REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
Manila

________ DIVISION

CEMTRANS SERVICES, INC.,

Petitioner,

-versus- CA GR. SP NO. ___________________

JOSE ELWARD LATOZA ELIPIO,

JESUS J. NAPAY AND NLRC,
Respondents.
x-------------------------------------------x

PETITION FOR CERTIORARI

Petitioner, CEMTRANS SERVICES, INC., through the
undersigned counsel, most humbly and respectfully submits this
Petition for the consideration of the Honorable Court of Appeals,
and in support thereof avers THAT:

I.
PREFATORY STATEMENT

While the Constitution affords full protection to labor, but the

policy is not to be blindly followed at the expense of capital. Always,
the interests of both sides must be balanced in light of the evidence
adduced and the peculiar circumstances surrounding each case.1

II.
NATURE AND TIMELINESS OF PETITION

1. This is a Petition for Certiorari under Rule 65 of the Rules

of Court seeking to nullify/set aside the Decision and Resolution
dated July 29, 2022 and October 28, 2022 of the National Labor
Relations Commission, Third Division, (hereinafter referred to as
the “Public Respondent”) in the case entitled as JESUS NAPAY, ET.
AL. vs. CEMTRANS, ET. AL. and docketed as NLRC LAC NO.04-
001526-22.
2. The Decision dated July 29, 2022 was received by the
petitioner on September 27, 2022, the dispositive portion of the
Decision reads as follows:

1
Hotel Enterprises of The Philippines, Inc. (HEPI), owner of Hyatt Regency Manila vs.Samahan ng mga
Manggagawa sa Hyatt- National Union of Workers in the Hotel and restaurant and Allied Industries,
G.R. No. 165756, June 5, 2009.
 “WHEREFORE, the Decision dated February 24, 2022 of
Labor Arbiter Sherwin J. Casurao in NLRC Case No. 05-00870-21
is AFFIRMED with MODIFICATION to the extent that
complainants Jesus Jarabeho Napay and Jose Elward Latoza Elipio
are declared constructively dismissed from employment.
Consequently, respondents Cemtans Service, Inc. and/or Joanna
Jesh Transport are hereby ORDERED TO REINSTATE
complainants Jesus Jarabeho Napay and Jose Elward Latoza Elipio
to their former positions as bus inspectors, without loss of seniority
rights or diminution of benefits.

In addition, Cemtrans Services, Inc. and/or Joanna Jesh

Transport are hereby ORDERED TO PAY complainants Jesus
Jarabeho Napay and Jose Elward Latoza Elipio, each their
respective backwages computed from September 16, 2020 until the
date of complainant’s actual reinstatement.

For this purpose, respondents are hereby directed to submit a

report of compliance with the reinstatement aspect of this Decision
within ten (10) days from receipt hereof.

Moreover, the awards of 13th month pay, holiday pay, and

service incentive leave pay should be recomputed as follows:

1. COMPLAINANT JOSE ELWARD LATOZA ELIPIO

a. The award of 13th-month pay and service incentive

leave pay in favor of complainant Elipio is hereby
DELETED.
b. The award of regular holiday pay in favor of
complainant Elipio should be recomputed to cover only
regular holidays falling within the following periods, if
any: May 25, 2018 to August 14, 2018; August 31,
2018 to January 30, 2019; April 30 2019 to May 30,
2019; and June 15, 2019 to January 14, 2020.

The computation of the monetary award is attached to this

Decision.

2. COMPLAINANT JESUS JARABEHO NAPAY

a. The award of 13th-month pay and service incentive

leave pay in favor of complainant Napay should be
recomputed to cover the year 2018.
b. The award of regular holiday pay in favor of
complainant Elipio should be recomputed to cover only
regular holidays falling within the following periods, if
any: May 25, 2018 to July 30, 2019; August 31, 2019
to September 29, 2019; October 15, 2019 to November
14, 2019; and December 31, 2019 to March 16, 2020.
 Finally, the award of attorney’s fees equivalent to ten
percent (10%) of the judgment award should be adjusted
accordingly, in accordance with the modifications in this
Decision.

The rest of the Decision of the Labor Arbiter STAYS.

The Commission’s computation and examination unit

is hereby ordered to compute complainants’ respective
monetary awards. The computation will form an integral part
of this Decision.

SO ORDERED.”
(Bold italics ours)
xx x x x x x x x

3. On October 07, 2022, petitioner thru counsel filed a Motion

for Reconsideration with Motion to Admit Additional Evidence.

