Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. X
Cagayan de Oro City

BREJEDO M. OTERO, JR. NLRC CASE NO. RAB-10-08-

Complainant-Appellee; 00418-2020

- Versus - FOR:

FEMJEG SECURITY AND ALLIED ILLEGAL DISMISSAL AND

SERVICES (aka FEMJEG MONEY CLAIMS
SECURITY AGENCY), FLORA
MORALES, Owner AND JESUS S.
APOLONIO, Managing Director
Respondent/s-Appellants
x-----------------------------------------------/

REPLY TO APPELLANTS’ MEMORANDUM

COMPLAINANT-APPELLEE by counsel, unto this Honorable

Commission – 8th Division, most respectfully avers that:

1. On 11 May 2024 counsel for the complainant-appellee received

a copy of the Memorandum of Appeal dated 09 May 2024 filed by
respondents-appellants through counsel. Counting from date
of receipt, appellee has until 21 May 2024 to reply. Thus, this
Reply to Appellants’ Memorandum is seasonably filed in
accordance with Section 4(c), Rule VI – Appeals, of the 2011
NLRC Rules of Procedure.

2. Appellants cited two grounds in seeking before to overturn the

Decision dated 18 March 2024 rendered by Honorable Labor
Arbiter Joan M. Jabar-Waga (LA Waga) in the above captioned
case. The first ground is abused of discretion by the Labor
Arbiter in rendering the Decision and the second is serious error
in the finding of facts committed by the Labor Arbiter causing
grave and/or irreparable damage or injury to the appellants.

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3. Notably, the appeal has not been perfected in view of non-
compliance of the requirements prescribed under Section
Section 4(a)5, Rule VI – Appeals. There is no proof of payment
of appeal fee and no showing of payment of bond for the
monetary awards. The proviso following the cited rule is
guiding, to wit: “b) A mere notice of appeal without complying with
the other requisites aforestated shall not stop the running of the period
for perfecting an appeal.”

4. Jurisprudence is replete of cases stating that grave abuse of

discretion connotes a capricious and whimsical exercise of
judgment, done in a despotic manner by reason of passion or
personal hostility, the character of which being so patent and
gross as to amount to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined by or to act at all in
contemplation of law. Here, respondents’ assertions fail to
convince. Mere allegations do not equate to proof.

5. In labor cases, grave abuse of discretion may be ascribed to the

Labor Arbiter when the findings and conclusions are not
supported by substantial evidence, which refers to that amount
of relevant evidence that a reasonable mind might accept as
adequate to justify a conclusion. Thus, if the Decision rendered
by the LA, has basis in the evidence and the applicable law and
jurisprudence, then no grave abuse of discretion exist and this
appeal should accordingly be dismissed for lack of merit.

6. In this case, Hon. LA Waga rendered a Decision based on the

facts of the case buttressed by law and jurisprudence. In fact, in
the Decision, Hon. LA Waga cited lack of opposition and reply
by the respondents on the fact that the complainant may be
transferred to locations (Wao and Valencia) near to
complainant’s residence. Had respondents intended not to
sever his employment but only to transfer work assignment,
respondents could have designated a new detail without
requiring complainant to go to Polomolok, South Cotabato
where respondents’ office is situated.

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7. Respondents’ claim that the manager offered complainant,
during the mandatory conference, that he be detailed at the
near locations is clearly an afterthought that is wanting of
proof. On the contrary, the subject Relieve of Post Assignment
(Annex “B”, position paper), shows intent to dismiss
complainant. If new work assignment was the reason of
respondents in issuing the Memo, there was no cogent need for
complainant to report at respondents’ office in Polomolok,
South Cotabato which is very far away from complainant’s
residence. Respondents’ claim and offer of transfer of work is
not in accord with the Memo. Perforce, logic dictates that
complainant was summarily terminated in the guise of the
transfer order.

8. What Hon. LA Waga missed in the Decision is the award of

damages to which complainant is lawfully entitled.

9. Complainant was put at a “Floating Status” when he was

removed from his post. The case of Airborne Maintenance vs.
Egos (G.R. No. 222748, April 03, 2019), is guiding where the
following were cited to wit:

“Here, the totality of the foregoing circumstances

shows that petitioner’s acts of not informing
respondent and the DOLE of the suspension of its
operations, failing to prove the bona fide suspension
of its business or undertaking, ignoring respondent’s
follow-ups on a new assignment, and belated sending
of letters/notices which were returned to it, were done
to make it appear as if respondent had not been
dismissed. These acts, however, clearly amounted to a
dismissal, for which petitioner is liable.” (emphasis ours)

10. Also in the case of Morales vs. Harbour Centre Port Terminal
(G.R. No. 174208, January 25, 2012), the Supreme Court ruled, to
wit:

“Constructive dismissal exists where 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

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 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.”

