Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATION COMMISSION
Sub-Regional Arbitration Branch No. VII
Dumaguete City

RICARDO M. BALNIG, ET. AL., RAB VII-12-0097-20-D

Complainant/s-Appellants

-versus-

CENTRAL AZUCARERA DE BAIS,

Respondent-Appellee.
x----------------------------------------------x

MEMORANDUM OF APPEAL

COMES NOW, complainants, RICARDO M. BALNIG, ET.

AL., through the undersigned counsel and unto this Honorable
Office, by way of appeal, most respectfully moves for this Honorable
Commission for the setting-aside of the Decision issued by the
Honorable Labor Arbiter dated 30 September 2021 finding for
respondent and humbly posits the following:

THE PARTIES

1. Complainant RICARDO M. BALNIG, of legal age, married,

Filipino and a resident of Brgy. Luka, Tanjay City, Negros
Oriental, who worked since February 2008;

2. Complainant GODOFREDO CATACUTAN JR., of legal age,

married, Filipino, and a resident of Brgy. Luka, Tanjay City,
Negros Oriental who worked since October 2002;

3. Complainant ROSALIO C. JEMINA, of legal age, married,

Filipino, and a resident of Brgy. Luka, Tanjay City, Negros
Oriental who worked since May 2014;

4. Complainant RODEL C. TORRES, of legal age, married, Filipino,

and a resident of Brgy. Luka, Tanjay City, Negros Oriental who
worked since October 2002;

5. Complainant PAQUITO M. REYES, of legal age, married,

Filipino, and a resident of Brgy. Luka, Tanjay City, Negros
Oriental who worked since September 2015;

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6. Complainant ARMANDO D. BALNIG, of legal age, married,
Filipino, and a resident of Brgy. Luka, Tanjay City, Negros
Oriental who worked since February 2008;

7. Complainant ELFRED C. TUBAL, of legal age, married, Filipino,

and a resident of Brgy. Luka, Tanjay City, Negros Oriental who
worked since February 2015;

8. Complainant ROGER C. ROSALES, of legal age, married,

Filipino, and a resident of Brgy. Luka, Tanjay City, Negros
Oriental who worked since October 2002;

9. Complainant ARNEL C. BALANSAG, of legal age, married,

Filipino, and a resident of Brgy. Luka, Tanjay City, Negros
Oriental who worked since September 2016;

10.Complainant SIRSIO R. QUIPOT, of legal age, married, Filipino,

and a resident of Brgy. Luka, Tanjay City, Negros Oriental who
worked since February 1994;

11.Complainant GINO M. ROSALES, of legal age, married, Filipino,

and a resident of Brgy. Luka, Tanjay City, Negros Oriental who
worked since February 2015;

12.Complainant JOVANTE V. PANTA, of legal age, married,

Filipino, and a resident of Brgy. Luca, Tanjay City, Negros
Oriental who worked since October 2015;

13..Complainant RICO R. GANTALAO, of legal age, married,

Filipino, and a resident of Brgy. Luka, Tanjay City, Negros
Oriental who worked since August 2014;

14.Complainant JOEMARY M. ROSALES , of legal age, married,

Filipino, and a resident of Brgy. Luka, Tanjay City, Negros
Oriental who worked since June 2012;

15.Complainant BRYAN O. TORRES, of legal age, married, Filipino,

and a resident of Brgy. Luka, Tanjay City, Negros Oriental who
worked since September 2016;

16.Complainant JAY-AR A. BELTE, of legal age, married, Filipino,

and a resident of Brgy. Luka, Tanjay City, Negros Oriental who
worked since March 2017;

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17.Complainant ERNIL L. SAGURAN, of legal age, married,
Filipino, and a resident of Brgy. Luka, Tanjay City, Negros
Oriental who worked since February 2008;

18.Complainant JOEY B. SANO, of legal age, married, Filipino, and a

resident of Brgy. Luka, Brgy. Sta. Cruz Nuevo, Tanjay City,
Negros Oriental who worked since August 2014;

19.Complainant ERNIE B. BARRERA, of legal age, married, Filipino,

and a resident of Brgy. Luka, Tanjay City, Negros Oriental who
worked since February 2008;

20.Complainant RENEBOY M. ROSALES, of legal age, married,

Filipino, and a resident of Brgy. Luka, Tanjay City, Negros
Oriental who worked since March 2015;