4. On November 08, 2022, respondents thru counsel received

a copy of the Resolution dated October 28, 2022, the dispositive
portion of which reads:

“WHEREFORE, the instant motion for reconsideration

is DENIED for lack of merit.
SO ORDERED. “
(Bold italics ours)

5. Duplicate Original Copies of the Decision and dated July

29, 2022 and Resolution dated October 28, 2022 are attached and
made integral parts hereof as Annexes “A” and “B” hereof.

6. The Decision dated July 29, 2022 of the Public

Respondent, dismissed petitioner’s appeal and affirmed with
Modification the assailed Decision of Labor Arbiter Sherwin J.
Casurao, even when the same contravenes existing laws and
jurisprudence obtaining herein, not only constitutes reversible
errors, but was clearly made in excess of jurisdiction and with
grave abuse of discretion amounting to lack or excess of
jurisdiction.

7. In the same vein, the Resolution dated October 28, 2022 of

the Public Respondent, denying petitioner’s Motion for
Reconsideration, constitutes an act in excess of its jurisdiction and
with grave abuse of discretion amounting to lack or excess of
jurisdiction correctable by certiorari.

8. Worthy to stress that a Petition for Certiorari under Rule

65 of the Rules of Court should be allowed when a court or tribunal
has acted without or in excess of its jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction and
there is no appeal, nor any plain, speedy, and adequate remedy in
the ordinary course of law.2 [J]udicial review of decisions of the
NLRC via petition for certiorari under Rule 65, as a general rule, is
confined only to issues of lack or excess of jurisdiction and grave
abuse of discretion on the part of the NLRC. The CA does not
assess and weigh the sufficiency of evidence upon which the LA
and the NLRC based their conclusions. The issue is limited to the
determination of whether or not the NLRC acted without or in
excess of its jurisdiction, or with grave abuse of discretion in
rendering the resolution, except if the findings of the NLRC are not
supported by substantial evidence.3 (Citation omitted and emphasis
ours)

9. In this connection, there is grave abuse of discretion

whenever, as in the instant case, a tribunal or court has acted in
an arbitrary manner which is so patent or gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law:

“Certiorari lies when a court has acted without or in

excess of jurisdiction or with grave abuse of discretion.
‘Without jurisdiction’ means that the court acted in
absolute want of jurisdiction. There is ‘excess of
jurisdiction’ where the court has jurisdiction but has
transcended the same or acted without any statutory
authority (Leung Ben vs. O’Brien, 38 Phil. 182; Salvador
Campos y Cia vs. Del Rosario, 41 Phil. 45). ‘Grave abuse
of discretion’ implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction
(Abad Santos vs. Province of Tarlac, 38 O.G. 83) or in other
words, where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to
amount to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in
contemplation of law. (Talavera-Luna vs. Nable, 38 O.G.
62).”4 [Emphasis supplied]

10. In view of the denial of petitioner’s Motion for

Reconsideration, petitioner was left with no any other plain,
speedy, and adequate remedy in the ordinary course of law
available to petitioner. Hence, this petition.

III.
THE PARTIES

2
Section 1, Rule 65 of the Rules of Court.
3
Anonas Construction and Industrial Supply Corp., et al. v. NLRC, et al., 590 Phil. 400 (2008).
4
Filinvest Credit Corporation vs. Intermediate Appellate Court, 166 SCRA 155, 163 (1988).
 11. Petitioner CEM TRANSPORT SERVICES INC. is a
corporation duly organized in accordance with the laws of the
Philippines and engaged in the business of “public transportation
with business address at 147 Sitio Crossing, Magsaysay Road,
Brgy. San Antonio, San Pedro 4023, Laguna (“CEMTRANS” for
brevity) and hereto represented by its Human Resources Manager,
RODRIGO OPENIANO, JR.

12. Private respondents JESUS J. NAPAY and JOSE

ELWARD L. ELIPIO are of legal age, Filipino and are represented
by their counsel ATTY. RENATO B. BORLASA- Legal Advocates
for Workers Interests (LAWIN), with office address at Room 206
JIAO Building No. 2 Timog Avenue, Quezon City 1100, where both
complainants may be served with notices, orders and judgment of
the Honorable Court. While Public Respondent NLRC Third
Division is impleaded by the reason of the assailed Decision and
Resolution and may be served with orders and decisions at Benlor
Building, NLRC, Quezon City.

IV.
STATEMENT OF FACTS OF THE CASE

The Arbitration Level

13. This case originally stemmed out from a complaint for

constructive dismissal with claims for non-payment/underpayment
of Over Time Pay, Non-Payment of 13th Month Pay, Non-Payment of
Service Incentive Leave Pay (SILP). Complainants also claim full
backwages moral and exemplary damages and attorney’s fees.

