Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

_____ DIVISION

MARVIN D. YCADUYAN,
Complainant;

NLRC LAC NO._______________

-versus- NLRC NCR CASE NO. 08-12818-12

CITY TRADE and ANA PE,

Respondents.
x------------------------------------------------x

MEMORANDUM OF PARTIAL APPEAL

COME NOW, RESPONDENTS, by counsel, and unto the

Honorable Commission, respectfully states:

PRELIMINARY STATEMENT

This is a PARTIAL APPEAL from the decision of the Honorable

Labor Arbiter awarding the payment of 13th month pay to the complainant
computed from August 29, 2009 up to August 31, 2012.

THE PARTIES

Complainant MARVIN D. YCADUYAN, is a Filipino, of legal age,

with address care of No. 8 ABX Building, Del Monte, Quezon City where
he could be served with summons and other processes.

Respondent CITY TRADE. is a trading company organized under

Philippine Laws, with address at 109 N.S. Amoranto Retiro St., Quezon
City, where it could be served with summons, notices and other processes.

Private respondents ANA PE is a Filipino, of legal age, married,

and is one of the officers of respondent company, with office address as
that of respondent entity.

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 STATEMENT OF MATERIAL DATES
AND POSTING OF REQUISITE BOND

This controversy was started by the complainant on August 29,

2012 by filing a complaint before the National Labor Relations
Commission for illegal dismissal and other money claims; (Photocopy of
the said complaint is attached herein as ANNEX “A” and made an integral
part hereof);

The case was eventually raffled to Honorable Labor Arbiter Jonalyn

Gutierrez under NLRC NCR Case No. 08-12818-12;

Mandatory conference thereafter ensued before the Office of

Honorable Labor Arbiter who tried to convince the parties to forge an
amicable settlement for purposes of obtaining industrial peace;

However, when the parties failed to reach any form settlement, the
Honorable Arbiter directed the parties to submit the following pleadings,
viz.:

Complainant’s Position Paper – attached herein as ANNEX B;

Respondent’s Position Paper – attached herein as ANNEX C;
Complainant’s Reply – attached herein as ANNEX D;
Respondent’s Reply – attached herein as ANNEX E;
Respondent’s Rejoinder – attached herein as ANNEX F;

On February 20, 2013, the Honorable Labor rendered a Decision in

the aforementioned case the dispositive portion of which provides:

“WHEREFORE, premises considered, the

complaint is hereby DISMISSED for lack of merit.
Respondent company however is hereby ordered to
pay complainant his 13th Month Pay, subject to the
three (3) year prescriptive period.

All other claims are dismissed for lack of

substantial basis.”

SO ORDERED.

That the said Decision was received by the undersigned counsel on

March 22, 2013 only, thus giving the respondents until April 2, 2013 to
file the instant appeal in conformity with the 2012 NLRC Rules of
Procedure. (Copy of the assailed Decision is attached herein as ANNEX
“G” and made an integral part hereof);

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 Pursuant to the rules governing appeals, the Respondent has posted
with the Commission the required cash bond in the amount equivalent to
the monetary award as stated in the assailed decision.

STATEMENT OF FACTS

As the only issue being appealed here is the award of 13 th month

pay, the respondents will discuss only such matters relevant to said issue
in order to expedite proceedings.

Respondent company is primarily engaged in the construction

supply business. Complainant Ycaduyan is a contractual worker under
its employ with the position of Installer / Helper (“pahinante”). Aside
from giving the respondent a means to earn a decent living, respondent
also provided the complainant a living quarter, owing to the fact that
respondent hails from Tacloban City. The home provided by the
respondent to the complainant is located inside City Square Building, 109
Cordillera St., Amoranto St, Maharlika, Quezon City.

Thus, complainant Ycaduyan wasa stay-in worker and has been

living inside the company premises for many months now.

Contrary to the claim of the complainant, his employment with the

company took effect only on February 1, 2012 and NOT on August 11,
2008, as evidenced by the EMPLOYMENT CONTRACT duly signed by
the said complainant, a copy of which is hereto attached as ANNEX A
and made an integral part hereof.

