Republic of the Philippines

COURT OF APPEALS
Manila

XYZ CORPORATION, INC.,

Petitioner,

-versus- C.A. G.R. S.P. No.

(NLRC RAB No. 02-11034-17)
(NLRC LAC No. 03-00123-17)

NATIONAL LABOR
RELATIONS COMMISSION
and JUAN C. DELA CRUZ,
Respondents.

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

PETITION FOR CERTIORARI

PREFATORY STATEMENT

“Except as limited by special laws, an employer is free to regulate,

according to his own discretion and judgment, all aspects of
employment, including hiring, work assignment, working methods,
time, place and manner of works, tools to be used, processes to be
followed, supervision of workers, working regulations, transfer of
employees, work supervision, lay-off of workers and the discipline,
dismissal and recall of work (San Miguel Brewery Sales Force Union
(PTGWO) vs. Ople, 170 SCRA 25). The determination of the
continuing necessity of a particular officer or position in a business
corporation is management’s prerogative, and the courts will not
interfere with the exercise of such so long as no abuse of discretion
or merely arbitrary or malicious action on the part of management is
shown (Wiltshire File Co., Inc. v. NLRC, 193 SCRA 665).”

PETITIONER, through counsel, most respectfully states that:

I. NATURE AND TIMELINESS OF THE PETITION

A. Nature

This is a special civil action for Certiorari under Rule 65 of the

Rules of Court seeking the review and annulment of the Decision (A
certified copy is hereto attached as Annex “A”- Certiorari) of the Third
Division Honorable National Labor Relations Commission (thereafter
referred to as “NLRC” for brevity) dated 10 April 2017 in NLRC LAC
Case No. 03-00123-17 reversing the decision (A certified copy is
hereto attached as Annex “B”- Certiorari) of Labor Arbiter Lorgen C.
Sarabillo in NLRC RAB No. 02-11034-17dated 24 February 2017;
and the Resolution (A certified copy is hereto attached as Annex “C”-
Certiorari) of the NLRC dated 21 April 2017 denying petitioner’s
Motion for Reconsideration dated 17 April 2017.

Petitioner assails the aforesaid Decision of the Honorable

Commission reversing the earlier decision of the Honorable Labor
Arbiter, as well as its Resolution on the Motion for Reconsideration
for having been rendered not in accordance with law and with grave
abuse of discretion, amounting to lack and/or excess of jurisdiction,
which can only be corrected by writ of Certiorari.

Petitioner likewise maintains that it has no plain, speedy and

adequate remedy in the ordinary course of law, other than this
Petition.

B. Timeliness of the Petition

The chronological sequence of the promulgation of Decision/

Resolutions on the instant case can be enumerated as follows:

1. Primarily, Private Respondent JUAN C. DELA CRUZ (“DELA

CRUZ” for brevity) lodged a complaint against Petitioner-Appellant
XYZ Corporation, Inc. (“XYZ” for brevity) with the Regional
Arbitration Branch-NCR of the NLRC on 3 February 2017.

2. Mandatory Conciliation/ Mediation Conference were

previously set but for failure to amicably settle, both parties were
directed to submit their respective position papers. After both parties
have submitted their respective pleadings – Position Paper (Copy of
the Position Paper of Petitioner-Appellant and Respondent DELA
CRUZ are hereto attached as Annexes “D”-Certiorari and “E”-
Certiorari, respectively); Reply (Copy of the Reply of Petitioner-
Appellant XYZ and Respondent DELA CRUZ are hereto attached as
Annexes “F”-Certiorari and “G”-Certiorari, respectively) and Rejoinder
(Copy of the Rejoinder of Petitioner-Appellant and Respondent XYZ
are hereto attached as Annexes “H”-Certiorari and “I”-Certiorari,
respectively), the case was deemed submitted for Resolution.

3. On 24 February 2017, Labor Arbiter Lorgen Sarabillo

rendered her Decision (See Annex “B”-Certiorari), the dispositive
portion of which reads, thus:
 “WHEREFORE, the complaint for illegal
dismissal is hereby dismissed for lack of merit.
Respondent XYZ Corporation is, however,
ordered to pay complainant Juan C. Dela Cruz
wage differential in the sum of P65,752.00. All
other claims are dismissed for lack of merit.

SO ORDERED.

