SAMPLE MEMORANDUM OF APPEAL

(Appeal from the Labor Arbiter’s Decision to the NLRC)

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Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION
___th Division
_____ City
___________________________ ,
Complainant-Appellee,

NLRC Case No. VAC-____________

-versus- RAB Case No. ___________

___________________________ ,
Respondent-Appellant.
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MEMORANDUM OF APPEAL
(do not include colored texts – just the TITLE)
COMES NOW RESPONDENT-APPELLANT, through the undersigned counsel, unto this
Honorable Commission, respectfully submits this Memorandum of Appeal and states that:

STATEMENT OF TIMELINESS OF THE APPEAL

Appellant, through counsel, received a copy of the Honorable Labor Arbiter’s decision
on 3 September 2010. He filed his appeal on 7 September 2010. The running of the ten (10)-
day period prescribed by the rules to perfect an appeal commenced on 3 September 2010 and
ends on 13 September 2010. Inasmuch as appellant filed his appeal on 7 September 2010, the
filing of his appeal is thus timely.

GROUNDS FOR APPEAL

Appellant lays down the following as his grounds for appeal:

1) There are serious errors in the findings of facts by the Honorable Labor Arbiter, which, if not
corrected would cause grave or irreparable damage or injury to the appellant;

2) There is prima facie evidence of abuse of discretion on the part of the Honorable Labor
Arbiter.

ASSIGNMENT OF ERROR
 The Honorable Labor Arbiter, with abuse of discretion, seriously erred in finding
complainant-appellee as having been illegally dismissed from employment and in awarding her
separation pay and backwages.

STATEMENT OF THE CASE

(proceedings & what transpired within the case)

This all started on 15 August 2009, when a complaint for illegal dismissal, as well as
moral and exemplary damages was filed by herein appellee against appellant, before Regional
Arbitration No. ____ of the NLRC.

On 24 August 2010, a decision was rendered by the Honorable Labor Arbiter finding
appellee to have been illegally dismissed from employment and ordering appellant to pay the
latter’s separation pay and backwages.

Aggrieved by this decision and after having determined that he is equipped with the
grounds for appeal, appellant elevated the matter before this Honorable Commission.

STATEMENT OF FACTS

Appellant is engaged in the business of merchandising pharmaceutical and medical

supplies to the general public. As an incident thereto, appellant would require occasional
carpentry work for the creation and maintenance of its branches or outlets. Thus, it is
constrained to hire temporary workers for this purpose.

On the other hand, appellee is one of the workers hired by appellant to do temporary
carpentry work. His services were engaged by appellant only for a period covering 1 February
2009 to 31 July 2009. After the expiration of the term of his employment, appellant no longer
knew of appellee’s whereabouts. That’s why, her filing of a complaint for illegal dismissal, as
well as moral and exemplary damages came as a shock to appellant.

Conciliation and mediation proceedings were subsequently conducted by the Honorable

Labor Arbiter, but the parties failed to come up with an amicable settlement of the case.

ISSUE

THE SOLE ISSUE INVOLVED IN THIS CASE IS WHETHER OR NOT THE

HONORABLE LABOR ARBITER CORRECTLY RULED THAT APPELLEE WAS ILLEGALLY
DISMISSED BY APPELLANT, TO ENTITLE HER TO SEPARATION PAY AND
BACKWAGES.

DISCUSSION
(based on the appeal – jurisprudence & LC)
 Appellant firmly contends that the Honorable Labor Arbiter committed abuse of
discretion and serious error in ruling that the appellee was illegally dismissed from
employment. In the case of Ledesma, Jr. vs. NLRC, G.R. No. 174585, 19 October 2007, the
Honorable Supreme Court held that:

“…xxx…We have scrupulously examined the records and we found no evidence

presented by petitioner, other than his own contentions that he was indeed dismissed by
private respondent.

While this Court is not unmindful of the rule that in case of illegal dismissal, the
employer bears the burden of proof to prove that termination was for a valid or
authorized cause, in the case at bar, however, the facts and the evidence did not
establish a prima facie case that the petitioner was dismissed from employment. Before
the private respondent must bear the burden of proving that the dismissal was legal,
petitioner must first establish by substantial evidence the fact of his dismissal from
service. Logically, if there is no dismissal, then there can be no question as to the legality
or illegality thereof.

In Machica vs. Roosevelt Services Center, Inc. we had underscored that the
burden of proving the allegations rest upon the party alleging, to wit:

‘The rule is that one who alleges a fact has the burden of
proving it; thus, petitioners were burdened to prove their allegation
that respondents dismissed them from their employment. It must be
stressed that the evidence to prove this fact must be clear, positive
and convincing. The rule that the employer bears the burden of proof
in illegal dismissal cases finds no application here because the
respondents deny having dismissed the petitioners.’

In Rufina Patis Factory vs. Alusitain, this Court took the occasion to emphasize
that:

‘It is a basic rule in evidence, however, that the burden of

proof is on the part of the party who makes the allegations – ei
incumbit probation, qui dicit, non qui negat. If he claims a right
granted by law, he must prove his claim by competent evidence,
relying on the strength of his own evidence and not upon the
weakness of that of his opponent.’ ”

Here, the findings of the Honorable Labor Arbiter in support of his decision were based
on speculations and conjectures. He merely relied on the allegations of appellee,
notwithstanding the fact that the latter was unable to present even an iota of evidence to
buttress her claims. It should be stressed, that the appellee was not illegally dismissed, rather
her employment ended with the expiration of its term.

The Honorable Supreme Court made it clear, that the fact of dismissal must first be
established by the employee before the employer is burdened with proving the legality or
illegality thereof. As the appellee was not able to substantiate her charge of illegal dismissal,
more so, the fact of her dismissal, hence, the Honorable Labor Arbiter exceeded his authority
and abused his discretion in deciding the case in her favor. Likewise, he committed serious
errors in his findings of facts, in relying solely and giving credence to the appellee’s baseless and
false allegations, without taking into consideration the appellant’s averrations and the
evidences presented by him.

All told, the Honorable Labor Arbiter incorrectly ruled that appellee was illegally
dismissed by appellant. Hence, the award of separation pay and backwages he accorded to
appellee must necessarily fall for want of legal and factual basis.

PRAYER
(relief sought)
WHEREFORE, it is most respectfully prayed of this Honorable Commission:

1) that the Labor Arbiter’s decision dated ____, be REVERSED and SET ASIDE;

2) that a new decision be promulgated DISMISSING the instant case for sheer lack
of merit.

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

_______________, Philippines, 6 September 2010.

(Counsel for the Appellant)

(Copy Furnished:)
_________________

(EXPLANATION)

(VERIFICATION AND CERTIFICATE OF NON-FORUM SHOPPING)