21.Complainant ROBERT P. CADAYDAY, of legal age, married,

Filipino, and a resident of Brgy. Luka, Tanjay City, Negros
Oriental who worked since February 2015;

22.Complainant GABRIL M. CANOY, of legal age, married, Filipino,

and a resident of Brgy. Luka, Tanjay City, Negros Oriental who
worked since March 2015;

23.Complainant BONIFACIO T. VILAR, of legal age, married,

Filipino, and a resident of Brgy. Luka, Tanjay City, Negros
Oriental who worked since August 2014;

24.Complainant JOSELITO D. VILLAFLORES, of legal age, married,

Filipino, and a resident of Brgy. Luka, Tanjay City, Negros
Oriental who worked since February 2008;

25.Complainant SABAS S. CADAYDAY, of legal age, married,

Filipino, and a resident of Brgy. Luka, Tanjay City, Negros
Oriental who worked since February 2007;

26.Complainant FAUSTINO T. TEJOC, of legal age, married,

Filipino, and a resident of Brgy. Luka, Tanjay City, Negros
Oriental who worked since March 2016;

27.Complainant BERNARDO B. CABANSAG, of legal age, married,

Filipino, and a resident of Brgy. Luka, Tanjay City, Negros
Oriental who worked since February 2008;
28.Complainant ANGELITO JAYME, of legal age, married, Filipino,
and a resident of Brgy. Luka, Tanjay City, Negros Oriental who
worked since July 2013;

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29.Complainant JEFFERSON ALBARIO, of legal age, married,
Filipino, and a resident of Brgy. Luka, Tanjay City, Negros
Oriental who worked since February 2008;

30.Complainant ROSWEL SALISAYO, of legal age, married,

Filipino, and a resident of Brgy. Luka, Tanjay City, Negros
Oriental who worked since July 2013;

31. Respondent CENTRAL AZUCARERA DE BAIS, INC. (“CAB”

for brevity) is a corporation duly organized and existing under
and by virtue of the laws of the Philippines with business address
at Brgy. Calasga-an, Bais City, Negros Oriental, Philippines;

32. All the Complainants may be served with notices, orders and
other legal processes of this Honorable Commission at the office
address of the undersigned counsel.

STATEMENT AND NATURE OF THE CASE

33. This is originally a complaint for illegal dismissal with backwages,

non-payment of holiday pay and service incentive leave. The
complaint also seeks the payment of separation pay in lieu of
reinstatement, damages, attorney’s fees, and other relief.

34. No amicable settlement was reached between the Complainant-

Appellants and Respondent-Appellees hence, they were required
to submit their respective position papers. After the submission of
their position papers and appropriate replies thereto, the case was
submitted for resolution.

35. On 30 September 2021 a DECISION was issued by Honorable

Labor Arbiter Leo N. Montenegro, in favor of Respondent-
Appellee and against Complainant-Appellant, dismissing the case
for 21 complainants for forum shopping and the remaining 9
complainants for insufficiency of evidence. A copy of the decision
is hereto attached as “ANNEX A”.

36. Complainant-Appellants were hired as stevedores in Respondent-

Appellee CAB’s factory in Brgy. Calasga-an, Bais City, and bodega
in Brgy. Luca, Tanjay City from Monday to Saturday.

Complainants, Ricardo M. Balnig, Godofredo Catacutan, Jr., Rodel

C. Torres and Rosalio C. Jemina were working in the Raw Sugar
Bodega in Main Plant in CAB’s factory in Brgy. Calasga-an, Bais

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 City. In some days, Complainant-Appellants, together with some
others, would help load and unload fifty kilos (50 kls.) of sacks of
sugar in the factory whose shift would start at 8 o’clock in the
morning until 5 o’clock in the afternoon. They were paid 366/day
from Monday to Saturday. They were illegally dismissed by the
Respondent-Appellee last February 28, 2020, when they were told
by their supervisor, EDWIN DELA ROSA not to go back to work,
without any notice to explain nor a notice of termination. That 9 of
their co-workers were paid separation pay while the four (4) of
them were not. An affidavit of two of their co-workers, ALFREDO
VELGA who narrated that he was given P127,000 for his 30 years
in service and ANTONIO VELGA said he was paid P100,074
separation pay for his 26 years of service. There affidavits were
attached to the position paper which was not denied by the
Respondent-Appellee and were not appreciated by the Honorable
Labor Arbiter.