Makati City, Philippines, 24 February 2017.”

4. DELA CRUZ appealed the aforecited Decision on 8 March

2017 (A copy is hereto attached as Annex “J” Certiorari), which was
granted on 10 April 2017, the dispositive portion of which reads, thus:

“WHEREFORE, premises considered, the

Decision of Labor Arbiter Lorgen Sarabillo,
dated 24 February 2017, is hereby
REVERSED and SET ASIDE. Complainant is
hereby declared to have been illegally
dismissed. Consequently, respondent XYZ
Corporation is hereby ordered to reinstate
complainant Juan C. Dela Cruz to his former
position without loss of seniority right and to
pay him full backwages from the time his
compensation was withheld by reason of his
illegal dismissal until actual reinstatement.
The totality of complainant’s monetary award
as computed by the Computation and
Examination Unit is hereby adopted as
integral part of this Decision.

SO ORDERED.

Makati City, Philippines, 10 April 2017”

5. When the XYZ Corporation, Inc. received a copy of this

Decision on 14 April 2017, counsel timely moved for a
reconsideration by filing his Motion for Reconsideration (Attached as
Annex “K”-Certiorari) on 17 April 2017 to which respondent DELA
CRUZ filed his Opposition dated 19 April 2017 and the same Third
Division of the Honorable Commission promulgated a Resolution
(See Annex “C”-Certiorari) on 21 April 2017 denying the motion for
reconsideration a copy of which was received by petitioner’s counsel
on 26 April 2017.

6. Under Section 4, Rule 65 of the 1997 Rules of Court, a

Petition for Certiorari may be filed not later than sixty (60) days from
notice of judgment, order or resolution sought to be assailed. Since
petitioner’s counsel received the Resolution of the Honorable
Commission on its Motion for Reconsideration last 26 April 2017, it
has 60 days from thereon or until 26 June 2017 within which to file his
petition, hence, the timeliness of this Petition.

II. THE PARTIES

7. Petitioner-appellant XYZ Corporation, Inc. is a corporation

duly organized and existing under the laws of the Republic of the
Philippines with principal office at 1921 Kamagong St., San Antonio
Village, Makati City, Metro Manila, NCR 1203. Co-petitioners
MENDIOLA and PANGILINAN are the Vice-President and General
Manager of XYZ, which for purposes of this appeal, may be served
with summons and other processes of this Honorable Commission
through the undersigned counsel;

8. Respondent DELA CRUZ worked as a Procurement

Engineer at XYZ prior to his severance from employment. He is
residing at Blk. 51 Lot 11, Ceris 3 Subdivision, Canlubang, Calamba
City, Laguna, 4208;

9. Petitioner and Private Respondent may be served with legal

processes as may be issued by this Honorable Court through their
respective counsel;

10. Lastly, the Honorable Public Respondent , the National

Labor Relations Commission is hereby impleaded as a nominal party,
and may be served with summons and other processes of this
Honorable Court at the ECC Bldg, 353 Sen. Gil J. Puyat Ave, Makati,
1209 Metro Manila;

III. STATEMENT OF ESTABLISHED FACTS AND THE CASE

As can be culled from the records, the facts of the case may be
capsulized into the following:

11. XYZ CORPORATION, INC. is one of the world’s largest

providers of outsourced semiconductor packaging and test services.
It started its business in the Philippines on January 1998 with only
two (2) locations, in Cavite and Laguna as their pioneer production
facilities on its first year.

12. Due to high demand, it started its expansion by acquiring

and establishing production facilities located in Bulacan, Batangas,
and Pampanga on January 2003.

13. DELA CRUZ initially started working for XYZ in June 2005
as a Material Handler. He was a fresh graduate when he was hired
by XYZ. He undergone several trainings provided by XYZ in order to
compensate for his lack of working experience.

