu). Because of his admissions respondent issued a memorandum dated 10
October 2008 to complainant which he refused to acknowledge receipt because
he believed that the same was prejudicial to him.

Again ELA Latoja found complainant violated respondent’s policy on the

matter of filing a leave of absence. Complainant was absent on 11 October 2008
to attend his son’s graduation but his application for leave of absence on 11
October 2008 was not approved because he did not observe the number of days
in filing a leave before it is approved. ELA Latoja opined that complainant could
not have been dismissed on 11 October 2008 because he was not around on
said date. On 13 October 2008 respondent issued a memorandum to
complainant relative to his unauthorized leave on 11 October 2008.

Based on these findings, ELA Latoja dismissed the case for lack of merit
in the decision dated 7 April 2009.

Private respondent (complainant) appealed the decision dated 7 April

2009, on the following grounds:

1. THE HONORABLE LABOR ARBITER COMMITTED GRAVE

ERROR WHEN HE DID NOT CATEGORICALLY RULE ON
THE BASIC ISSUE THAT APPELLANT IS A REGULAR
EMPLOYEE OF THE APPELLEE.

2. THE HONORABLE LABOR ARBITER COMMITTED GRAVE

FACTUAL AND LEGAL ERROR WHEN HE RULED THAT
APPELLANT WAS NOT ILLEGALLY DISMISSED BY
RESPONDENT ON OCTOBER 11, 2008.

3. THE HONORABLE LABOR ARBITER SERIOUSLY ERRED

WHEN HE DID NOT DECIDE THAT THE RESPONDENT-
APPELLEE IS LIABLE TO PAY COMPLAINANT FOR NON-
PAYMENT OF BACK SALARIES, ALLOWANCE, HOLIDAY
PAY, SERVICE INCENTIVE LEAVE PAY, SEPARATION PAY,
 7

13TH MONTH PAY, MORAL DAMAGES, EXEMPLARY

DAMAGES AND ATTORNEY’S FEES.

4. THE HONORABLE LABOR ARBITER COMMITTED

FACTUAL AND LEGAL ERROR WHEN HE DECIDED THAT
WHATEVER CLAIMS OF COMPLAINANT OF INHUMAN
TREATMENT SHOULD HAVE BEEN FILED WITH THE
CRIMINAL OR CIVIL COURT, NOT AN IMPROPER
REMEDY OF ILLEGAL DISMISSAL CASE WITH
UNPROVEN MONEY CLAIMS.

Herein public respondent, National Labor Relations Commission, Fourth

Division, Cebu City promulgated the assailed Decision dated 28 August 2009,
which reversed and set aside the appealed 7 April 2009 Decision of the Labor
Arbiter, by ruling that the complainant was illegally dismissed and is entitled to his
money claims, in this wise:
x-x-x
We resolve.

The issues for resolution are the following:

1. Whether or not complainant was illegally dismissed?
2. Whether or not complainant is entitled to his money claims?

On the first issue, we rule in the affirmative.

Respondents found complainant to have committed

violations of company policy on October 06 and 07, 2008.

Relative to the incident of October 06, 2008 complainant was

verbally required to submit a letter of apology. Complainant
submitted a letter of apology dated October 08, 2009 (p. 30) which
contained the following:

8 October 2008

Sir Ruben Yu:

Very sorry sir about the incident last 6 October because the customer
was insisting to me to get her bowl because she was in a hurry to leave.
There is no intention on my part to break the system. The fault was the
people upstairs did not immediately respond to the situation. That is why I
asked your permission to go upstairs to follow-up the bowl. Then, I asked
Liza, the checker, if we have 16mm x 200mm anchor bolt being ordered
by another customer, but she said we only have supply of ¾.

Then yesterday, there was a customer who asked if we have a similar

size of ball caster. So, I asked permission from the guard that I will peep
outside to see if we have sample of the same size of ball caster.

Again, I am sorry if these things peeve you or make you feel in bad mood
about me. But, to be honest, sir, I do not have any intention to neglect my
duties or break the system, but simply to entertain the customers of our
company.

I am submitting this matter now to your sound discretion.