14. Private respondents Napay and Elipio were hired by the

petitioners as “Bus Conductors on September 1, 2009 and October
19, 2008, respectively. Sometime in 2011 both private respondents
were promoted to the position of bus inspectors.

15. On March 15, 2020, the President of the Republic of the

Philippines implemented the Enhanced Community Quarantine
(ECQ) Protocol due to the COVID-19 Pandemic. One of the effects of
the protocols was the suspension of all modes of transportation.
Like the rest of the bus operators, petitioner had no choice but to
comply with the protocols of the IATF, and rules and regulations of
the LTFRB. Only those given special permits will be allowed to
operate by the LTFRB under the consortium to be created by the
bus operators. Petitioners then joined the MEGA MANILA
CONSORTIUM (MMC).

16. On May 14, 2020, the LTFRB issued Memorandum

Circular 2020-19, which allowed only a single operator or area-
based operators who have consolidated operationally shall be
allowed or given special permits to operate after the lifting of the
ECQ/MECQ. Petitioner then joined the consortium of bus operators
MEGA MANILA CONSORTIUM (MMC) since respondent CEMTRANS
is not qualified as a single operator.

17. Further, under MC 2020-0195, the LTFRB prefers

operator with compliant units and with fleet management system
(Automatic Fare Collection System or AFCS for brevity) for cashless
transaction, to minimize exposure to COVID-19. This meant that
the services of bus conductors and inspectors will no longer be
utilized for the time being.

18. On May 27, 2020, the LTFRB issued two (2) special
permits to MMC under Resolution No. 65A and 67A, Series of 2020.
Copies of the Resolutions are attached as ANNEXES “D” and “E”
and their respective series.

19. By reason of these resolutions, the LTFRB allowed MMC

to operate a total of 333 units, to be divided among the MMC
members. By reason of these special permits, respondent and its
sister companies can now operate again after compliance with the
requirements of the LTFRB Memorandum Circulars and
Resolutions.

20. On several occasions, the MMC members had to meet,

discussed and comply with the requirements of the LTFRB. By late
June 2020, respondent and its sister companies were given special
permits for twenty (24) buses representing about 30% of all its
buses and were able to operate again under the new routes. Drivers
were the only employees allowed to work by the LTFRB. Conductors
were not initially allowed as the LTFRB wanted cashless
transactions. In fact, the LTFRB issued a Memorandum Circular to
effect the changes in the collection of passenger fares. This forced
the respondent to comply with the requirements of the LTFRB. As
result, most of the bus conductors of the bus operators were
affected by the changes being implemented by the LTFRB since
they could no longer utilized all their conductors and inspectors.

21. Despite the twenty (24) units granted by the LTFRB,

respondent and its sister companies were only operating with few
units due to lack of passengers and the buses had to wait for their
turns at the terminal together with the other members of
consortium.

22. Subsequently, petitioner sent notices for reporting to

private respondents. The first notices were both dated September 2,
20206

5
Attached as Annex C to the Petition is LTFRB MC 2020-19
6
Please see Annex 1 and 4 of the Petitioner’s Motion for Reconsideration with Motion to
Admit Additional Evidence, which is attached hereto as Annex R.
 23. On 22 September 2020, private respondents reported to
petitioner’s former HR Manager, Fernando Abasula, and were
informed of the situation that they will only be given three (3) days
duty schedule as stated in their respective memoranda 7. Petitioner
also issued their corresponding “OK FOR DUTY” slips but they both
refused to accept the Memo and the “OK FOR DUTY” slips8.

24. Subsequently, petitioner sent notices to private

respondents on three different dates for their refusal to accept their
duty assignments. Copies of these notices or memoranda dated
October 06, 15 and 26, 2020 are attached as Annexes “7” “8” “9”
“10” “11” and “12” to Petitioner’s Motion for Reconsideration with
Motion to Admit Additional Evidence, which is hereto attached as
Annex R hereof. All these notices, including the memoranda dated
September 2, 2020, were sent thru registered mail to the last
known address of the private respondents.

25. Despite not being terminated by petitioner as they were

the ones who refused to accept their duty assignments, private
respondents then filed a labor complaint for alleged constructive
dismissal with prayer for non-payment of overtime pay, non-
payment of holiday premium, non-payment of rest day premium,
non-payment of Service Incentive Leave, non-payment of 13th
month pay, payment of separation pay with claims moral and
exemplary damages and attorney’s fees.