As aptly found by the Honorable Labor Arbiter in her decision, the

following are the facts of the case:

From the pieces of evidence presented, it is

clear that complainant was not terminated. He was
brought for investigation at the Police station in La
Loma Quezon City when the security guard of
respondent caught inside his bag some steel scraps.
An incident report was made and complainant was
invited for questioning. After that, complainant no
longer went back to work and immediately filed
this complaint on 28 August 2012. Under these
circumstances, it cannot be gainsaid that when
respondent brought complainant to the police
station for further investigation, he was already
terminated. Respondent company was just
protecting its property when it brought
complainant to the police station to be
investigated, considering that he was in flagrante
de licto by its guard. It was admitted that he was a

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 stay-in worker and it was but proper for them to be
on guard of such acts or wrong doings. There was
thus no illegal dismissal to speak of. It is also
noted that stealing of company property can
constitute a serious misconduct as well as a basis
for loss of trust and confidence or a breach of trust,
just causes for terminating one’s employment,
especially so that complainant herein was a stay-in
worker for respondents. (Pages 5 & 6 of the
Decision)

However, respondents take exception to the decision of the

Honorable Arbiter with regard to the award of the 13 th month pay. As
ruled by the Honorable Arbiter:

xxx However, with regard to his 13th Month

Pay, a mandated labor standard benefit, he is
entitled to such benefit as respondent have failed to
show that he was paid such benefit during his
employment with the respondent company. (Page
7 of the Decision).

As stated in the attached “COMPUTATION OF MONETARY

AWARD AS PER DECISION OF L.A. JONALYN GUTIERREZ”, it is
submitted that the Honorable Arbiter erred in awarding the complainant
the total amount of P18,699.20 representing alleged non-payment of 13th
pay month for the period of 8/29/09 – 8/28/12 (35.96 months).

Hence, this PARTIAL appeal.

ISSUE

The lone issue being raised herein is:

WHETHER OF NOT THE HONORABLE ARBITER ERRED IN

AWARDING 13TH MONTH PAY TO THE COMPLAINANT
COMPUTED FROM AUGUST 29, 2009 UP TO AUGUST 28, 2012.

DISCUSSION

In the decision, the Honorable Arbiter, in granting the award of 13 th

month pay in favor of the complainant, reasoned out that said complainant
“is entitled to such benefit as respondent have failed to show that he was
paid such benefit during his employment with the respondent company.”
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 There is no question that with regard to the payment of legally
mandated benefits such as the aforesaid 13 th month pay, it is incumbent
upon the employer to present evidence of compliance thereto, the reason
being the employers are the ones who keeps records of such payments.

However, it must be pointed out that in labor cases, the quantum of

proof necessary is SUBSTANTIAL EVIDENCE, or such amount of
relevant evidence which a reasonable mind might accept as adequate to
justify a conclusion. Complainants have the DUTY to prove by
substantial evidence their own positive assertions. (ANTIQUINA vs.
MAGSAYSAY, G.R. No. 168922; April 13, 2011)

As ruled by the Supreme Court in the recent case of BITOY

JAVIER vs. FLY ACE CORPORATION, G.R. No. 192558, February 15,
2012:

Although Section 10, Rule VII of the New

Rules of Procedure of the NLRC allows a
relaxation of the rules of procedure and evidence
in labor cases, this rule of liberality does not mean
a complete dispensation of proof. Labor officials
are enjoined to use reasonable means to ascertain
the facts speedily and objectively with little regard
to technicalities or formalities but nowhere in the
rules are they provided a license to completely
discount evidence, or the lack of it. The quantum
of proof required, however, must still be satisfied.
Hence, “when confronted with conflicting versions
on factual matters, it is for them in the exercise of
discretion to determine which party deserves
credence on the basis of evidence received, subject
only to the requirement that their decision must be
supported by substantial evidence.” [citing
Salvador Lacorte v. Hon. Amado G. Inciong, 248
Phil. 232 (1988), Gelmart Industries [Phil.] Inc. v.
Leogardo, Jr., 239 Phil. 386 (1987), emphasis
ours.]

In his Position Paper, the complainant claimed that he started

working with the company sometime on August 11, 2008. Thus:

1. Complainant, MARVIN D.
YDACUYAN, was hired as a “INSTALLER” by
respondent CITY TRADE on August 11, 2008, after
the usual interview and pre-employment processes,
he was told that he is accepted and stay-inn but
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 was not provided any written contract for his
employment. (Page 2 thereof)

However, the complainant FAILED to substantiate his bare claim

that he started working with the respondent company on August 11, 2008.
NO EVIDENCE whatsoever was presented by the aforesaid complainant
to prove said allegation.