 8

Very respectfully yours,

(Sgd) FERNANDO GOSOSO

Not contented with the letter of apology, respondent Ruben
Yu made a marginal note (p. 30) therein informing complainant that
his letter of apology should contain the following: “I am not suppose
to approach the checker” and “I promise again to ask permission
from manager before I can go out.”

On October 10, 2008 complainant submitted another letter of

apology dated October 09. 2008 (p. 31) containing the following:

October 9, 2008

Sir Ruben Yu,

I’d like to apologize about the incident last October 6. What really
happened was our customer that time has been waiting for more than 30
minutes for her toilet bowl. So I asked Reynaldo if he already prepare
bowl, he told me he is not the one preparing. So as a sales representative
assisting this client, it is my duty and responsibility to follow up the item
upstairs by my self before the customer gets angry and rude, which I
believe she was bout to be. So as an action to assist our client, which is I
normally do, I went my way up for follow up. Then you saw me and
topped me from going upstairs.

After that, you saw me talking with Liza. Its because another customer
was asking me if we have 16mm x 200mm anchor bolt. So I have to ask
Liza, the checker if we have a stock. She said we only have ¾.

Then the following day, there was a customer who asked if we have a ball
caster similar size to his sample. The ball caster samples have are
outside so I inform the guard that I will peep outside to see and to show
to the customer the ball casters that we have. That’s why you saw me
going out.

Again, sir, I am sorry for anything I did that make you peeve or make you
feel in bad mood. Honestly sir I don’t have any intention of making you
upset or neglect my duty or break any of your system. I was just doing the
best that I can to do my job to be productive to your company by assisting
your clients the best ways that I can.

Very truly yours,

FERNANDO GOSOSO

This letter was not accepted by respondent Ruben Yu.

Complainant was told to return the following day. When complainant
returned on October 11, 2008 he was told to sign a prepared
document but when he refused, he was immediately terminated.

Verily, what We see is that respondents dictated upon

complainant on what he should write in his letter of apology. This is
established by the marginal notes made by respondent Ruben Yu in
the letter of complainant dated October 08, 2008 (p. 30). To our mind,
it is not for respondent Ruben Yu to dictate what complainant
should write in his letter of apology. Complainant submitted another
letter of apology dated October 09, 2008 (p. 31) which was again
rejected by respondent Ruben Yu.

We cannot understand why respondent Ruben Yu would insist on

what complainant should write in his letter of apology. Truth be told,
 9

respondent Ruben Yu could have conducted an investigation on the

alleged violations of complainant. Sensing that complainant would
not give in to his demand, respondent Ruben Yu required
complainant to sign a prepared document. Complainant refused to
sign this which impelled respondent Ruben Yu to terminate him.

Respondents claim that complainant was absent on October

11, 2008 despite the non-approval of his leave application.
Respondents contend that complainant failed to observe the policy
that this should have been filed days before taking a leave of
absence. Respondents insist that complainant did not return to work
anymore.

We are not convinced.

An employee who takes steps to protest his lay-off cannot by

any logic be said to have abandoned his work. Clear, deliberate and
unjustified refusal to resume employment, and not mere absence is
required to constitute abandonment as a valid ground for
termination of employment. (George Jones vs. NLRC, G.R. No.
107729, December 06, 1995)

When respondent Ruben Yu rejected the second letter of

apology of complainant dated October 09, 2008 which the latter
submitted on October 10, 2008 respondent Ruben Yu told
complainant to return on October 11, 2008. When complainant
returned on October 11, 2008 respondent Ruben Yu told him to sign
a prepared document but complainant refused to sign this because
he believed that this was prejudicial to him. For refusing to sign the
prepared document, respondent Ruben Yu terminated complainant
on October 11, 2008 (Saturday). On October 13, 2008 (Monday)
complainant filed this complaint (p. 1).

Complainant cannot be said to have abandoned his work

because after his termination on October 11, 2008 he immediately
filed this complaint on October 13, 2008. It should be noted that
complainant had been in the employ of respondents since 1991 (p.
1). Such long period of time is enough reason why complainant
would not just abandon his work.

