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Republic of the Philippines

Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
Quezon City

GENIE L. DEMOT,
Complainant-Appellee,

-versus- NLRC CASE No.

RAB-CAR-10-0388-21
GOOD TASTE RESTAURANT
AND ANDREA L. GO,
Respondents-Appellants.

X-----------------------X

JOANNA D. MALAQUE,
Complainant-Appellee,
NLRC CASE No.
-versus- RAB-CAR-10-0389-21

GOOD TASTE RESTAURANT

AND ANDREA L. GO,
Respondents-Appellants.

X------------------------X

COMMENT
(On Respondents-Appellants’
Memorandum of Appeal)

Complainants-Appellees, by counsel, in opposition to Respondents-

Appellants’ Memorandum of Appeal dated February 11, 2022, respectfully
state that:

STATEMENT OF THE CASE

On August 27 and 31, 2021, Complainants-Appellees filed a case for
ILLEGAL DISMISSAL and monetary claims against Respondents-
Appellants. On January 28, 2022, the Honorable Labor Arbiter rendered
judgment in favor of the Complainants-Appellees, the dispositive portion
reads:
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“WHEREFORE, premises considered, judgment is hereby

rendered ORDERING respondents Good Taste Restaurant and
Andrea Go jointly and severally liable to pay:
(1) separation pay of each complainant at one (1) month
pay for every year of service;
(2) complainants’ full backwages from the time they were
illegally dismissed up to the finality of the judgment or
decision;
(3) complainants’ nominal damages in the amount of
P25,000.00 each; and,
(4) complainants’ attorney’s fees at ten percent (10%) of
the total monetary amount to be recovered.

The computation of the total award is hereto attached as

Annex “A”.
All other claims are DISMISSED for lack of merit.
SO ORDERED. “
On February 15, 2022, Complainants-Appellees received a copy of the
Memorandum of Appeal of Respondents-Appellants. Complainants on one
hand filed an Appeal on the Dismissal of their other claims such as Moral
and Exemplary Damages and Bonuses.

COUNTER-STATEMENT OF FACTS

In their Memorandum, Respondents-Appellants presented new

allegations which were not raised in their Position Paper/ Reply. These
new allegations are products of Respondents-Appellants’ afterthought
which are improper on Appeal. For instance:

1. Appellants claim in paragraph 9.4 that Genie was able to continue

with her usual work when she reported on June 7, 2021 after her
quarantine period. The truth is, her name was removed in the
endorsement notebook where tasks for each personnel are
indicated, and her tasks in preparing the daily Point-of-Sales
(POS) were completely taken over by Harold who used to be an
“on-call” IT Specialist only, thus, one of her main and usual work
was removed. As correctly stated in the Decision (Pages 6-7):

“(1) Respondent Andrea in the exercise of her

management prerogative in taking over the management
of the restaurant business initiated by her deceased father
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had exceeded the limits of such prerogative. True, she as

General Manager can order an accounting of the cash
flow of the business but she had assigned an employee,
Ronda Palileo [sic] to take over indirectly the functions of
Demot as Operations Manager. In fact, it is unrefuted that
Palileo [sic] was just a mere subordinate of Demot. The
more degrading and humiliating part of it, when her
functions as Operations Manager was stripped away
from her, she became only an Office Assistant.

(2) Respondents cannot also refute that the function

of complainant Demot on computation and on-line
submission of sales was stripped away from her when
Andrea again assigned one Harold Manalang who was
only a mere subordinate and substitute of Demot to take
the position.

(3) More importantly, these unreasonable and

unlikely acts of respondent Andrea in stripping away her
functions as Operations manager without any formal
written communication and valid or just reasons done
after a hearing partakes of the nature of a demotion in
rank. This certainly constitutes constructive dismissal,
plain and simple.”

2. Appellants now claim that the P100,000.00 used as advance

payment for the lemon orders on May 22, 2021 came from the
CHANGE MONEY. Appellants did not present any proof that
they entrusted the change money to Genie at all. As a matter of
fact, Genie consistently asserted that the P100,000.00 was actually
used as advance payment for the lemon order using her personal
funds which she usually did during the time of GM Alfredo. As
correctly stated in the Decision (Page 7):

“(5) Respondent did not consider the clear

explanation of complainant in Exhibit “6” as to the issue
of the amount of P800,000.00 in the possession of
complainant by conducting a hearing where complainant
could have availed of the services of a counsel or
representative to aid her. Respondent just took the law in
her hands and unilaterally gave the basis for her loss of
trust and confidence on complainant Demot.”