Without any evidence, such BARE ALLEGATIONS are clearly

BEREFT of any merit. As CONSISTENTLY ruled by the Supreme
Court.:

“Certainly, elementary as a hornbook

doctrine is the evidentiary rule in our jurisdiction
that bare allegations do not constitute evidence at
all, but the same are self-serving at best (Tuason v.
Court of Appeals 241 SCRA 295 (1995); “Bare
allegations, unsubstantiated by evidence are not
equivalent to proof, under the Rules of Court”
(Manzano v. Perez 362 SCRA 430 (2001); “An
allegation in pleading is not evidence, but that it
has to be proved by evidence (Reyes v. CA 383
SCRA (2002); “Allegations must be proven by
sufficient evidence –mere allegations is not
evidence (Ramoran v. Jardine Carb Life Insurance
Co. Inc., 326 SCRA 208 (2000);

On the contrary, complainant’s employment with the respondent

company took effect only on February 1, 2012, as evidenced by his
EMPLOYMENT CONTRACT dated January 7, 2012 (ANNEX A) duly
filled-up and signed by the complainant herein.

The date as stated therein clearly indicates that his employment

took effect only on “February 1, 2012”. More importantly, said
employment contract was DULY SIGNED by the complainant herein
which is tantamount to his ACCEPTANCE of the terms and conditions of
his employment with the respondent company, taking effect only on
February 1, 2012, the date indicated in the aforesaid contract. Thus:

1. Ang iyong kontrata sa kumpanya at mag uumpisa sa Feb.

1, 2012 at matatapos sa August 31, 2012.

It must be noted that the surname “Diloy” as used by the

complainant is his middle name.
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 Accordingly, it is submitted the award of the 13th month pay by the
Honorable Arbiter reckoned from August 29, 2009 is contrary to the
effectivity date of complainant’s employment with the respondent
company which took effect only on February 1, 2012 as clearly stated in
the aforesaid Employment Contract. (ANNEX A)

At any rate, it must be emphasized that the respondent company has

duly complied with all its legal obligation with regard to the payment of
just wages and other benefits to the complainant, including the payment
of 13th month pay.

Respondent apologizes for the delay in the submission of the

aforesaid documentary evidence as the same was already thought to be
lost but was found only recently after a diligent search of the company
records.

In closing, the High Court has emphasized that “the constitutional

policy to provide full protection to labor is not meant to be a sword to
oppress employers. The commitment of this Court to the cause of labor
does not prevent us from sustaining the employer when it is in the right.
We should always be mindful that justice is in every case for the
deserving, to be dispensed with in the light of established facts, the
applicable law, and existing jurisprudence.” (MAGSAYSAY MARITIME
CORPORATION vs. NLRC; G.R. No. 186180, March 22, 2010)

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of the

Honorable Commission to render judgment in favor of the respondents by
setting aside the decision of the Honorable Labor Arbiter with regard to
the award of 13th month pay in the amount of P18,699.20 to the
complainant for being contrary to evidence.

Other just and equitable remedies are likewise prayed for.

Quezon City, April 1, 2013.

ATTY. PEARLITO B. CAMPANILLA

Suite B 2nd Floor Overland Park Bldg.,
No. 245 Banawe St. cor. Quezon Ave., Q.C
PTR 772308 01-18-13 QC
IBP Life 010564 2-3-12 Pasig City
Roll No. 37522
MCLE Compliance No. III - 0015235
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Republic of the Philippines )
Quezon City )

AFFIDAVIT OF SERVICE

I, MARILOU VERGULA, of legal age, Filipino, after having been

duly sworn to in accordance with law deposes and states:

That I am an authorized representative of the appellant in the above

entitled case. That on _______________________, I served a copy of the
following pleading:

MEMORANDUM OF PARTIAL APPEAL

BY REGISTERED MAIL:
ATTY. JOSUE ENGANO
535C Drueco Apt.
Gen. Luis St., Nova., QC

That a copy of the above pleading was sent to the above

party/parties by registered mail due to severe time constraints.

________________________
Affiant

SUBSCRIBED and sworn to before me a Notary Public for and in

Quezon City, affiant is known personally to this notary public.

Doc. No. _____;

Page No. _____;
Book No. _____;
Series of 2013.