26. Thereafter, the Labor Arbiter directed the herein parties to

submit their respective position papers. Petitioner failed to file their
position paper because the Order of the Labor Arbiter was served
upon a person who is not authorized to receive notices, letters,
summons, and legal processes.

27. Due to relaxation of the strict quarantine, petitioner has

required its personnel to report regularly to work and was able to
receive a copy of the Decision of Labor Sherwin Casurao dated
February 24, 2022 on March 25, 2022 (ANNEX “F). The dipositive
portion of which states:

“xxx…

WHEREFORE, premises are considered, judgment is

hereby rendered by this Labor Court DISMISSING the
complaint for constructive dismissal. Complainants JESUS
J. NAPAY and JOSE ELWARD L. ELIPIO are hereby
ordered to return to work to their previous position as BUS
INSPECTORS of respondents CEMTRANS SERVICES,
7
Please see Annex 2 and 5 of the Petitioner’s Motion for Reconsideration with Motion to
Admit Additional Evidence, which is attached hereto as Annex R.
8
Please see Annex 3 and 6 of the Petitioner’s Motion for Reconsideration with Motion to
Admit Additional Evidence, which is attached hereto as Annex R.
 INCORPORATED and/or JOANNAJESH/YOHANCE
INCORPORATED within 10 days from notice hereof and
for the said respondents to reinstate and/or accept them
within the same period under the same position without
loss of seniority rights and privileges, sans backwages.

…xxx”

Commission Level

28. Aggrieved, both parties appealed the Decision of the

Honorable Labor Arbiter. On April 04, 2022, petitioner filed a
Notice and Memorandum of Partial Appeal (ANNEX “G”)
accompanied by an “Urgent Motion for Reduction of Bond” (ANNEX
“H”). Although the Order of Payment Form (O.P.No.2022-03-
100157) was accomplished, petitioner failed to meet the cut-off
time for the bank payment with UCPB. The following day or on
April 5, 2022, petitioner accomplished the posting of the cash bond
in the amount of Php 30,690.00 under official receipt number
100157 and filed with the public respondent a “Manifestation with
Motion to Admit Appeal Fee and Cash Bond” (ANNEX “I”).

29. Private respondents on their part, also filed their

Memorandum of Partial Appeal dated March 22, 2022 (ANNEX
“J”). On April 11, 2022, petitioner received a copy of the private
respondents’ “Urgent Ex-Parte Motion” attached as ANNEX “K”.

30. On April 11, 2022, private respondents filed their

“Opposition/Comment” to the Petitioner’s Notice and Memorandum
of Partial Appeal with Reservation to Submit Additional Evidence
and Motion to Reduce Bond” (“L”).

31. On May 31, 2022, the public respondent issued an Order

Ordering the petitioners to post an additional bond in the amount
of Php 151, 318.05, within ten (10) days from receipt of said order
(ANNEX “M”). Petitioner complied and on June 21, 2022, petitioner
posted the additional bond of Php 151, 318.05 and on the same
date filed their “Manifestation with Motion to Admit the Balance of
the required Appeal Bond” (ANNEX “N”).

32. On June 28, 2022, petitioner filed a “Motion to Admit

Attached Documents Evidence” (ANNEX “O”) attaching proofs of
payment of benefits to private respondents and particularly
attaching copies of the check payment vouchers, petty cash
vouchers and checks, and ultimately praying for the admission of
said documents for the consideration of the Public Respondent.

33. In response private respondents filed an

Opposition/Comment (ANNEX “P”) dated July 19, 2022, which
was received by the petitioner last August 12, 2022. Petitioner filed
its Reply to private respondents Opposition/Comment dated July
19, 2022 (ANNEX “Q”).

34. Thereafter, the Public Respondent rendered the first

assailed Decision dated July 29, 2022 (Annex A hereof).

35. Petitioner filed their Motion for Reconsideration with

Motion to Admit Additional Evidence (ANNEX “R”) last October 7,
2022, praying for the admission of the notices issued and served to
the private respondents.

36. On October 14, 2022, private respondents through

counsel filed again their “Comment/Opposition” (ANNEX “S”) to
the petitioners Motion for Reconsideration with Motion to Admit
Additional Evidence.

37. On October 28, 2022, the Public Respondent denied

petitioner Motion for Reconsideration in a Resolution (Annex B
hereof) which was received by petitioner on November 8, 2022.
Hence, this petition.

