Republic of the Philippines Department of Labor and Employment : NATIONAL LABOR RELATIONS COMMISSION 2 National Capital Region Arbitration Branch Quezon City JAMES RUDOLF A. MONES, ET AL, Complainants-Appellees NLRC LAC NO. 09-003051-17 NLRC NCR CASE NO. 12-15523-16 - versus - LIBERTY FLOUR MILLS INC. ET AL, Respondents-Appellant x MOTION FOR RECONSIDERATION (RE: Decision dated 22 December, 2017) Respondent-appellant KAAKBAY SA KINABUKASAN LABOR SERVICE COOPERATIVE (“KSKLSC” for brevity), unto this Honorable Commission, most respectfully submits this Motion for Reconsideration and avers that: PREFATORY STATEMENT “In the present case, the petitioners were not dismissed, either legally or illegally; the petitioners abandoned their jobs. They failed to return to work despite the respondent's directive requiring them to do so. There is, thus, no room for the award of financial assistance in the form of separation pay. To sustain the claim for separation, pay under the circumstances herein established would be to reward the petitioners for abandoning their work. As we emphasized in the case of A Prime Security Services, Inc. v. NLRC, social justice is extended only to those who deserve its compassion.” (Emphasis Ours) TIMELINESS OF THE MOTION Respondent-appellant, received a copy of the December 22, 2017 Decision 1 RODOLFO GABUAY et al. vs. OVERSEA PAPER SUPPLY, INC. and/or TAN LIAN SENG, respondents. G.R. No, 148837, August 13, 2004of the Honorable Fourth Devision on February 6, 2018 dismissing the respondent-appellant’s Partial Appeal. Finding this case impressed with merit, respondent-appellant respectfully submits this Motion for Reconsideration within thee prescriptive period of ten (10) days or until February 16, 2018. Considering that February 16, 2018 is a non-working holiday, Respondent- appellant has until February 19, 2018. Hence this Motion for Reconsideration is timely filed on February 19, 2018. GROUNDS RELIED UPON WITH ALL DUE RESPECT, RESPONDENT- APPELLANT KSKLSC MOVES FOR THE RECONSIDERATION OF — AFOREMENTIONED DECISION BASED ON PALPABLE OR PATENT ERRORS. DISCUSSION/ ARGUMENTS 1. THERE WAS JUST CAUSE EXISTED FOR THE TERMINATION OF COMPLAINANT-APPELLANTS’ SERVICES Il. RESPONDENT-APPELLANT KSKLSC DULY OBSERVED THE DUE PROCESS REQUIRED BY LAW ‘Taking into consideration that the issues are materially intertwined and intricately related to each other, said issues are herein discussed jointly as. follows: Contrary to the misrepresentation of complainants in the arbitral proceeding, complainants were not illegally dismissed by herein Respondent KSKLSC. At the onset, Respondent KSKLSC clarified that it has no intention to terminate the employment of herein Complainants. In fact, it was also culled from the Decision that apart from Complainants’ allegation that they were illegally dismissed on December 19, 2016 when they were informed not to report for work anymore, they did not name the particular person who dismissed them, neither was it shown that he/she has the authority to dismiss complainants. To give emphasis, Complainants who failed to report to work without permission from their Member-Supervisor, Ricardo Mendoza beginning December 19, 2016. Complainants were afforded the due process specifically the “Twin Notice Requirement”. The observance of Due Process and its evidence were duly provided by herein Respondent-KSKLSC in its pleading. As discussed, as part of Respondent-KSKLSC’s Due Process among its members, herein Respondent-KSKLSC issued the Notice of Invitation to Complainants on December 23, 2016 in which the Complainants refused to receive. A Notice of Conference was likewise sent to the Complainants on January 5, 2017 and on January 12, 2017. All these Notices pertains to the Complainants deliberate and willful refusal to report for work and requiring them to submit their corresponding answer within the period prescribe by law. But none of these notices were answered. These notices were refused to receive by herein Complainants prompting herein Respondent KSKLSC to send the copiesindividually to the complainants last known address. Thus, the fact that Notice for Invitation were all dated December 23, 2016 should not be construed as mere afterthought to give semblance of legality but because of the refusal of herein complainant-appellants to receive the notices which were originally served to them via personal service During the series of conferences, respondent-appellant clarified that herein complainant-appellants may return as a regular-employce of KSKLSC to its client, LFM to which they refused. Contrary to what complainant-appeliants are trying to insinuate, their dismissal was never a form retaliation from the complainant they filed. In fact, among the fifteen (15) complainants, there were ten (10) member-employees who return to their work and have continued working with KSKLSC even after filing the case. It was