3. As consistently explained by Genie in her Position Paper and

Reply, the P800,000.00 mentioned was her personal savings which
were accumulated from her salary, bonuses, and intended for the
payment of her brother’s property. The late GM knows about this
when he was still alive. This P800,000.00 was actually P700,000.00
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because the remaining P100,000.00 was set aside for the advance
payment of lemon. At times, Genie uses her personal funds to pay
for the lemons. Since Genie was under quarantine at the time that
the payment for the lemons was needed, she was not able to go to
GTR to handover the advance payment personally and that she
needed to ask Ronda regarding the unpaid lemons that was due
on May 22, 2021.

4. Appellants belatedly claim in paragraphs 15 and 15.1 that Joanna

vacated her room capriciously. She actually went to the office to
surrender the uniforms and the key to the room. Joanna asked if
there is a need to sign a clearance but Guendolyn Esteban said
“Kahit hindi na, tayo-tayo lang naman dito sa office”. Joanna was then
accompanied by the security guard, Ruel Napoles. The security
guard also checked on complainant’s baggage and all that was
there were personal belongings. This was not contested by
appellants in their Reply. In fact, they had no courtesy of formally
accepting her letter of resignation.

5. In paragraph 26.1.4, Andrea claims that Joanna should have

reported the wrongdoings committed against her to the former.
Joanna could not do that since she observed that Andrea herself
had an antagonistic approach against her being close with Genie
and that Andrea listened to whatever Ronda reports against
Joanna. In paragraph 29.1.2, appellants claim that “Using her
management prerogative, Andrea chose employees who are close
and subservient to her will and aspirations”. Ronda was one of the
chosen employees who acted like she was the Operations Manager
since then.

6. Appellants belatedly claim in paragraph 17.2 that Joanna

“voluntarily disclosed” the P800,000.00. It was already clearly
raised in Joanna’s Position Paper that she underwent interrogation
in an intimidating atmosphere. She was actually detained for
several hours and interrogated without the aid of counsel while
she was being accused of conspiring with Genie of qualified theft.

7. Appellants claim in paragraph 26.2.3 that the interrogations were

conducted in a very calm and civil manner, the interrogations
which they coined as “conversations” actually and effectively
inflicted threat, coercion, intimidation, and anxiety upon Joanna
because she was not assisted by counsel, not given a warning
against self-incrimination and was being goaded to testify against
Genie. In fact, she would cry for days and would sadly return to
her work during and after the interrogations. Instead, she and
Genie were outrightly accused and treated like criminals. As
correctly stated in the Decision (Page 8):
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“(6) It is also established in the facts that

complainant Joanna Malaque was interrogated without
the aid of counsel or representative; she was next
threatened to reveal her participation with Demot by the
two (2) lawyers of respondent hinting that she might be
charged as an accomplice in the crime of theft.

Bearing heavily emotional stress and torture, she

tendered her resignation. Her stress was also caused by
the continuous fault finding in her job by Ms. Ronda and
respondent Andrea.”

Admittedly in the Decision, Joanna suffered mental and

emotional stress, thus, entitled to moral and exemplary damages.

8. The steel cabinet was designated to be personally used by Genie

upon the permission of the late GM Alfredo. Contrary to the
claims that Genie comingled her money with company funds, it
has been clearly established in Genie’s Position Paper that there
are divisions in the steel cabinet which separated her personal
money from the change money. The whole steel cabinet was solely
accessed by Genie and this was repeatedly explained. Appellants
only presumed that everything that is inside the GTR are company
properties. Appellant did not present proof that there are funds
that are actually missing. Appellants merely relied on suspicions
upon suspicions because they were not aware of the management
of GM Alfredo and Genie, before his death.