VI.
ISSUES TO BE RESOLVED

A. WHETHER OR NOT THE PUBLIC RESPONDENT GRAVELY

ABUSED ITS DISCRETION TANTAMOUNT TO LACK OR IN
EXCESS OF JURISDICTION WHEN IT REVERSED THE
DECISION OF THE LABOR ARBITER WHICH DISMISSED
THE COMPLAINT FOR CONSTRUCTIVE DISMISSAL.

B. WHETHER OR NOT THE PUBLIC RESPONDENT GRAVELY

ABUSED ITS DISCRETION TANTAMOUNT TO LACK OR IN
EXCESS OF JURISDICTION IN DENYING PETITIONER’S
MOTION FOR RECONSIDERATION WITH MOTION TO
ADMIT ADDITIONAL EVIDENCE.

C. WHETHER OR NOT THE PUBLIC RESPONDENT GRAVELY

ABUSED ITS DISCRETION TANTAMOUNT TO LACK OR IN
EXCESS OF JURISDICTION WHEN IT MERELY
RECOMPUTED THE HOLIDAY PAY FOR PRIVATE
RESPONDENTS AND THE AWARD OF 13TH MONTH PAY
AND SILP FOR RESPONDENT NAPAY

D. WHETHER OR NOT THE PUBLIC RESPONDENT GRAVELY

ABUSED ITS DISCRETION TANTAMOUNT TO LACK OR IN
EXCESS OF JURISDICTION WHEN IT AFFIRMED THE
AWARD OF 13TH MONTH PAY TO PRIVATE RESPONDENTS
 VII.
ARGUMENTS/DISCUSSION

A. THE PUBLIC RESPONDENT GRAVELY ABUSED ITS

DISCRETION TANTAMOUNT TO LACK OR IN EXCESS OF
JURISDICTION WHEN IT REVERSED THE DECISION OF
THE LABOR ARBITER WHICH DISMISSED THE
COMPLAINT FOR CONSTRUCTIVE DISMISSAL.

38. Notably, there are no indications that the private

respondents were constructively dismissed, except for the effects of
the COVID-19 pandemic that affected the operation of the
petitioner resulting in the suspension of operation by March 15,
2020. Thus, the suspension of operation of all modes of
transportation in March 2020 to early June 2020 and limited or
partial operations thereafter is not the fault of the petitioner. These
series of lockdowns were ordered by the government, which the
Public Respondent failed to appreciate.

39. Moreover, private respondents miserably failed to

SUBSTANTIAT THEIR CLAIM FOR CONSTRUCTIVE DISMISSAL. As
the Supreme Court held that it is the employee who has the burden
of proving the manner of his or her dismissal as illustrated in the
case of Italkarat 18, Inc. vs. Juraldine N. Gerasmio9:

“xxx…To illustrate the aforementioned point, in Gemina,

Jr. v. Bankwise, Inc., we ruled that the employee had
indeed failed to state circumstances substantiating his
claim of constructive dismissal as the employee therein
had not claimed to have suffered a demotion in rank or
diminution in pay or other benefits. Instead, the said
employee only claimed to have been subjected to several
acts of harassment by several officers of the employer-
company, including being asked to take a forced leave of
absence, demanding back the employee's service vehicle,
and delaying the release of employee's salaries and
allowances in order to compel him to quit employment.
Citing Philippine Rural Reconstruction Movement (PRRM)
v. Pulgar, we held:

It is a well-settled rule, however, that before the

employer must bear the burden of proving that the
dismissal was legal, the employee must first establish
by substantial evidence the fact of his dismissal from
service. Bare allegations of constructive dismissal,
when uncorroborated by the evidence on record,
cannot be given credence.

In the instant case, the records are bereft of

substantial evidence that will unmistakably establish
9
G.R.No.221411, September 28, 2020.
 a case of constructive dismissal. An act, to be
considered as amounting to constructive dismissal,
must be a display of utter discrimination or
insensibility on the part of the employer so intense
that it becomes unbearable for the employee to
continue with his employment. Here, the
circumstances relayed by Gemina were not clear-cut
indications of bad faith or some malicious design on the
part of Bankwise to make his working environment
insufferable.

Moreover, Bankwise was able to address the allegation of

harassment hurled against its officers and offered a
plausible justification for its actions, x x x.