Complainants-Appellants, Paquito M. Reyes and his 25 other co-

workers, were also regular stevedores assigned in Raw Sugar
Bodega in Luka, Tanjay City. They were paid P1.66 per sack and
their weekly wage is determined on the numbers of sacks they
bagged and haul during the week. They worked from 8 o’clock in
the morning until 5 o’clock in the afternoon. Unfortunately, last
February 28, 2020, their supervisor a certain “NICANOR” told
them that the management would only retain 32 workers out of 90
workers. They were not given any notice to explain nor a notice of
termination.

37. When working, a representative of the Respondent-appellee

would supervise the complainant-Appellants in making sure they
come in on time and leave work on time;

38. When the Respondent-Appellee submitted its position paper they

raised the defense of FORUM SHOPPING on the 21 complainants-
appellees. However, they made a supplemental affidavit that they
manifested that they changed Atty. Arcide and hired the
undersigned to pursue their cause. In fact, these 21 complainants
were not included in the position paper and memorandum of
appeal of Atty. ARCIDE in RAB VII-10-0067-20-D.

TIMELINESS OF THE APPEAL

39. Complainant-Appellants received the decision of the Labor

Arbiter dated 30 September 2021 dismissing the complaint for
forum shopping and insufficiency of evidence on 18 October 2021.
Pursuant to the 2011 NLRC Rules of Procedure, complainant-
appellants have ten (10) days from receipt of the decision within

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 which to file this appeal. Counting ten (10) days from said date,
the last day of filing a memorandum of appeal is 28 October, 2021.
Hence, the filing of this memorandum, having been filed on 26
October, 2021 is within the reglementary period to file an appeal.

GROUNDS FOR THE APPEAL/ASSIGNMENT OF ERRORS

I. WITH DUE RESPECT, THE HONORABLE LABOR ARBITER

COMMITTED GRAVE ABUSE OF DISCRETION AND SERIOUS
ERRORS IN LAW AND IN FACT WHEN IT DISMISSED THE
COMPLAINT ON THE GROUND THAT COMPLAINANT-
APPELLANTS FAILED TO ATTACH EVIDENCE OF THEIR
EMPLOYMENT WITH THE RESPONDENT;

II. THE HONORABLE LABOR ARBITER GRAVELY ABUSED ITS

DISCRETION WHEN IT DID NOT TAKE INTO
CONSIDERATION THE FACT THAT COMPLAINANT-
APPELLANTS SUBMITTED THEIR AFFIDAVITS AND
AFFIDAVITS OF THEIR WITNESSES IN SUPPORT OF THEIR
POSITION PAPER;

III.THE HONORABLE LABOR ARBITER GRAVELY ABUSED ITS

DISCRETION WHEN IT DID NOT AWARD THE MONEY
CLAIMS, BACKWAGES, DAMAGES AND OTHER CLAIMS OF
COMPLAINANT-APPELLANTS.

IV. THE HONORABLE LABOR ARBITER GRAVELY ABUSED ITS

DISCRETION WHEN IT DISMISS THE COMPLAINT OF 21
COMPLAINANTS ON THE GROUND OF FORUM SHOPPING.

ARGUMENTS AND DISCUSSIONS

I. THE HONORABLE LABOR ARBITER GRAVELY ERRED WHEN

IT DISMISSED THE COMPLAINT FOR “INSUFFICIENCY OF
EVIDENCE”

40. It is most respectfully submitted that the Honorable Labor Arbiter

erred in dismissing the complaint because of the failure of
complainant-appellants to submit evidence of their employer-
employee relationship with the Respondent-Appellee.
Complainant-appellants already mentioned in their Position Paper
that it was the Respondent-Appellee, who hired them to work as
stevedores. When they commenced their work, they were not
given any contract of employment by the Respondent-Appellee.
Complainant-Appellants should not be faulted for their
employer’s failure to issue contracts or other proof of their

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 employment. Otherwise, we would be left in a situation where
employers would be absolved from their obligations to their
workers simply by not issuing documents as proof of
employment.