11. Here, respondents-appellants could not justify the Memo it

issued. Clearly, as the words in the Memo reveal, respondents
intended to terminate complainant who participated in asking
the management to replace the head guard.

Grant of Moral Damages on Respondents’ Bad Faith.

12.Complainant as employee is entitled to moral damages because

respondents acted a) in bad faith or fraud; b) in a manner
oppressive to labor; or c) in a manner contrary to morals, good
customs, or public policy.

13.Bad faith "implies a conscious and intentional design to do a

wrongful act for a dishonest purpose or moral
obliquity." Cathay Pacific Airways v. Spouses Vazquez established
that bad faith must be proven through clear and convincing
evidence. This is because "[b]adfaith and fraud . . . are serious
accusations that can be so conveniently and casually invoked,
and that is why they are never presumed. They amount to mere
slogans or mudslinging unless convincingly substantiated by
whoever is alleging them." Here, there was clear and
convincing evidence of bad faith perpetrated by respondents
against complainant, as gleaned by the Memo the respondents
issued.

14.Moral damages are, thus, appropriate. In Almira v. B.F. Goodrich

Philippines, the Supreme Court noted that unemployment
"brings untold hardships and sorrows on those dependent on
the wage-earner."1 Complainant and his family had to survive
without the usual salary. The deprivation of economic
compensation caused mental anguish, fright, serious anxiety,
1
CIVIL CODE, art. 2217: Moral damages include physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation,
and similar injury. Though incapable of pecuniary computation, moral damages may be
recovered if they are the proximate result of the defendant’s wrongful act or omission.

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 besmirched reputation, and wounded feelings. All these are
grounds for an award of moral damages under the Civil Code.

Award of Exemplary Damages is Warranted

15.Complainants are also entitled to exemplary damages. Under

Article 2229 of the Civil Code, "[e]xemplary or corrective
damages are imposed, by way of example or correction for the
public good, in addition to the moral, temperate, liquidated or
compensatory damages." As this court has stated in the past:
"Exemplary damages are designed by our civil law to permit
the courts to reshape behaviour that is socially deleterious in its
consequence by creating negative incentives or deterrents
against such behaviour."2

16.If the case involves a contract, Article 2332 of the Civil Code
provides that "the court may award exemplary damages if the
defendant acted in a wanton, fraudulent, reckless, oppressive
or malevolent manner." Thus, in Garcia v. NLRC, 3 this court
ruled that in labor cases, the court may award exemplary
damages "if the dismissal was effected in a wanton, oppressive
or malevolent manner."

17.It is socially deleterious for respondents to make it appear that

their acts are in accord with labor laws, existing regulations,
and jurisprudence. Hence, exemplary damages are necessary to
deter future employers from committing the same acts.

WHEREFORE, complainant respectfully prays to the Honorable

Commission to affirm the Decision rendered by Honorable Office of
the Labor Arbiter Joan M. Jabar-Waga in this case, with modifications
that the following be awarded to the complainant:

To pay complainant overtime pay, holiday pay, service

incentive leave pay, and 13th month pay, for the years of service
and reimbursed the cash bond due to complainant.

2
Mecenas v. Court of Appeals, 259 Phil. 556, 574 (1989) [Per J. Feliciano, Third Division].
3
G.R. No. 110518, August 1, 1994, 234 SCRA 632 [Per J. Cruz, First Division]. This case
involved retrenchment. While this court denied moral and exemplary damages, the case
provides definitions on when these awards are appropriate in labor cases.

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 To pay no less than P 200,000.00 as moral damages; P 200,000.00
or more as exemplary damages; P 60,000.00 as nominal
damages and attorney’s fees.

Complainant further prays for such other just and equitable

reliefs as law and equity allow.

Don Carlos, Bukidnon for Cagayan de Oro City, Philippines

this 21st of May 2024.

ATTY. FLORENTINE T. GARAY

Counsel for the Complainant
Roll No. 65136; IBP Lifetime No. 015158
PTR No. 5434981B, 01-05-2024; TIN-199-588-890
MCLE Compliance No. VII-0025526 (until 2025)
MCLE Exemption No. VIII – BEP002358 (until 2028)

F. T. Garay Law Office

Door 2, FS Garay Bldg., Sayre Highway,
Don Carlos, Bukidnon 8712
Mobile No. 09177192662
Email address: [email protected]

Copy furnished to counsel for the respondents:

ATTY. AMADO M. SOLAMO

Door 2, Lopez Building, Maya Street
Ecoland Phase II, Matina,
Davao City

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