9. In paragraph 27.5.2, Appellants claim that “it is contrary to human

nature for a person to keep the amount of P800,000.00 in a storage
space, open for access to multiple persons located in a semi open
space”. This is only based on speculation. Genie was in-house
Operations Manager and had no safe in her room. The storage
mentioned by Appellants was the steel cabinet solely accessed by
Genie. Appellants also claim that “it is improper for a manager to
keep her money in the same space where business money is kept”,
such claim is unsubstantiated. The office cabinet that Appellant
had been referring to is a steel cabinet personally accessed by
complainant located beside her office table. During the time that
GM Alfredo was still alive, Genie asked permission to keep her
personal money at the said steel cabinet which GM Alfredo
approved. GM Alfredo usually kept his cash daily in the bank and
not in any steel cabinet at the office including that of Genie. The
late GM also has a personal vault at his side table which only he
can access.
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10. Genie’s steel cabinet was not only designated for the change
money which was placed on the 2nd level drawer, but also for
other files as well as complainant’s personal money which was
placed on the 4th level drawer. There was actually a separate steel
cabinet where Genie puts the prepared loose/change money to be
distributed to the cashiers in four shifts. This separate steel cabinet
was also assigned to Ronda and Marinia where they put the sales
from the cashiers. They were also provided with a key to the
separate steel cabinet.

11. Appellants claim in paragraph 27.6.3 that there is “benefit of the

doubt” given by Andrea to Genie. But the closure of Genie’s room
was enough to actually deprive her to enjoy the use of her
personal quarters which is considered as her dwelling because she
worked on-call for 24 hours. She was demoted, denied of her
room, and treated like a guilty criminal, where was the benefit of
the doubt? In fact, Andrea and the others trespassed Genie’s
dwelling on August 27, 2021 under mere suspicion that she stole
company funds. The subject cash is in the possession of Genie
because it was hers and there is no proof that it was company
money. Appellants did not present any record of entrusting said
amount to her. She received P600,000.00 mid-year and
P1,000,000.00 year-end bonuses, why cannot she have possession
of such amount like P800,000.00.

12. In fact, because she was usually busy, she was unable to encash
the following cheques: a) 2019 bonus check amounting to more
than P120,000.00; b) three bonus cheques for previous years
amounting to more than P60,000.00 each with a total of P180,000.0;
and, c) salary cheques in the previous years, amounting to more
than P30,000.00. The said cheques were taken from her desk.

13. Genie’s room is considered as her domicile since it was assigned

to her by the late GM as her quarters to be able to attend to office
works immediately since 2015 on a 24-hour basis. She occupied it
more than a lessee and should be treated with utmost respect.
Appellants outrightly trespassed Genie’s dwelling and deprived
her to use and access her properties. As legal occupant, a demand
to vacate is necessary before a case of ejectment is instituted. In
this case, Appellant Andrea just closed it without her consent
which is taking the law into their hands just after she took over as
GM. This is definitely illegal.

14. Appellants insist that the payroll of Joanna and Genie shows that
their salaries were way lower than what appellees have been
claiming. However, appellants presented only of a page of each
appellee’s payroll. In fact, the payroll shall consist two pages.
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Appellant presented only the first page of Joanna’s payroll stating

that she received an average monthly net pay of P8,763.67 while
the second page shows that she received P18,000.00 to P20,000.00.
In the case of Genie, Appellant only presented the second page of
her payroll which shows that her average monthly net pay was
P25,658.48. This amount of net pay does not correspond to what
Genie is entitled to since she was the Operations Manager and
worked for almost 24 hours to serve the company. It is suspicious
that appellant did not include the 1st page of Genie’s payroll and
the 2nd page of Joanna’s payroll. In fact, her P600,000.00 mid-year
and P1,000,000.00 year-end bonus is known to Andrea and she
never denied this in her Position Paper/ Reply.

15. Appellants claim on paragraph 26.4 that Joanna is not entitled to

damages and bonuses since there is no evidence of entitlement. It
was consistently claimed by Appellees that there was an
established company practice that the late GM Alfredo gave
bonuses to his office staff. This claim was not refuted by the
Appellant in their position paper and reply. As correctly stated in
the Decision (Page 7):

“(4) Being videoed by respondent Andrea as her

close relatives and followers practically ransacked her
room with steel cabinet that even her underwears in the
cabinet were scattered or exposed no doubt violated her
right to privacy. This act of respondents gravely caused
emotional stress and embarrassment on complainant
Demot. This act of respondents even if viewed by an
ordinary person surfaces as one that is so insensible,
unreasonable, or unlikely. This is again another clear
picture of constructive dismissal.”