41. Respondent-Appellee on its position paper, alleged that

Complainant-Appellants were not terminated for the reason that
THEY WERE NOT EMPLOYEES OF RESPONDENT-APPELLEE
IN THE FIRST PLACE and only considered them stevedores. This
claim is ridiculous. The circumstances of the case clearly manifest
that complainant-appellants were regular employees of
respondent-appellee;

THE COMPLAINANT-APPELLANTS WERE REGULAR

EMPLOYEES

42. Article 295 (280) of the Labor Code defines regular employees as
(1) those who are engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the
employer, and (2) those who have rendered at least one year of
service, whether continuous or broken, with respect to the activity
in which they are employed;

43. Herein Complainant-Appellants as laborers in the plant premises

were performing activities that were necessary and desirable in
the usual business of the employer. It is worthy to note that
complainant-appellants were tasked as baggers of raw sugar and
sometimes do the loading and unloading of sacks containing raw
sugar;

44. Respondent-Appellee, CENTRAL AZUCARERA DE BAIS, is a

business entity engaged in the production of sugar and in the
milling of sugarcane sold by different sugarcane planters in the
various sugarcane plantation in Negros Oriental. In the absence of
laborers performing activities such as bagging the raw and
refined sugar and loading and unloading the same to the trucks
for transport, the business operation of the respondent would be
greatly affected if not grind to a halt;

45. Suffice to say, complainant-appellants perform activities necessary

and desirable to the usual business of the employer;

46. Moreover, Complainant-Appellants were allowed to work for

several years, some of them even rendered more than twenty
years (20) of service for the Respondent Company. This clearly
complies with another requirement by law that a worker must

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 have at least rendered one year of service, whether continuous or
broken, with respect to the activity in which they are employed to
be considered a regular employee;

47. The foregoing, buttressed the fact that they were regular
employees entitled with security of tenure and all the labor
standards provided by law and can only be validly dismissed in
the presence of just or authorized cause provided by law, which,
in this case, are obviously absent and is contrary to what the
respondent-appellee stated in its Position Paper;

48. Complainant-Appellants hereby declare that they were regular

employees who perform work that are necessary and desirable to
the usual business of the employer and they have been made to
work for several years for the Respondent such that the refusal by
the respondent in letting the Complainants report to work without
proper explanation, without just or authorized cause and valid
reasons is glaring manifestations of illegal dismissal.

II. THE HONORABLE LABOR ARBITER GRAVELY ERRED WHEN

IT DISMISSED THE COMPLAINT BECAUSE ALLEGEDLY
COMPLAINANT-APPELLANTS WERE UNABLE TO SHOW OR
PRESENT PROOF AS TO WHO HIRED THEM, WHO
CONTROLLED THEIR WORK, WHO SUPERVISED THEIR
WORK, WHO DETERMINED THEIR ATTENDANCE, WHO
DETERMINED THEIR OUTPUT, AND OTHER ACTS OF
SUPERVISION OVER THEIR WORK

49. Complainants were hired by the Respondent through the latter’s

representatives. Complainants worked from 8:00 o’clock in the
morning until 5:00 o’clock in the afternoon. As evidence of their
employment, they were registered with the Social Security System
and Respondent were paying the SSS contributions of the
complainants. In their position paper, complainants attached their
SSS identification cards. Respondent also issued payslips in favor
of the Complainants and the same are also attached in the Position
Paper submitted by the Complainants.

50. In the exercise of their work, complainants were supervised by a

representative of the Respondent. In fact, complainants cannot
leave their work until it was 5:00 o’clock in the afternoon. As to the
question of who exercised control over the work of the
complainants, it was clearly the Respondent who exercised control
over the work of the complainants.

ON THE ALLEGATION THAT RESPONDENT

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 DID NOT HIRE THE COMPLAINANTS

51. Respondent also alleged in its position paper that it did not
individually select and hire the complainants. That they presented
themselves to respondent to help out bagging and loading the
sugar;

52. This allegation is outrageous. Even an unlettered man would have

known that you cannot possibly work within the premises of the
Plant if you are not a hired worker of respondent and you cannot
just simply go there and present yourself to work and eventually
receive a compensation. In fact, Complainants presented as part
of their documentary evidence attached in their position paper,
their payslips and identification cards issued by the
Respondent. These are clear pieces evidence that respondent
hired the complainants and were part of the workforce of the
Respondent Company;

