memorandum of appeal

7/27/2019 Memorandum of Appeal

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Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSIONRegional Arbitration Branch No. XV

Trece Martires St., Gotham City

CHRISTINE M. AGOO,

Complainant-Appellee,

-versus- NLRC, RAB XV CASE NO. 1-009-06

GOTHAM I ELECTRIC COOPERATIVE, INC.

(GOTELCO I)/JIM LEO A. ACHESTA,

Respondent-Appellant.

x ------------------------------------------------------------ x

NOTICE OF APPEAL

COMES NOW respondent-appellant, by the undersigned counsel, unto this

Honorable Regional Arbitration Branch most respectfully files this Notice of Appeal

together with the Memorandum of Appeal of its Decision dated September 29, 2006

rendered in the above-entitled case and received by respondent-appellant on October 5,

2006 and appeals the same being contrary to law, evidence and applicable jurisprudence.

Tacloban City, October 16, 2006.

ATTY. JOHN DOE

Counsel for respondent-appellant

#123 Gotham City

Copy furnished by personal service:

Atty. Jane Deer

Counsel for complainant-appellee

#234 Gotham City


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Republic of the PhilippinesDepartment of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION

Fourth Division, Cebu city

CHRISTINE M. AGOO,

Complainant-Appellee,

-versus- NLRC, RAB XV CASE NO. 1-009-06

GOTHAM I ELECTRIC COOPERATIVE, INC.

(GOTELCO I)/JIM LEO A. ACHESTA,

Respondent-Appellant.

x ------------------------------------------------------------ x

MEMORANDUM OF APPEAL

COMES NOW respondent-appellant, by the undersigned counsel, unto this

Honorable Commission, most respectfully avers:

PREFATORY

This is an appeal of the decision rendered by the Regional Arbitration Branch No.

XV (RAB-XV for brevity) dated September 29, 2006 and received by herein respondent-

appellant on October 5, 2006 which was rendered in favor of herein complainant-appellee

and against respondent-appellant despite and because of the following errors:

ASSIGNMENT OF ERRORS

1. THAT THE HONORABLE RAB-XV ERRED IN HOLDING THAT

COMPLAINANT-APPELLEE IS ENTITLED TO REINSTATEMENT

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2. THAT THE HONORABLE RAB-XV ERRED IN HOLDING THAT

COMPLAINANT-APPELLEE IS ENTITLED TO PAYMENT OF MORAL

AND EXEMPLARY DAMAGES

ARGUMENTS

FIRST ERROR:

THAT THE HONORABLE RAB-XV ERRED IN HOLDING THAT

COMPLAINANT-APPELLEE IS ENTITLED TO REINSTATEMENT

Assuming that complainant-appellee was constructively dismissed, the Honorable

RAB-XV erred in holding that complainant-appellee is entitled to reinstatement. The

Honorable RAB-XV did not take into account the circumstances obtaining in the case

which makes reinstatement no longer a proper remedy. Under prevailing jurisprudence,

antagonism makes reinstatement no longer viable as a remedy in illegal dismissal cases.

In Samuel Samarca vs. Arc-Men Industries, Inc. [G.R. No. 146118. October 8,

2003], involving a complaint for illegal suspension which was later on amended to illegal

dismissal filed by a machine operator, the Supreme Court held that:

In sum, we find that petitioner did not abandon his job but

was illegally dismissed by respondent. xxx

However, the circumstances obtaining in this case do not

warrant the reinstatement of petitioner. Antagonism caused a severe

strain in the relationship between him and the respondent. A more

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equitable disposition would be an award of separation pay equivalent

to one (1) months pay for every year of service. (emphasis and

underscoring supplied).

With all due respect to the Honorable RAB-XV, the antagonism between herein

respondent-appellant and complainant-appellee is quite manifest in this case. The filing

of various cases including among others the criminal case for violation of SSS Law filed

against respondent-appellant (annex 2 of respondents position paper) and the criminal

case for perjury filed against complainant-appelle (annex 5 in respondents position

paper) as well as other imputations of bad faith against each other has severely strained

the relationship between both parties in this case. Reinstatement of herein complainant-

appellee would not serve any prudent purpose as there will likely be an atmosphere of

antipathy and antagonism that would not create a good working environment in the

workplace. A testament to this is the impression she has made among the personnel in

the office as may be inferred in the affidavit executed by CHARLENE C. LINGA and

DIVINA C. BALUTE both of whom are employees of GOTELCO I, to wit:

That the personal character of MS. CHRISTINE M. AGOO

shows of her hasty attitude of filing the criminal complaint against the

General Manager of GOTELCO I which appears to be unnecessary,

probably banking on her being a law student and abusing her knowledge

of law, which will not promote good and harmonious relationship among

personnel of the same office, and such action of filing a complaint against

the management is uncalled for, considering that we are bound and have

our common sworn duties and responsibilities to serve well the general

public. (Annex 3 in respondents position paper).

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SECOND ERROR:

THAT THE HONORABLE RAB-XV ERRED IN HOLDING THAT

COMPLAINANT-APPELLEE IS ENTITLED TO PAYMENT OF MORAL

AND EXEMPLARY DAMAGES

It is a settled rule that moral damages are recoverable in dismissal cases only

where the dismissal 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 while

exemplary damages in dismissal cases may be awarded only if the dismissal was affected

in a wanton, oppressive or malevolent manner. A dismissal may be contrary to law,

but by itself alone, it does not necessarily establish bad faith. [Colegio De San Juan

de Letran-Calamba vs. Villas. G.R. No. 137795, March 26, 2003)].

The person claiming moral damages must prove the existence of bad faith by

clear and convincing evidence for the law always presumes good faith. [PAL vs. NLRC,

et. Al. G.R. No. 132605, February 2, 1999].

The termination of employment of herein complainant-appellee was never

attended with bad faith on the part of the respondent-appellant. The suspension meted

out on her was on based on the honest belief that she was intentionally withholding her

SSS number from management despite the fact that it had earlier been asked of her so as

to include her in the SSS report of remittance. Such fact alone negates the existence of

bad faith. Respondent-appellant was only reacting to what it supposed was a deliberate

intention by complainant-appellee to ensure the criminal prosecution of the former for

violation of the SSS Law.

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PRAYER/RELIEF

WHEREFORE, premises considered, it is most respectfully prayed of this

Honorable Commission that the decision of the NLRC RAB XV in the above-captioned

case be set aside and a new one rendered (1) ordering separation pay in lieu of

reinstatement due to the animosity between the parties; and (2) absolving the respondent-

appellee from payment of moral and exemplary damages.

Other reliefs just and equitable are likewise prayed for.

Tacloban City for Cebu City, October 16, 2006.

ATTY. JOHN DOE

Counsel for respondent-appellant

#123 Gotham City

VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING

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memorandum of appeal

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