Jurisprudence is replete with rulings that for abandonment of

work to exist, it is essential that (1) the employee must have failed to
report for work or must have been absent without valid and
justifiable reason; and (2) there must have been an indisputable
intention to sever the employer-employee relationship manifested
by some overt acts, which the second element as the more
determinative factor. (Paulino Aliten vs. U-Need Lumber, et al., G.R.
No. 168931, September 12, 2006 citing Samarca v. Arc-Men
Industries, Inc. 459 SCRA 506, 515)

To establish a case of abandonment, the employer must

prove the employees’ deliberate and unjustified refusal to resume
employment without any intention of returning. Mere absence from
work, especially where the employee has been verbally told not to
report, cannot by itself constitute abandonment. The employer has
the burden of proving overt acts on the employee’s part which
demonstrate a desire or intention to abandon her work. (L.C.
Ordonez Construction, et al. vs. Imelda Nicdao, et al., G.R. No.
149669, July 27, 2006)

From the records of the case it is shown that complainant

applied for a leave of absence on October 11, 2008. It is our finding
 10

that on October 11, 2008 complainant went (p. 19) to see respondent
Ruben Yu who required him to sign a prepared document. This was
refused by complainant resulting to his termination. Verily, he could
not have proceeded to take a leave of absence on October 11, 2008
because he was terminated by respondent Ruben Yu on that day.
Moreover, if complainant did not return to work on October 13, 2008
(Monday) it is because he had been terminated from work and that
he filed a complaint against respondents on the same day.

With our finding that complainant was illegally dismissed,

complainant is entitled to reinstatement to his former position with
backwages. However, We deem it appropriate not to pursue his
reinstatement but grant him separation pay instead.

Backwages: 10/11/08 – 08/31/09 (subject to adjustment until

Finality of decision)

P5,720.00 x 10.666 months = P61,013.33

Separation Pay: 1991-10/11/08

P5,720.00 x 18 yrs. = P102,960.00

On the second issue, We cannot sustain complainant’s claim

for ECOLA, 13th month pay and service incentive leave pay.

From the payrolls submitted in evidence by respondents, it is

shown that complainant had been paid of his ECOLA and 13 th month
pay. On the other hand, complainant is not entitled to service
incentive leave pay because he was afforded vacation and sick
leave.

However, We grant complainant moral and exemplary

damages, each in the amount of P20,000.00. This is proper because
the dismissal of complainant was attended with bad faith or an act
oppressive to labor. (National Sugar Refineries Corporation vs.
NLRC, 308 SCRA 599).

Furthermore, We grant complainant an attorney’s fee

equivalent to ten (10%) percent of his monetary award. He engaged
the services of counsel to protect his right and interest.

Respondent Ruben Yu should be held jointly and severally

liable with respondent corporation because he acted with bad faith
in terminating the employment of complainant.

WHEREFORE, premises considered, the decision of

Executive Labor Arbiter Jesselito B. Latoja is hereby REVERSED
and SET ASIDE. A NEW Decision is entered declaring the illegal
dismissal of complainant.

Respondents Leyte Lumber Yard, Inc. and Ruben Yu are

hereby ordered to pay complainant, jointly and severally the
following:

1. Backwages------------------------------- P 61,013.33
2. Separation Pay------------------------- P102,960.00
3. Moral Damages------------------------- P 20,000.00
4. Exemplary Damages------------------ P 20,000.00
P203,973.33
5. Attorney’s Fee---------------------------- P 20,397.33
T o t a l ----------- P224,370.66
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SO ORDERED.

Aggrieved with the reversal of the public respondent’s decision, petitioners

filed a motion for reconsideration thereof, which was, however denied by the
public respondent in its Resolution promulgated on 26 February 2010.

WHY THE PETITION

AND PETITIONER’S PRAYER FOR TRO
AND/OR WRIT OF PRELIMINARY INJUNCTION
SHOULD NOT BE GRANTED

The petition and petitioner’s prayer for TRO and/or Writ of Preliminary
Injunction deserve outright denial, BECAUSE:

Public respondent acted in complete accord with

law and did not abuse its discretion when it
reversed and set aside the decision of the Labor
Arbiter.