THERE WAS POWER TO CONTROL

53. The complainants were under the control and supervision of the
Respondent employer such that they were under the direct
supervision of a certain “ Edwin Dela Rosa” and “Nicanor
Mueda” representing the management of herein respondent acting
as warehouse manager and warehouse supervisor respectively;

54. Complainants when at work could not possibly be allowed to

leave their job at any time as they please, nor they can just load the
bags of sugar in any way as they please, how many and how long
as they please. Their supervisor and warehouse manager in the
person of Edwin Dela Rosa and Nicanor Mueda were there to
make sure that the complainants’ work was done according to the
standard of the company’s needs and rules. These alone are clear
indications that there was power to control;

55. Complainants could naturally be expected to observe certain

rules and requirements and Respondent would necessarily
exercise some degree of control as to how the complainants should
perform their jobs;

56. Moreover, It is safe to aver that Complainants would only

leave the workplace only after they had finished loading and
unloading the bags of sugar intended for the day’s task;

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57. Further, in (RAMIRO LIM & SONS AGRICULTURAL CO.,
INC. V. GUILARAN (G.R. No. 221967, February 06, 2019), the
Supreme Court declared that “ since Complainants performed
their tasks at respondent’s workplace, respondent through his
agents could easily exercise control and supervision over the
former. “Accordingly, whether or not David actually exercised
this right or power to control is beside the point as the law simply
requires the existence of this power to control or, as in this case,
the existence of the right and opportunity to control and supervise
xxxx.”;

58. The discussions above are clear indications to support the fact
that Respondent exercised control over the Complainants;

COMPLAINANT-APPELLANTS
WERE ILLEGALLY DISMISSED

59. Under the Labor Code, in cases of regular employment, the

employer shall not terminate the services of an employee except
for a just or authorized cause. Otherwise, the employee
voluntarily resigns himself.

60. In a list of cases promulgated by the Supreme Court, resignation

must be a “voluntary act”, and that the employee must have
knowingly and voluntarily dissociate himself from his
employment for his own personal reasons.

61. Otherwise, constructive dismissal exists if “there is cessation of

work because ‘continued employment is rendered impossible,
unreasonable or unlikely, as an offer involving a demotion in rank
or a diminution in pay’ and other benefits. Aptly called a dismissal
in disguise or an act amounting to dismissal but made to appear as
if it were not, constructive dismissal may, likewise, exist if an act
of clear discrimination, insensibility, or disdain by an employer
becomes so unbearable on the part of the employee that it could
foreclose any choice by him except to forego his continued
employment.”

62. In the present case, the Respondent claimed in their Manifestation

with Offer dated November 16, 2020 that Complainants were
“welcome back to work anytime under the same circumstances
before they stopped,” and made it seem that the Complainants
abandoned their work.

63. With all due respect, the Respondent’s actions spoke of utter
maliciousness.

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64. Furthermore, the Respondent did not communicate any reason
that may suggest it was trying to cut business losses and prevent
redundancy. If the Respondent sincerely wanted the
Complainants to work uninterruptedly in the company, it would
have devised another work arrangement favorable to both parties.

65. To iterate, Complainants were purely regular employees whose

work was necessarily engaged in the core business activities of the
Respondent Central Azucarera de Bais, Inc.

66. As exhaustively discussed above, the Respondent could not have

its cake and eat it too. It effectively brought conditions impossible
for the Complainants to work and had the gall to claim they were
not terminated and worse, invited the Complainants back, when,
in the first place, they have no work to go back to. In the disguise
of being amicable, the Respondent insensibly offered an unfeasible
compromise which the Complainants, even if they wanted to,
cannot accept. Hence, Complainants were constructively
dismissed.

III. COMPLAINANTS-APPELLANTS SUBMITTED AND FILED

THEIR AFFIDAVITS AND AFFIDAVIT OF THEIR WITNESSES
ATTACHED TO THE POSITION PAPER OF COMPLAINANTS

67. In the Honorable Labor Arbiter’s Decision dated 30 September

2021, it declared that the position Paper of Complainants is not
supported by a single affidavit and that the mere position paper is
not tantamount to evidence.

68. With all due respect, the complainants have attached their
affidavits in their position paper. They also attached the affidavits
of their two co-workers who have been paid their separation pay.