Without substantial evidence to support his claim,

Gemina's claim of constructive dismissal must fail. It
is an inflexible rule that a party alleging a critical fact
must support his allegation with substantial
evidence, for any decision based on unsubstantiated
allegation cannot stand without offending due
process……xxx”

(Emphasis and underscoring supplied)

40. In the assailed Decision of the Honorable Commission, the

Public Respondent anchors the alleged constructive dismissal by
the non-assignment or redeployment of the private respondents as
bus inspectors for more than six months. However, as correctly
noted by the Labor Arbiter, the private respondents failed to justify
their claim for constructive dismissal when no corroborative
evidence was adduced showing that they were not given
assignments. Further, as correctly ruled by the Labor Arbiter,
private respondents Sinumpaang Salaysay were mere exact
repetition of what they stated in their Position Paper. In their joint
sworn statement (Pinagsamang Sinumpaang Salaysay), private
respondents merely stated “wala po aking natatanggap na
anumang notice to report for work mula sa pangasiwaan ng
CEM Trans Services, Incoporated at Joannajesh/Yohance
Incorporated hanggang sa kasalukuyan.” There was no
allegation that they reported and were not given assignments, or
was informed of their termination from employment. It is also clear
from the chat messages (Annex 9) presented by the private
respondents in their position paper that there was no dismissal
committed by the petitioner.
41. Moreover, the Public Respondent should have taken
judicial notice that the government has suspended all modes of
transportation and cancelled all existing franchise in the city
operation. Only those with special permits would be allowed to
partially operate under the new normal. Pursuant thereto, the
LTFRB issued MC 2020-19, which allowed only a single operator or
area-based operators who have consolidated operationally shall be
allowed or given special permits to operate after the lifting of the
ECQ/MECQ. Petitioner then joined the consortium of bus operators
MEGA MANILA CONSORTIUM (MMC) since it is not qualified as a
single operator.

42. The Public Respondent also failed to consider the fact that
on May 27, 2020, the LTFRB issued two (2) special permits to MMC
under Resolutions No. 65A and 67A, Series of 2020. By reason of
these two resolutions, the LTFRB granted special permits for 333
units to MMC, to be divided among the compliant units of MMC
members.

43. As a result, most of the inspectors/conductors of bus

operators were affected by the changes being implemented by the
LTFRB since they could no longer utilized all of them and
considering further that they have nothing to inspect due to lack
and limited trips.

44. In fact, despite the initial special permits given to

petitioner, it was only operating with few units per day due to lack
of passengers and the buses had to wait for their turns at the
terminal together with the other members of consortium.

45. By mid-July 2020, respondent had to cease operation

again when Metro Manila was placed under the Modified Enhanced
Community Quarantine (MECQ) until the month of August.

46. By September 2020, the operation had increased this

prompted management to call the attention of their employees,
including herein private respondents, to report to office and get
assignments. However, private respondents were the ones that
refused to accept the three (3) day work per week being given by the
petitioner considering that the bus operations have not yet
normalized and the LTFRB still implements the limited operation.

47. During these times, petitioner had no choice but to give

the private respondents limited work assignments. However, the
private respondents REFUSED TO ACCEPT THE REDUCED
WORKING SCHEDULE.

48. With regards to the additional evidences, petitioners had

seasonably moved for the documents should be admitted and taken
into consideration in resolving the merits of this case. In the case of
UNICOL Management Services, Inc. Link Marine PTE, Ltd.
And/or Victoriano B. Tirol, III vs. Delai Malipot, in behalf of
Glicerio Malipot10, the High Court cited Sasan vs. NLRC,
upholding the power of the Commission to admit evidence:

10
G.R. No. 206562, January 21, 2015.
 “xxx…. In Sasan, Sr. v. National Labor Relations
Commission 4th Division,19 We held that our
jurisprudence is replete with cases allowing the NLRC to
admit evidence, not presented before the Labor Arbiter,
and submitted to the NLRC for the first time on appeal.
The submission of additional evidence before the NLRC
is not prohibited by its New Rules of Procedure
considering that rules of evidence prevailing in courts of
law or equity are not controlling in labor cases. The
NLRC and Labor Arbiters are directed to use every and
all reasonable means to ascertain the facts in each case
speedily and objectively, without regard to technicalities
of law and procedure all in the interest of substantial
justice. In keeping with this directive, it has been held
that the NLRC may consider evidence, such as
documents and affidavits, submitted by the parties for
the first time on appeal. ….xxx

49. Furthermore, the Public Respondent gravely abused its

discretion when it failed to consider that Labor Secretary Silvestre
Bello III has allowed the extension of the "floating status" of
workers in times of emergencies until March 2021 under DOLE
Department Order No. 21511. This means that the petitioner cannot
be held liable for constructive dismissal during this period.

50. Under this department order, it allowed the employers to

extend the suspension of employment "in case of declaration of
war, pandemic, or similar national emergencies." Considering these
parameters, petitioner is given the leeway to place their employees
under floating status.