14. When opportunity for promotion became available, he

was promoted as a Procurement Engineer on December 2008 and
was assigned in Laguna. Together with ten (10) other Procurement
Engineers, his tasks include the following:

a) Buy machines, equipment, fabrications, tooling, and molds

required by the company;

b) Coordinate procurement activities with manufacturing and

engineering to maintain inventory at planned levels;

c) Examines and analyzes purchase requisitions for completeness

and accuracy of information;

d) Determines method to process requisition based on dollar

amount, timeliness required, existing open contracts, and/or
competitive bidding;

e) Processes buy and expedite orders as well as resolve material

shortages and clear MRB on a timely manner.

f) Ensure on-time delivery with vendor to meet requirements.

g) Liaise with vendors and suppliers on shipment and purchasing

related issues.

h) Resolves purchasing problems between department and

vendor.

i) May recommend cost savings proposals including make vs. buy

analysis, alternative sourcing, and supplier evaluation criteria.

j) May assist Manager in development of new contracts, including

but not limited to terms and conditions, pricing, stocking
agreements, etc.
 15. By year 2013 up to the early part of 2016, there were
drastic drop in the sales of products. Because there are a lot of
competitors who also established its business in the Philippines, the
demand for XYZ’s products began to fell. XYZ experienced and is still
experiencing business slowdown from year 2013 up to present year,
as evidenced by XYZ’s Audited Financial Documents including
Balance Sheets and Income Statements for the fiscal years 2013,
2014, 2015, and 2016 and Annual Income Tax Returns for the
mentioned fiscal years (A certified copy of the Audited Financial
Documents is hereto attached as Annex “K”-Certiorari and Annual
Income Tax Returns as Annex “L”-Certiorari) .

16. XYZ made an evaluation of the existing positions and

their effect in the company. The President, Vice President, and
General Manager of XYZ, together with the HR Manager conducted a
Feasibility Study on the existing positions and its effect in the
company (A certified copy is hereto attached as Annex “M”-
Certiorari).

17. Several positions in the company, including DELA

CRUZ’s position became redundant. The employees including DELA
CRUZ was informed of the redundancy through a letter and invited
them to visit XYZ’s HRD in its principal office in Makati.

18. A document entitled “Application for Retirement and

Benefits” (A certified copy is hereto attached as Annex “N”-Certiorari)
was presented to DELA CRUZ, which was signed by him.

19. XYZ was forced to terminate the services of the Private

Respondent because of the economic setbacks the company is
suffering which affected the company’s profitability, and the
continuing rise of its operating and interest expenditures.
Redundancy was part of XYZ’s concrete and actual cost reduction
measures. In fact, XYZ has filed an “Establishment Termination
Report” (A certified copy is hereto attached as Annex “O”-Certiorari)
before the Department of Labor and Employment (DOLE) on March
10, 2016, involving fifteen (15) of its employees, including DELA
CRUZ.

20. Afterwards, XYZ issued to DELA CRUZ two (2) checks (A

certified copy is hereto attached as Annex “P”-Certiorari) respectively
amounting to P750,000 and P41,483.50 as his separation pay.

21. After several months, DELA CRUZ filed this instant action
for illegal dismissal before the Office of the Labor Arbiter on February
3, 2017.

22. For failure to amicably settle, the parties were directed to

submit their respective position papers. Thereafter, the parties were
also given the opportunity to submit their respective reply, and
rejoinder, afterwards, the Labor Arbiter rendered the instant action
dated 24 February 2017.

23. The Labor Arbiter resolved the case in favor of the

Petitioner XYZ on the basis of the opinion that DELA CRUZ’s
dismissal is valid on the ground of redundancy. Hence, DELA CRUZ
appealed the case to the NLRC which decided in favor of the Private
Respondent DELA CRUZ. XYZ CORPORATION filed a timely
Motion for Reconsideration which was denied. Hence, this petition.

IV. GROUNDS FOR THE ALLOWANCE OF THE PETITION

1. Public Respondent NLRC gravely abused its discretion in

reversing the Decision of the Honorable Labor Arbiter in finding that
the Private Respondent DELA CRUZ was illegally dismissed.

2. Public Respondent NLRC gravely abused its discretion in

denying Petitioner’s Motion for Reconsideration without clearly and
specifically explaining the reason for its denial.

V. ARGUMENTS AND DISCUSSION

The NLRC erred in ruling that

the private respondent was
illegally dismissed.