69. From the foregoing affidavits of witnesses alone, the Honorable

Labor Arbiter should have took notice of the fact that the
Respondent-Appellee is selective in giving separation pay to its
dismissed employees. The Respondent-Appellee never denied
these allegations made by the witnesses in their position paper.

IV. COMPLAINANTS ARE ENTITLED TO REINSTATEMENT,

BACKWAGES, AND/OR SEPARATION PAY, SERVICE
INCENTIVE LEAVE, 13TH MONTH PAY, MORAL AND
EXEMPLARY AND ACTUAL DAMAGES AND ATTORNEY’S
FEES

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 COMPLAINANTS ARE ENTITLED TO REINSTATEMENT,
BACKWAGES AND/OR SEPARATION PAY.

70. RESPONDENT can be compelled to reinstate COMPLAINANTS

who were illegally dismissed from employment. Art. 279 of the
Labor Code expressly provides:

“Art. 279. Security of tenure. – In cases of regular employment, the

employer shall not terminate the services of an employee except for a
just cause or when authorized by this Title. An employee who is
unjustly dismissed from work shall be entitled to reinstatement
without loss of seniority rights and other privileges and to his full
backwages, inclusive of allowances, and to his other benefits or their
monetary equivalent computed from the time his compensation was
withheld from him up to the time of his actual reinstatement. (As
amended by Section 34, Republic Act No. 6715, March 21, 1989.)”

71. Considering however, that strained relations has already set in

between the RESPONDENT and COMPLAINANTS, the same
may no longer be desirable or feasible. Accordingly, separation
pay instead of reinstatement is the most acceptable alternative
thereto.

72. An illegally dismissed employee is entitled to (1) either

reinstatement, if viable, or separation pay if reinstatement is no
longer viable, and (2) backwages. [TORILLO VS. LEOGARDO,
G.R. No. 77205, May 27 1991]

73. In the case of REYES VS. RP GUARDIAN SECURITY AGENCY,

INC. the Supreme Court citing the case of Aliling v. Feliciano , the
Court explained:

“The normal consequences of respondent’s illegal dismissal, then, are

reinstatement without loss of seniority rights, and payment of backwages
computed from the time co mpensation was withheld up to the date of
actual reinstatement. Where reinstatement is no longer viable as an
option, separation pay equivalent to one (1) month salary for every year
of service should be awarded as an alternative. The payment of
separation pay is in addition to payment of backwages.”

74. Thus, applying the above cited cases, as a result of

RESPONDENTS’s illegal dismissal of COMPLAINANTS, the
latter should be reinstated and since reinstatement is no longer
viable, the latter must be entitled to separation pay and
backwages.

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 COMPLAINANTS ARE ENTITLED TO DAMAGES.

75. In the case of Garcia vs. NLRC, the Supreme Court held that
moral damages are recoverable only where the dismissal of the
employee was attended by bad faith or fraud or constituted an act
oppressive to labor, or was done in a manner contrary to morals,
good customs or public policy. And considering that the acts of
respondent were part of his grand design to deprive the
complainants of their right to security of tenure and other labor
standards provided by law, which is infirmed with bad faith and
malice and as a result, complainants have suffered serious
anxiety, sleepless nights and mental anguish brought about by
respondent’s actions, moral damages is proper.

76. Exemplary damages in dismissal cases may be awarded only if the

dismissal was effected in a wanton, oppressive or malevolent
manner. COMPLAINANTS’ dismissal was attended by the
grounds enumerated above. There are reasons, therefore, to award
moral and exemplary damages. A dismissed employee is entitled
to moral and exemplary damages in case of bad faith or malice on
the part of the employer in terminating his services.

77. Given the manner by which the RESPONDENT has disregarded

COMPLAINANTS’ right to property, that is their employment,
where they only make both ends meet with their meager daily
wage, RESPONDENT acted in bad faith and with malice when
without any cause or proper notice, it made the COMPLAINANTS
lose their job.

78. Consequently, COMPLAINANT has no other choice but to seek

remedy before DOLE-SENA and the NLRC in Dumaguete City,
which caused them to spend transportation, photocopying, meals
and other necessary expenses, in order to vindicate the serious
wrong committed against them by the RESPONDENT.