16. Genie and Joanna’s bonuses as well as other employee’s bonuses

were given by GM Alfredo as incentive to work harder, that is
why the GTR’s income rose to P1,000,000.00 to P2,000,000.00 daily.
In fact, Ronda, Marinia Agustin, Guendolyn Esteban, and Joannie
Fonte can attest to that since they also received mid-year and year-
end bonuses from GM Alfredo. Ronda and Marinia received
additional three hundred thousand pesos (P300,000.00) mid-year
and year-end bonuses on top of regular bonus for Assistant
Operations Managers amounting to more than P100,000.00. Even
Harold, who was a mere “on-call” IT specialist, received
P300,000.00 mid-year and P500,000.00 year-end bonus from GM
Alfredo. Although these bonuses were not all reflected in the
payroll, the late GM established this company practice as a sign of
his appreciation to the employees’ dedication and loyalty to the
company and to motivate them to work hard.
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17.The bonuses became an established practice of the GTR. This was

unrebutted nor refuted by the company even if there were copies
of all the past vouchers and can easily ask Ronda, Guendolyn, and
Joannie to deny it, but Appellants did not present their vouchers
nor ask them to execute affidavits to refute complainants’
allegations.

18. Appellants claim in paragraph 27.6 that Genie abandoned her

personal quarters. She went home to seek the assistance of her
family on July 6, 2021 because she was ill of Dengue Fever. She
resumed at work on July 20, 2021 and opted to go home to her
family every night because she was still regaining her strength at
that time. Genie was surprised when a notice was posted on the
door of her personal quarters. Considering the time that she
decided to go home up to the posting of notice, the period was not
that lengthy to conclude that Genie abandoned her personal
quarters. It is absurd to say that Genie abandoned her room since
appellant denied her access to her room.

19. Appellants claim that documents that are crucial to the “GO
family” were discovered in Genie’s room. At the time GM Alfredo
and Genie transferred from the old office due to renovation, the
late GM told complainant to put old documents (such as used
check books, passbooks, deposit slips, 2015 sales reports) into
complainant’s room to give space for new documents which are to
be placed in the renovated office and GM’s room. There were
even old family photos which Genie set aside and kept safely.
These documents remained intact, untouched, and separated from
Genie’s personal belongings. Moreover, these documents are
already accounted and reviewed by GM Alfredo and subject to
shredding/ burning.

20. Unlike the children of GM Alfredo, Genie suffered depression

over his death. Thus, it was more stressful on her part when she
was treated like a criminal without basis and stripped of her
functions.

21. Genie has always been consistent in explaining the P800,000.00

and it was corroborated by Joanna. Genie never referred to the
change money as her personal money and she consistently
claimed that the P800,000.00 was her personal money and its
particulars are well substantiated in the Position Paper/ Reply.

22. Andrea alleged that she gave “the benefit of the doubt” has
already been dispelled by the acts of stripping of Genie’s functions
and harassment which culminated on August 27, 2021. The
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accounting and turn-over of documents were already consistently

explained by Genie in her Letters of Explanation and Position
Paper/ Reply.

23. Appellants belatedly claim that considering Genie identified her

duties and responsibilities particularly money custody,
management, and disbursement, Andrea requested to do a turn-
over and accounting of GTR funds. The garbage money was not
even under Genie’s responsibility because it was Ronda’s task.
Also, Ronda immediately took charge of the water sales after the
death of GM Alfredo. She actually placed the box for water sales
and the garbage money on her side table since May 13, 2021. It is
noteworthy that Andrea and Ronda had been accounting the
garbage money, change money, and water sales from June to
August 2021.

24. Sometime in the 3rd week of August, Ronda asked Genie where
the key to the latter’s steel cabinet was placed, as per Andrea’s
instruction. Upon checking her steel cabinet on the following day,
Genie noticed that the change money was disarranged and were
obviously pried on. In fact, after death of the GM, Genie already
endorsed the P1,000,000.00 change money in GTR Main and
P2,000,000.00 change money in Otek Branch although Andrea
wanted to declare to her brother Fred Michael that the change
money in Main was only P250,000.00 while P350,000.00 in Otek
Branch. This was not refuted by respondents and it is surprising
why Genie is being asked to account the said funds.