24. Article 283 of the Labor Code provides for the following:

ART. 283. Closure of establishment and reduction of personnel. –

The employer may also terminate the employment of any employee
due to installation of labor-saving devices, redundancy, retrenchment
to prevent losses or the closing or cessation of operation of the
establishment or undertaking unless the closing is for the purpose of
circumventing the provisions of this Title, by serving a written notice
on the worker and the Department of Labor and Employment at least
one (1) month before the intended date thereof. In case of termination
due to installation of labor-saving devices or redundancy, the worker
affected thereby shall be entitled to a separation pay equivalent to at
least one (1) month pay or to at least one (1) month pay for every
year of service, whichever is higher. In case of retrenchment to
prevent losses and in cases of closures or cessation of operations of
establishment or undertaking not due to serious business losses and
financial reverses, the separation pay shall be equivalent to one (1)
month pay or at least one-half (1/2) month pay for every year of
service, whichever is higher. A fraction of at least six (6) months shall
be considered as one (1) whole year;

25. Termination of an employee's services because of a

reduction of work force due to a decrease in the scope or volume of
work of the employer is synonymous to, or a shade of termination
because of redundancy under Article 283 (formerly 284) of the Labor
Code. Redundancy exists where the services of an employee are in
excess of what is reasonably demanded by the actual requirements
of the enterprise. A position is redundant where it is superfluous, and
superfluity of a position or positions may be the outcome of a number
of factors, such as over hiring of workers, decreased volume of
business, or dropping of a particular product line or service activity
previously manufactured or undertaken by the enterprise (Edge
Apparel, Inc. vs. NLRC, G.R. No. 121314, February 12, 1998);

26. The same was mentioned on the leading case of Wiltshire

File Co., Inc. vs. NLRC, AG & P United Rank and File Association vs.
NLRC, and American Home Assurance Co. vs. NLRC.

27. Clearly, redundancy is one of the valid grounds for

dismissal of an employee. Under the Labor Code, redundancy is a
management prerogative.

28. In the case of Asian Alcohol Corporation v. NLRC, the

Supreme Court pronounced that for a valid implementation of a
redundancy program, the employer must comply with the following
requisites: (1) written notice served on both the employee and the
DOLE at least one month prior to the intended date of termination; (2)
payment of separation pay equivalent to at least one month pay or at
least one month pay for every year of service, whichever is higher; (3)
good faith in abolishing the redundant position; and (4) fair and
reasonable criteria in ascertaining what positions are to be declared
redundant.

29. These four (4) requisites are provided in this instant case.
First, there was a written notice served by petitioner XYZ Corporation
to the private respondent DELA CRUZ and to DOLE both dated 10
March 2016, more than a month before the termination of private
respondent DELA CRUZ’s service on 15 April 2016. Second, a
separation pay in an amount of P41,483.50 was provided by XYZ
Corporation to private respondent DELA CRUZ during the termination
of his service from the company. Third, the termination of private
respondent DELA CRUZ’s services was not motivated even by an
iota of bad faith, as petitioner XYZ was forced to terminate private
respondent DELA CRUZ’s services because of the economic
setbacks the company is suffering. Fourth and the last, there was a
feasibility study conducted by XYZ Corporation prior to private
respondent DELA CRUZ’s termination, which can be considered as a
reasonable criteria on their decision.

30. In the case of Morales vs . Metropolitan Bank and Trust

Company, G.R. No. 182475, November 21, 2012, the Court held that:
In implementing a redundancy program, it has been ruled that the
employer is required to adopt a fair and reasonable criteria, taking
into consideration such factors as (a) preferred status; (b) efficiency;
and (c) seniority, among others.

31. In the feasibility study provided as exhibit in this instant

case, it can be noticed that the three (3) factors mentioned, together
with other factors chosen by the petitioner XYZ Corporation are
present in analyzing the positions and its effect in the company.

32. The Honorable Commission failed to consider the

evidence that were presented in support of its claim. It overlooked the
fact that, it was private respondent DELA CRUZ’s himself who
consented the dismissal of his services upon XYZ Corporation’s offer
to provide two (2) checks in the amount of P750,000.00 which was
accepted by the private respondent.

PRAYER

WHEREFORE, in the light of the foregoing, it is most

respectfully prayed of this Honorable Court that the instant Petition be
given due course, and that the assailed NLRC Decision dated 10
April 2017, reversing the Labor Arbiter’s Decision dated 24 February
2017 and the NLRC Decision dated 21 April 2017, denying XYZ
Corporation’s Motion for Reconsideration, be set aside.