79. In San Miguel Properties vs Gucaban (G.R. No. 153982, July 18,
2011), the Supreme Court held that “moral damages are awarded
in termination cases where the employees dismissal was attended
by bad faith, malice or fraud, or where it constitutes an act
oppressive to labor, or where it was done in a manner contrary to
morals, good customs or public policy.” In the case at bar, their
dismissal constitutes an act oppressive to labor when respondent
through his representative, unilaterally and without valid
grounds, dismissed the complainants and ordered them to look
for another job because there is no more work waiting for them
inside the plant premises. These acts of the respondent are willful

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 and caused loss and injury to the complainants in a manner that
contravene the public policy and constitutional mandate to afford
full protection to labor. Hence, it falls within the ambit of Article
21 of the New Civil Code where it states that “Any person who
willfully causes loss or injury to another in a manner that is
contrary to morals, good customs, or public policy shall
compensate the latter for the damage.” Having intentionally and
maliciously dismissed herein complainants without just and
authorize causes and without due process of law, respondent is
liable for moral damages.

COMPLAINANTS ARE ENTITLED TO ATTORNEY’S FEES.

80. Because the complainants were illegally dismissed, an award of

attorney’s fees is only proper. This is a natural consequence that
“attorney’s fees may be awarded only when the employee is illegally
dismissed in bad faith and is compelled to litigate or incur expenses to
protect his rights by reason of the unjustified acts of his employer.
(Pascua v. NLRC, G.R. No.123518, March 13, 1998, 287 SCRA 554, 58
Pepsi Cola Products Philippines. vs Emmanuel Santos, G.R. No. 165968
April 14, 2008.)

81. COMPLAINANTS-APPELLANTS were compelled to hire the services

of counsel in order to protect their interests as they were illegally
dismissed by RESPONDENT. Hence, Attorney’s fee in favour to the
Complainants is proper in the amount of (10%) ten percent of the actual
monetary award.

V. THE HONORABLE LABOR ARBITER GRAVELY ABUSED ITS

DISCRETION WHEN IT DISMISSED THE COMPLAINT OF 21
COMPLAINANTS ON THE GROUND OF FORUM SHOPPING.

82. Forum shopping is the act of litigants who repetitively avail themselves
of multiple judicial remedies in different fora, simultaneously or
successively, all substantially founded on the same transactions and the
same essential facts and circumstances, and raising substantially similar
issues either pending in or already resolved adversely by some other court;
or for the purpose of increasing their chances of obtaining a favorable
decision, if not in one court, then in another.

83. It was different in this case, the 21 complainants manifested that they
are changing their lawyer in their reply of the position paper of the
respondent-appellee and in fact the 21 complainants were not also
included in the position paper and memorandum of appeal filed by Atty.
Arcide in RAB VII-10-0067-20-D. Thus there was no forum shopping since
it was filed in the same court and the court should have took judicial notice
and could have order for its amendments rather than dismissing their
complaints on the ground of forum shopping.

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 PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of

this Honorable Commission that:

1. The case be resolved on the merits and not of mere technicalities;

2. An order be issued NULLIFYING and SETTING ASIDE the Decision

of the Honorable Labor Arbiter dated 30 September 2021 and in lieu
thereof, an order be issued declaring the complainant-APPELLANTS
illegally dismissed and entitled to all their monetary claims such as
their separation pay, backwages, including moral and exemplary
damages and all other claims as contained in the Complainants-
Appellants’ Position Paper;

Such other relief as may be deemed just and equitable under the
premises is likewise prayed for.

Respectfully submitted.

C% Legal Office, Provincial Capitol, Dumaguete City, Negros

Oriental, 25 October, 2021.

ATTY. LOUIE A. RASTICA, CPA

Counsel for the Complainant-Appellants
Roll No. 53084
PTR No. 1020601A-12/29/2020, Dgte. City
IBP Receipt pending issuance from IBP
MCLE Compliance Cert. No. VI-0009237

EXPLANATION

Due to the lack of personnel to effect personal service at

Respondent’s office, copy of this pleading was served unto the Respondent
and their counsel via registered mail, with appropriate registry receipt
issued by the Post Office attached below.

ATTY. LOUIE A. RASTICA

Copy furnished:

ATTY. NEQUITO ALEJANDRO B. ALCANTARA

Bo. 46 FOREX Bldg., San Jose St.,
Dumaguete City, Negros Oriental

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CENTRAL AZUCARERA DE BAIS INC.
Calasga-an, Bais City, Negros Oriental

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