DISCUSSION

The facts above show that certiorari does not lie against the questioned
Decision and Resolution of the public respondent. For an abuse of discretion to
justify a review by certiorari, the same must be patent and gross as to amount to
an evasion of a positive duty or a virtual refusal to perform a duty enjoined by
law, or to act at all in contemplation of law as where the power is exercised in an
arbitrary and despotic manner and by reason of passion and hostility.
(Commission on Internal Revenue vs. Court of Appeals, 257 SCRA 2000 (1996).
The action of the public respondent to reconsider and set aside its own decision
dated 28 August 2009 was in contemplation of law and conforms with the actual
facts of the case and evidence on hand. The public respondent took a cursory
second glance at the circumstances obtaining in the instant case and saw that
the Labor Arbiter was wrong in ruling that there was abandonment of work.

Petitioner claims that it was grave abuse of discretion for public

respondent to correct the facts as found by ELA Latoja (which premised on the
abandonment of work to justify the dismissal of the employee) and thus reversed
and set aside his decision.
 12

The special civil action of certiorari is not a remedy designed for correction
of errors of judgment. (Azores vs. SEC, 252 SCRA 387 (1996); Ramnani vs CA, 221
SCRA 582 (1993).

For an abuse of discretion to justify a review by certiorari, the same must

have been grave, which means such capricious and whimsical exercise of
judgment as might be equivalent to lack of jurisdiction. ( Abig vs. Constantino, 2
SCRA 299).

The action of the public respondent may not be characterized as

capricious or whimsical when it found that private complainant was summarily
dismissed and cannot be said to have abandoned his work because after his
termination on October 11, 2008 he immediately filed a complaint on Octobere
13, 2008. No grave abuse can be imputed in the public respondent when it
consequently declared that private respondent was illegally dismissed, was
entitled to backwages and separation pay, and that petitioners are jointly liable
for moral damages, exemplary damages and attorney’s fees.

Finally, there is no merit in the belated averment of petitioner that “private

respondent is employed by petitioner Leyte Lumber Yard & Hardware, Inc., which
is a personality separate and distinct from petitioner Ruben L. Yu.

The case of Sunio v. NLRC (127 SCRA 390) is not applicable in the
instant case; there was no evidence on record to show that Sunio, the general
manager of the corporation, acted maliciously or in bad faith in terminating the
services of private respondent. In the instant case, the dismissal of the private
respondent by petitioner Ruben Yu was attended with bad faith or an act
oppressive to labor. There is a general presumption favoring Joint liability in the
instant case, considering that petitioner Leyte Lumber Yard has acquiesced to
the illegal acts of petitioner Ruben Yu throughout the proceedings of this case,
until now.

On a similar note, SOLIDBANK Corp. v. Mindanao Ferroalloy Corp., et al.,

GR No. 153535, 28 July 2005, on the issue of joint liability, ruled that “ Petitioner
must be reminded that an issue cannot be raised for the first time on
appeal, but seasonably in the proceedings before the trial court.”
 13

WHEREFORE, private respondent prays that the petition be dismissed

forthwith and the prayer for TRO and/or writ of preliminary injunction be denied.

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

Tacloban City for Cebu City. 22 September 2010.

LEO S. GIRON
Counsel for Private Respondent
253 Avenida Veteranos, Tacloban City
Roll No. 37379
IBP Lifetime No. 00733
PTR No. 6741797; 1-4-10; Tacloban City
MCLE Compliance No. III-0006315; 11-23-09

COPY FURNISHED: Reg. Mail with Return Card

Atty. Phio L. Viovicente

Counsel for the Petitioners
1731 Dian St., Palanan, Makati City

NLRC 4th Division

Public Respondent
2F Orient Bldg.
Gen. Echavez-San Miguel Sts.
Cebu City

EXPLANATION

Seven copies of the Comment (with annexes) are filed with the Court of
Appeals, Cebu City, by registered mail, personal filing being impractical due to
constraints of time and distance. A copy each of the same Comment are
furnished the opposing counsel and public respondent NLRC 4 th Division by
separate registered mail for the same reasons.

LEO S. GIRON