25. In paragraph 27.10, appellants claim that Genie’s salary and

bonuses were not substantiated by documents or affidavits but the
fact is Andrea has the control over the copies of the payrolls,
vouchers, and records of Genie. All she has to do is to present the
payrolls and vouchers for the past five years of the appellees
including Ronda, Marinia, and Guendolyn. Regarding the
bonuses, it has been established that office staff were given
bonuses way higher than what was provided by law and it is an
established practice of the late GM Alfredo as his act of generosity
to his employees. These bonuses were not disputed by Andrea,
Ronda, Guendolyn, and Joannie in the Position Paper. They even
took her un-encashed cheques and have not returned it. On many
occasions, GM Alfredo did not document her bonuses but this is
known to Andrea.

26. In paragraph 28.4 to 28.6, Appellants allege that Joanna was not
constructively dismissed because the acts complained were not
done by Andrea, instead, by her co-workers. This claim tries to
isolate the harassments against Joanna from the responsibility of
Andrea as the employer. Andrea condoned such acts and
 P a g e | 10

emboldened Ronda, Guendolyn, and Joannie to bully Joanna.

There were several moments that Andrea despised Joanna for
being the OM’s assistant. The August 17 and 19, 2021 incident was
the peak of harassments against Joanna.

27. In time, Andrea exceeded her management prerogative when she

launched her investigation and harassment against appellees even
before Joanna submitted her resignation letter. In truth, this is an
admission that Andrea promoted employees close to her and
shown antagonism against Appellees who were close to GM
Alfredo.

ARGUMENTS

Respondents-Appellants assigned the following errors:

1. The Honorable Labor Arbiter gravely erred in ruling that the

Complainants-Appellees were constructively dismissed;

2. The Honorable Labor Arbiter gravely erred in giving monetary

awards to the Complainants-Appellees;

3. The Honorable Labor Arbiter gravely abused his discretion when

he ruled on matters in favor of the complainants without
substantial evidence;

4. The Honorable Labor Arbiter made serious errors in his findings

of facts which, if not corrected, would cause grave or irreparable
damage or injury to the Appellant.

Complainants-Appellees vehemently disagree and support the

findings of the Honorable Labor Arbiter.

DISCUSSIONS

There were new allegations against Complainants-Appellees

which does not form part of the case.

On appeal, Appellants raised new allegations which were not

included in their position paper. Rules on Appeal prohibits parties to
raise new facts to distort the findings of the Labor Arbiter. Instead,
Appellants allege that the Honorable Labor Arbiter erred in ruling that
Appellees were constructively dismissed and entitled of monetary
awards.
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The Court ruled in Tegimenta Chemical Phils. v. Buensalida that the

filing of the position paper is the operative act which forecloses the
raising of other matters constitutive of the cause of action.1

The law clearly provides that appeals may only be entertained on

specific grounds, to wit: 1) there is prima facie evidence or abuse of
discretion on the part of the Labor Arbiter, Regional Director or any duly
authorized Hearing Officer and Administrator; 2)the Decision, order or
award was secured through fraud or coercion, or graft and corruption; 3)
the appeal is made purely on questions of law; and/or, 4) the serious
errors in the finding of facts were committed which, if not corrected,
would cause grave or irreparable damage or injury to the Appellant.2

These allegations are devoid of substantial evidence and merely

serve to resuscitate the already debunked claims in the Appellants’
position paper.