51. Assuming arguendo that petitioner failed to comply with

certain instructions of D.O. 215 series of 2020, still there is neither
Illegal or constructive Dismissal present. Hence, failing to comply
with this DO is not tantamount to dismissing an employee without
cause, and holding the employer liable for such illegal dismissal. It
must be stressed that the private respondents were given duty
schedules which they refused to accept and to report for work.

52. Private respondents claim that they did not receive the
memos are untrue considering that they reported on September 22,
2020 but was not willing to accept the limited work assignments
being given by petitioner. It must be noted that during this time
transport companies were still given limited operation. As shown in
the news, there were limitation on the number of buses that can
operate at their designated routes.

53. Moreover, it is also clear in the complaint that the private

respondents are claiming to have been constructively on March 15,
11
Rule Amending Section 12 of Rule I, Rules of Implementing Book VI of the Labor Code
or Suspension of Employment Relationship. October 23, 2020.
2020 when it was the government that suspended the operation of
the petitioner. Please see attached copy of the Complaint filed by
the private respondents as ANNEX “T”.

54. The chat messages between private respondents and the

petitioner (Annex 9 of the Private Respondents Position Paper and
which is hereto attached as ANNEX “T”) that the claim for
constructive dismissal have no basis. This evidence (Annex 9),
which came from the private respondents are clear proof that there
was no constructive dismissal committed by the petitioner.

55. It is also highly illogical for the petitioner to dismiss the

private respondents considering that on April 2, 2020 petitioner
even released the 13th month pay of the private respondent. (Annex
6 of Petitioner’s Motion to Admit Attached Documents/Evidence).
The position paper and affidavit merely stated that they were Thus,
it is submitted that the Honorable Labor Arbiter correctly observed
that the private respondents failed to substantiate their claim that
they were illegally or constructively dismissed by petitioner.

56. Fair evidentiary rule dictates that before employers are

burdened to prove that they did not commit illegal dismissal, it is
incumbent upon the employee to first establish by substantial
evidence the fact of his or her dismissal. 12 Petitioner never
dismissed private respondents from employment or did any act to
insinuate constructive dismissal. This is clear and unequivocal
from the facts extant from the case.

57. It is settled that the employer has the burden of proving

that the termination of an employee was for a valid and authorized
caus. Yet, it is likewise incumbent upon the employees that they
should first establish by competent evidence the fact of their
dismissal from employment.13

58. The Supreme Court in a case said that “Let it be

underscored that the fact of dismissal must be established by
positive and overt acts of an employer indicating the intention to
dismiss.14 Indeed, a party alleging a critical fact must support his
allegation with substantial evidence, for any decision based on
unsubstantiated allegation cannot stand without offending due
process.15 In this case, there was no positive act done by the
petitioner. In fact, upon resumption of operation it sends
notices to the private respondents.

12
Noblejas v. Italian Maritime Academy Phils., Inc., et al., G.R. No. 207888, June 9,
2014, 725 SCRA 570, 579.
13
Pu-od vs. Ablaze Builders, Inc., G.R.No.230791, November 20, 2017.
14
Canedo vs. Kampilan Security and Detective Agency, G.R. No.179326, July 31, 2013.
15
Macasero vs. Southern Industrial Mares Phils. And/or Lindsya, 579 Phil.494.
 59. Since there is no constructive dismissal to speak off, all pf
the private respondents are not entitled to backwages. Hence, they
should be reinstated without backwages.

60. In the case of Radar Security & Watchman Security,

Inc. vs. Jose D. Castro16, the Supreme Court held that if there is
no constructive dismissal claims for back wages and separation pay
should be denied, stating by way of reiteration, we declare that in
labor cases, where there is neither termination nor
abandonment involved, there is no occasion to grant
separation pay and backwages, nor to allow collection of any
other monetary claims absent evidence to substantiate the
same. The employer and the employee do not have any
obligation one to the other.

61. Considering that both private respondents were not

illegally dismissed, we can refer to the case of EFREN SANTOS, JR.
AND JERAMIL SALMASAN, PETITIONERS, VS. KING
CHEF/MARITES ANG/JOEY DELOS SANTOS, RESPONDENTS17,
penned by justice Fernando, holding that:

"In cases where there is both an absence of

illegal dismissal on the part of the employer and an
absence of abandonment on the part of the
employees, the remedy is reinstatement but without
backwages." However, considering that petitioners do
not pray for such relief, "each party must bear [their]
own loss," placing them on equal footing. Thus, the
NLRC, as affirmed by the CA, is correct in deleting the
award of separation pay to petitioners”

B. WHETHER OR NOT THE PUBLIC RESPONDENT GRAVELY

ABUSED ITS DISCRETION TANTAMOUNT TO LACK OR IN
EXCESS OF JURISDICTION IN DENYING PETITIONER’S
MOTION FOR RECONSIDERATION WITH MOTION TO
ADMIT ADDITIONAL EVIDENCE.