only on January 17, 2017, that Respondent KSKLSC decided to terminate the Complainants’ employment. In its Notice of Decision issued on January 17, 2017, Respondent KSKLSC indicated therein all the circumstances pertaining to the Complainants deliberate refusal to work with Respondent KSKLSC. Thus, when the Notice of Decision was issued on January 17, 2017, respondent-KSKLSC has no other option but to severe the employment of its erring member-employees, in this case the complainant-appellants. Respondent- KSKLSC is constraint to issue the notice of decision dismissing herein complainant-appeliants due to their deliberate refusal to report for work. Such willful and deliberate refusal to return to work without having to explain the reason for their refusal constitutes misconduct or improper behavior that an employer could subject its employee with corresponding disciplinary measure. In a long line of cases, the Court held that a valid and lawful dismissal of an employee can be made by the employer provided that both of the procedural and substantive due process were observed. Procedural due process requires the observance of the so called “Twin Notice Requirements” where the employee is given due opportunity to explain their side prior the intended disciplinary measure. While the substantive due process prohibits the termination of the employee except for a just cause or when authorized by the Labor Code in ‘Termination of Employment. While every worker has its right to security of tenure, the management has also the prerogative to dismiss its employee. Provided that it should be exercise without abuse of discretion, Security of tenure is a constitutionally guaranteed right of an employee. However, it does not mean perpetual employment for the employee. 2 Similarly, the Court ruled in the case of Rodolfo Gabuay et al. v. Oversea Paper Supply and/or Tan Lian Seng that the payment of Separation of Pay in the form of Financial Assistance should not be given to those employees who were not dismissed, either legally or illegally specially those who abandoned their jobs. ‘The Court goes further in saying that no room for the award of financial assistance in the form of separation pay. To su stain the claim for separation pay under the circumstances herein established would be to reward the petitioners for abandoning their work. “Bven after the petitioners received notices from the respondent corporation requiring them to report for 2 Phil. Vilage Hotel v. NLRC G.R. No, 105033 February 28, 1994work and to explain their unauthorized absences and failure to submit their updated bio-data, they still failed to report for work. It can then be inferred that the petitioners had abandoned their work. Indeed, the factors considered for finding a valid abandonment are present in the case at bar: the petitioners failure to report for work or absence was without valid or justifiable cause, and their refusal to report for work notwithstanding their receipt of letters requiring them to return to work, show their clear intention to sever the employer-employee relationship. Consistent with the finding that the petitioners abandoned their work, the award of financial assistance in the form of separation pay should be deleted. Separation pay is defined as the amount that an employee receives at the time of his severance and is designed to provide the employee with the wherewithal during the period that he is looking for another employment. (Emphasis Ours) The Decision of this Honorable Division, reinstating complainant- appellants with full back wages is clearly a palpable error on its part as respondent-appellant KSKLSC follows the required procedural due process to those erring employees, complainant-appellants. PRAYER WHEREFORE, premises considered, it is most respectfully prayed of the Honorable Commission to RECONSIDER its 22 December 2017 Decision and a new one be issued VACATING and SETTING ASIDE the Decision of the Honorable Labor Arbiter. General reliefs are likewise prayed for. February 19, 2017, Quezon City, Philippines IB, GLORIA ‘Respondent-Appellant, KSKLSC 70-B Starmobile Building Kapitolyo Pasig City Tel No.: 637-7216 Roll No. 69656 Lifetime IBP No. 0021766 Bulacan PTR No. 3860321, 01/05/17 Pasig City Admitted to the Bar 2017 3 Supra Note 1‘The following received a copy of the foregoing pleading: JAMES RUDOLF MONEZ ET AL Complainants LIBERTY FLOUR MILLS INC. Respondent ASIAPRO MULTI-PURPOSE COOPERATIVE RespondentA EXPLANATION Copies of the foregoing were filed and served by registered post due to lack of personnel, and also with the offices of the parties concerned. \CELI B. GLORIA ‘The following received a copy of the foregoing pleading: JAMES RUDOLF MONEZ ET AL Complainants Ores gecacer NO- [8L1 64 LIBERTY FLOUR MILLS INC. Respondent orricam ecu NO (BLL GAY ASIAPRO MULTI-PURPOSE COOPERATIVE Respondent QFFCIM. QUT KO [841 6Q0~ Nerce Oc —[eGl 642,