In Manila Mining Corporation v. Lowito Amor, et. al, the Court

ruled:

XXX
“Time and again, it has been held that the right to appeal
is not a natural right or a part of due process; it is merely a
statutory privilege, and may be exercised only in the manner
and in accordance with the provisions of law. A party who
seeks to avail of the right must, therefore, comply with the
requirements of the rules, failing which the right to appeal is
invariably lost. Insofar as appeals from decisions of the Labor
Arbiter are concerned, Article 223 of the Labor Code of the
Philippines provides that, ‘(d)ecisions, awards, or orders of the
Labor Arbiter are final and executory unless appealed to the
[NLRC] by any or both parties within ten (10) calendar days
from the receipt of such decisions, awards or orders.’ In case of
a judgment involving a monetary award, the same provision
mandates that, ‘an appeal by the employer may be perfected
only upon the posting of a cash or surety bond issued by a
reputable bonding company duly accredited by the [NLRC] in
the amount equivalent to the monetary award in the judgment
appealed from’.”3

XXX

In the instant case, appellants did not consider the grounds

provided by law in their appeal and relied on belated allegations. These
allegations are dubious since these were formulated from mere

1
G.R. NO. 176466, June 17, 2008
2
NLRC Interim Rules on Appeal under R.A. 6715
3
G.R. No. 182800, April 20, 2015
 P a g e | 12

afterthoughts. These new allegations are not tantamount to evidence,

thus, should not be given any weight or merit.

Complainants-Appellees were constructively dismissed,

thus, entitled to separation pay, backwages, and damages.

There is constructive dismissal when an employer's act of clear

discrimination, insensibility or disdain becomes so unbearable on the part
of the employee so as to foreclose any choice on his part except to resign
from such employment.4

The Honorable Arbiter found that the emotional stress and torture as
well as the stripping-off of appellees’ functions without just reasons were
clear manifestations that they were constructively dismissed. Moreover, the
act of appellant when she and the others ransacked Genie’s room is
insensible, unreasonable, and unlikely. Andrea’s exercise of management
after the death of GM Alfredo has exceeded the limits of such prerogative
when she carried out the interrogations against Joanna, accused Appellees
of theft, and violated Genie’s right to property and domicile.

In its Decision, the Honorable Labor Arbiter concluded that “this

Office finds sufficient reasons to rule that both complainants in the instant
case were constructively dismissed. They, must, therefore, be paid
respective legal separation pay in lieu of reinstatement by reason of
strained relationship”. In addition, the Labor Arbiter said “complainants
must also be paid their full backwages inclusive of the benefits they used to
enjoy, except bonuses”. Yet, Appellees should also be entitled of their
bonuses as a result of the constructive dismissal and that GM Alfredo’s
policy on giving bonuses is an established company practice which
Appellant failed to refute.

As to the Nominal Damages, the Honorable Labor Arbiter affirmed

in page 8 of the Decision that:
“This Office, however, finds a blatant violation by
respondent Andrea of the substantive and procedural due
process rights of complainants for which nominal damages
could be awarded.”

Insofar as moral and exemplary damages are concerned, the Decision

has already found the fact that complainants were harassed and their right
to counsel, property, and due process were trampled upon. It is already
painful for them that their long years of loyalty and hard work were
ignored and their dignity was tainted when they were treated like
criminals. Setting their entitlement to damages aside adds to the torment
that Appellees endured. Hence, Appellees are not only entitled to Nominal
Damages but also to Moral and Exemplary Damages. As a matter of fact,
the Honorable Labor Arbiter affirmed in paragraph 4 (page 7) and
4
Rodriguez v. Park N Ride, Inc., G.R. No. 222980, March 20, 2017
 P a g e | 13

paragraph 6 (page 8) of the Decision, that Appellees endured “emotional

stress” due to the acts of appellant, thus, they are entitled to moral and
exemplary damages.

PRAYER
WHEREFORE, it is respectfully prayed that the instant appeal be
DISMISSED and the moral and exemplary damages including the bonuses
be awarded to complainants-appellees.

Respectfully submitted this 25th day of February 2022.

MOLINTAS AND PARTNERS LAW OFFICE

Room No. 305, 3rd Floor, Jose Miguel Building I
No. 1, Labsan St., corner Yandoc St., 2600 Baguio City
Tel. No. (074) 665-7821

By:
JOSE MENCIO MOLINTAS
PTR No. 4947218; 02-02-22; Baguio City
IBP Lifetime No. 00163, 01-14-94; Baguio-Benguet
Roll No. 34901, 06-01-87; Manila
MCLE Compliance No.VI-0007602; 04-18-18
E-mail: sp.joemol@gmail.com
Contact no. 09189316515

Copy furnished:
Quadra-Pastor-Quadra Law Office
Suite 501, 5th Floor, National Life Insurance Building,
Session Road, Baguio City