62. Likewise, the Public Respondent failed to consider the

evidence attached to Petitioner’s Motion for Reconsideration. It was
also clearly elaborated petitioner’s motion that non-submission of
the documents as the 201 files of the private respondents were
misplaced during the pandemic. This was attested in the Affidavit
of Merit of Rodrigo Openiano, which was attached to petitioner’s
Motion to Admit Documents/Evidence filed in their Appeal before
the Public Respondent. Further, this was due to fact that most of
the personnel were under work from arrangement due to lack of
available transportation going to Magsaysay, San Pedro, Laguna,
16
G.R.No.211210, December 2, 2015.
17
G.R. No. 211073, November 25, 2020
during that time. Even the private respondents admitted the
difficulty of going to Magsaysay, San Pedro, Laguna in their reply to
their message to petitioner. See Annex 9 of their Position Paper
before the Arbitration level.

63. Hence, the Public Respondent gravely abused its

discretion when it ruled that the petitioner failed to explain the
delay in the submission of documents.

C. THE PUBLIC RESPONDENT GRAVELY ABUSED ITS

DISCRETION TANTAMOUNT TO LACK OR IN EXCESS OF
JURISDICTION WHEN IT MERELY RECOMPUTED THE
HOLIDAY PAY AND THE AWARD OF 13 TH MONTH PAY
AND SILP FOR RESPONDENT NAPAY

64. With all due respect, petitioner denies the recomputed

award considering that petitioner was able to present proof that it
duly paid private respondents SILP and 13 TH MOTH PAY.
Unfortunately, some of the vouchers could not be located
immediately due to voluminous files. However, considering the
petitioner was able to substantially present proof of payment. This
establishes that the private respondents lied when they claimed
that they were not being paid of their benefits.

65. As for the award of Attorney’s fees, Article 111 of the

Labor Code as amended states that:

“xxx….Art. 111. Attorney's fees. In cases of

unlawful withholding of wages, the culpable party
may be assessed attorney's fees equivalent to ten
percent of the amount of wages recovered….xxx”

67. In this case, the petitioner was not found to be culpable,

hence, the payment of attorney’s fees should be deleted.

PRAYER

WHEREFORE premises considered, it is respectfully prayed

that this Honorable Court of Appeals will render judgment
REVERSING the Decision and Resolution dated July 29, 2022 and
October 28, 2022 of the National Labor Relations Commission,
Third Division insofar as the finding of illegal/constructive
dismissal and to issue a new one REINSTATING PARTIALLY the
DECISION OF THE LABOR ARBITER SHERWIN CASURAO insofar
as the dismissal of the complaint for constructively dismissal.

Ordering the private respondents to return to work to their

former position without backwages, and for petitioner to accept
them back to work.
 Other reliefs, just and equitable under the premises are
likewise prayed for.

Muntinlupa City for Manila, 09 January 2021.

ATTY. ARIS J. TALENS

Counsel for the Respondent-Appellees
Roll of Attorney No. 47352
IBP No. 197802– 01/09/22 - Laguna
PTR No. 2906262– 01/03/22 – Parañaque City
MCLE Compliance No. VII. 0009789
– valid until April 14, 2025
Suite 506 South Center Tower
2206 Market Street Madrigal Business Park,
Ayala Alabang, Muntinlupa City
Tel No.: (02)-88504641
Email Address: ajt_ftr@yahoo.com

Copy Furnished:

NLRC-THIRD DIVISION
6th Floor Ben Lor Building, Quezon Avenue,
Quezon City

ATTY. RENATO B. BORLASA

Counsel for the Private Respondent
Jesus J. Napay and Jose Elward L. Elipio
Legal Advocates for Workers Interests (LAWIN)
Room 206 JIAO Building No. 2 Timog Avenue,
Quezon City 1100

WRITTEN EXPLANATION
FOR SERVICE BY REGISTERED MAIL

Please be informed that the undersigned counsel caused the

service of the foregoing Petition by registered mail upon the above-
named parties and the Honorable Court due to lack of manpower
and the Court of Appeals was closed on January 09, 2022.

ARIS J. TALENS