Praying for such other reliefs as may be just and equitable

under the premises.

Makati City for the City of Manila, 2 May 2017.

GUARDIAN LAW OFFICES

Counsel for Petitioner
th
9 Flr, Solaris One Building.
Legazpi Village, Makati City
 By:

ABEGAIL P. GUARDIAN
Counsel for Petitioner
S.C. Roll of Attorneys No. 68889
IBP Lifetime Member No. 011921; 04/04/2015
PTR No. 10523456J; 04/04/2015 Makati City
MCLE Compliance No. IV-0013673; 03/11/2015;
Legazpi Village, Makati City
0905-553-6103
abegailpguardian.atty@gmail.com

Copy furnished:

Atty. Florin C. Hilbay

Counsel for Private Respondent
Suite 315-A, Cityland Buiding
Rada St., Legazpi Village
Makati City

National Labor Relations Commission

Third Division
ECC Bldg, 353 Sen. Gil J. Puyat Ave,
Makati, 1209 Metro Manila

VERIFICATION AND CERTIFICATION

FOR NON-FORUM SHOPPING

We, corporate officers of XYZ CORPORATION, duly organized

and existing under the laws of the Republic of the Philippines with
principal office at 1921 Kamagong St., San Antonio Village, Makati
City, Metro Manila, NCR 1203, hereby depose and state that:

1. We are the petitioner in the above-captioned Petition for

Certiorari;

2. We caused the preparation of the foregoing Petition for

Certiorari and that we have read and understood the contents
thereof;

3. The allegations contained therein are true and correct of

our personal knowledge and/or based on authentic records of this
case;

4. We hereby certify that we have not filed or caused to be

filed any other case or proceeding involving the same issues or
subject matter in the Supreme Court, the Court of Appeals, or any
other Court, tribunal or quasi-judicial agency, and to the best of my
knowledge, no such action or claim is pending therein;

5. Should hereafter we learn that there is a similar case

pending before any such Courts, tribunal or agency, we undertake to
report such fact to this agency within five (5) days from such
knowledge.

IN WITNESS WHEREOF, we hereunto affixed our signature on

2 May 2017 at the City of Makati.

GEORGE A. MENDIOLA
Vice-President
XYZ Corporation, Inc.

MANUELITO P. PANGILINAN
General Manager
XYZ Corporation. Inc.

SUBSCRIBED AND SWORN TO before me this 2nd day of

May 2017 at the City of Makati. Affiants, who are personally known to
me, exhibited to me the following documents as competent evidence
of their identity.

NAME CEI Issued on Issued at

George A. Mendiola Driver’s License 16 January 2015 Makati City
No. 1-84-025377
Manuelito P. Pangilinan Driver’s License 14 February 2015 Makati City
No. 1-88-023337

Doc No. 21; LULU T. SY

Page No. 8; Notary Public for Makati City
Book No. 47; Appointment No. 5035345
Series of 2017. Until 31 December 2017
143 Alphaland Condominium
Dela Rosa Ave., Makati City
Roll of Attorneys No. 91223
IBP No. 654077/ 12-31-2014
PTR No. 14434876/ 12-01-2017
MCLE No. 00123; 9/16/16
Commission Serial No.: M-007
Republic of the Philippines }
City of Makati }S.S.

SECRETARY'S CERTIFICATE

KNOW ALL MEN BY THESE PRESENTS:

I, the undersigned Corporate Secretary of XYZ

CORPORATION, INC., a domestic corporation duly organized and
existing under and by virtue of the laws of the Republic of the
Philippines, DO HEREBY CERTIFY that at a special meeting of the
Board of Directors of said corporation held at its principal office in
1921 Kamagong St., San Antonio Village, Makati City, Metro Manila,
Philippines on 7 February 2017, duly called for the
purpose, a quorum being present and acted throughout, the following
resolutions were unanimously adopted, and are now in full force and
effect, to wit:

"RESOLVED, as it is hereby RESOLVED that the

President George A. Mendiola and Vice President
Manuelito P. Pangilinan, be, as they are
hereby authorized, individually and separately, to bring,
file, initiate and institute cases, complaints,
petitions and any and all actions for and in behalf
of, and to protect and vindicate the rights, of the
corporation as to any and all matters affecting its
interests, properties, business, good will, as
well as to defend the corporation in any and all actions
that may be brought or filed against it in any court,
tribunal, administrative or quasi-judicial body or forum,
with full and special power and authority
(a) to cause and authorize the preparation and filing of all
pleadings, motions, memoranda, affidavits, and such
other papers or documents as may be needed in the
course of the trial, (b) to sign and execute all verifications
and certifications of non-forum shopping and other
procedural requirements for pleadings filed on behalf of
the Corporation for any and all cases instituted or to be
 instituted by or against the Corporation;
(c) to appear for and in behalf of the corporation in all
mediation proceedings and judicial dispute resolution
hearings; (d) to enter into amicable settlements or
compromises, (e) to submit to alternative modes of
dispute resolution, (f) to enter into stipulations
or admissions of facts and of documents,
(g) to exercise acts enumerated under Section 2, Rule 18
of the Revised Rules of Court, and (h) to appoint and
secure the services of a legal counsel or attorney-at-
law to represent the corporation in the above-
mentioned actions or proceedings."

"HEREBY GIVING AND GRANTING unto the said persons full

power and authority to do and perform all and every act and thing
whatsoever requisite and necessary to be done in and about the
premises and hereby ratifying and confirming all that the said persons
shall lawfully do or cause to be done by virtue of this Authority."

IN WITNESS WHEREOF, I have hereunto affixed my signature

this 7th day of February, 2017 at San Antonio Village, Makati City,
Metro Manila, Philippines.

ELYSSA CARMI L. MONTECILLO

Corporate Secretary

Attested to by:

SIERRA P.MADRIGAL

LYANNA J. ESTEVEZ

SUBSCRIBED AND SWORN to before me this 7th day of

February, 2017. Affiant ELYSSA CARMI L. MONTECILLO, who is
personally known to me, exhibited to me her Passport ID No.
EC3699626 issued on 24 March 2015 at DFA-Pasay and Driver’s
License No. 1-81-021512 issued on 19 January 2012 at Makati City
as competent evidence of affiant’s identity.

Doc No. 3 ; LULU T. SY

Page No. 10; Notary Public for Makati City
Book No. 42; Appointment No. 5035345
Series of 2017. Until 31 December 2017
143 Alphaland Condominium
Dela Rosa Ave., Makati City
Roll of Attorneys No. 91223
IBP No. 654077/ 12-31-2014
PTR No. 14434876/ 12-01-2017
MCLE No. 00123; 9/16/16
Commission Serial No.: M-007

AFFIDAVIT OF SERVICE

I, EMILIO K. BUSTOS, Filipino, of legal age, single and with

postal address at 2482 Park Avenue, Pasay City 1300, after having
been duly sworn to in accordance with law, hereby depose and state
the following:

I am the liaison officer of the Guardian Law Office, the

representative of the Petitioner in the above-entitled Petition for
Certiorari;

On May 2, 2017, I served the following pleading/paper:

PETITION FOR CERTIORARI

in

XYZ CORPORATION
vs.
NATIONAL LABOR RELATIONS COMMISSION ET
AL.,

pursuant to Sections 3, 5, and 13 of Rule 13 of the Rules of Court by

personal service to the following:

Atty. Florin Hilbay

Counsel for Private Respondent
Suite 315-A, Cityland Buiding
Rada St., Legazpi Village
Makati City
 National Labor Relations Commission
Third Division
ECC Bldg, 353 Sen. Gil J. Puyat Ave,
Makati, 1209 Metro Manila

I am executing this affidavit in order to attest to the truth of all

the foregoing.

City of Makati, May 2, 2017.

EMILIO K. BUSTOS
Affiant

SUBSCRIBED AND SWORN to before me this 2nd day of May,

2017. Affiant exhibited to me his Driver’s License No. 1-81-021512
issued on 15 May 2016 at Makati City as competent evidence of
affiant’s identity.

Doc No. 21; LULU T. SY

Page No. 8; Notary Public for Makati City
Book No. 47; Appointment No. 5035345
Series of 2017. Until 31 December 2017
143 Alphaland Condominium
Dela Rosa Ave., Makati City
Roll of Attorneys No. 91223
IBP No. 654077/ 12-31-2014
PTR No. 14434876/ 12-01-2017
MCLE No. 00123; 9/16/16
Commission Serial No.: M-007