REPUBLIC OF THE PHILIPPINES DEPARTMENT OF LABOR AND EMPLOYMENT NATIONAL LABOR RELATIONS COMMISSION REGIONAL ARBITRATION BRANCH NO.

V NAGA CITY DRAGON HAULING SERVICES., And RHYAN AGNAS Respondent-appelants, -versusEVA BREBONERIA and PEDRO BAESA Complainant-appellees. x-------------------------------------------------x

MEMORANDUM ON APPEAL
RESPONDENT-APPELLANTS, DRAGON HAULING SERVICES., And RHYAN AGNAS by undersigned counsel, to this Honorable Commission, respectfully files this Memorandum on Appeal, and in support thereof, states: Timeliness of the Appeal 1. On January 17, 2008, a Notice of Judgment/Decision on the above

entitled case was issued by this Honorable Commission thru Labor Arbiter Villanueva Criselda which was received by respondent-appellants counsel on March 4, 2008. A copy of the Decision is hereto attached as Annex A. Thus, the instant Memorandum on Appeal is being filed with the reglamentary period of 10 days from the receipt of the challenged Decision. The Parties 2. Respondent-appellant Dragon Hauling Services., is a corporation duly

organized and existing under and by virtue of Philippine Laws with office address at Elias Angeles St. Naga City. Respondent-appellant Rhyan Visitacion is the President of Dragon Hauling Searvices and may be served with notices on the same given address. 3. Complainant-appellee Eva Breboneria of legal age, Filipino and with

address at Agdangan BAao, CAmarines Sur, where he may be served notices of this 1

Honorable Commission. Complainant-appellee Pedro Baesa is of legal age, Filipino and with address at Pawili Pili Camarines Sur where he may be likewise be served notices by this Honorable Commission. Nature of the Case 4. The instant case is a complaint for illegal dismissal and illegal

suspension with prayer for full backwages, damages and attorneys fees filed by complainant-appellees against respondent-appellant Dragon Hauling Services. The

complainant-appellees likewise impleaded respondent-appellant Rhyan Visitacion in his personal capacity as the president of respondent-appellant Dragon Hauling Services. 6. After the filing of the case, the parties were required to attend the

mandatory conciliation conference. However, the parties failed to arrive at an amicable settlement and thus, were ordered to submit their respective pleadings. 7. On February 17, 2008, the Honorable Labor Arbiter rendered a Decision

the dispositive portion of which states: WHEREFORE, premises considered, judgment is hereby rendered as follows: 1. The dismissal of complainant Eva Breboneria and the

suspension of complainant Pedro Baesa are illegal. 2. The respondents are ordered to reinstate the complainant

Eva Breboneria to his former position without loss of seniority rights. The reinstatement aspect of this Decision is immediately executor and respondents are directed to submit a report of compliance within ten (10) calendar days from receipt hereof 3. The respondents are ordered to pay complainants Eva

Breboneria the total amount of One Hundred Forty One Thousand One Hundred Seventy One Pesos and 68/100 (Php141,171.68) representing his full backwages computed as of the date of this Decision. 4. The respondents are ordered to pay the complainant Pedro 2

Baesa the amount of P2,373.00 representing his salary during the period of his suspension. 5. The respondents are ordered to pay complainants attorneys

fees of ten percent (10%) All other claims are dismissed for lack of merit. SO ORDERED 8. From the above-quoted Decision, respondent-appellants are now

appealing to this Honorable Commission.

Statement of Facts 9. Complainant-appelle Pedro Baesa was hired on January 10, 2000 as a

truck driver. On the other hand, complainant-appellee Eva Breboneria was hired on October 1, 1992 as a Accounting clerk. 10. In order to maintain and improve the performance of the employees of

respondent-appellant Dragon Hauling, the company, sometime in 2006, adopted a measure wherein the performance of each employee shall be reviewed by their peers and supervisors. This is a periodic and regular performance evaluation. Office staffs are to be evaluated quarterly while other workers, including the complainant-appellees, are to be evaluated on a monthly basis. This evaluation is conducted by the Human Resource Department of respondent-appellant through performance review carried out by the employees leadman (supervisor) and department manager. This periodic and regular performance review is likewise included in Company Policy on Performance Evaluation, a copy of which is hereto attached as Annex B. Moreover, the standards by which such performance reviews are prepared were made known to all the employees of the company. The disciplinary measures/actions for failing the evaluation are likewise included in the aforesaid performance evaluation. 11. Additionally, in order to improve performance from the employees,

respondent Dragon Hauling issued YAM-04-092 dated October 1, 2004 and YAM-06208 dated November 22, 2006. Copies of the aforesaid Memoranda are hereto attached 3

as Annexes C and D respectively.

YAM-04-092 is an administrative

memorandum to the employees dealing with absences, the procedure in case of authorized absences as well as the penalties for incurring unauthorized absences. 12. On February 13, 2007, respondent-appellant Dragon Hauling furnished

complainant-appellee Zamora with a Memorandum with reference no YAM-06-107 informing him that his performance for the period covering January 2007 was unsatisfactory and that he failed the working standard and/or required company expectation. Out of a possible score of 100%, complainant received a score of 50%. The passing rate was 75%. Pursuant to the above-mentioned memoranda, respondent Dragon Hauling requested the complainant to improve his performance and further informed him that the letter-memorandum serves as a warning for him. Complainant Breboneria duly received and acknowledged the letter-memorandum as evidenced by his signature appearing thereon. A copy of the letter-memorandum with reference

number YAM-06-107 is hereto attached as Annex E. Additionally, the performance report which was the basis of the letter warning is hereto attached as Annex E-1. 13. However, instead of improving his performance, complainant-appellee

persisted on his ways. In fact, during the same month of February 2007, complainantappellee incurred four (4) absences attendance in violation of the above-quoted Memorandum YAM-04-92. Because of this, respondent-appellant had no choice but to issue him a memorandum dated March 6, 2007 reminding him to improve his performance, otherwise, disciplinary actions will be imposed on the complainant. A copy of the aforesaid letter-warning is hereto attached as Annex F while complainants time card showing his tardiness for the month of February is hereto attached as Annex F-1. 14. Complainant-appellees performance for the month of March continued

to be below company standards and expectations. Again, for the month of March, the Performance Evaluation Report for the complainant-appellee was below the passing rate of 75%. Pursuant to the Company Policy on Performance Evaluation, a worker who fails for the second time shall be subjected to a one-week suspension. Thus, on 4

May 7, 2007, respondent-appellant sent complainant-appellee a memorandum informing him that he failed the company evaluation for the second time and thus, will be subjected to a one-week suspension pursuant to company policy. A copy of the aforesaid letter is hereto attached as Annex G while the Performance Evaluation Report of the Complainant is attached as Annex G-1. 15. Moreover, in a blatant disregard of the earlier warning and reminder

given him regarding his tardiness and absenteeism and respondent-appellants reminder regarding the strict implementation of Memorandum YAM-06-208 with respect to absences and tardiness, complainant-appellee, in the month of April 2007, incurred ten (10) days of absences without leave. As a result, respondent-appellant issued complainant-appellee another memorandum dated May 8, 2007, a copy of which is hereto attached as Annex H. The time card of the complainant for the month of April is likewise attached as Annex H-1. 16. During the month of May 2007, complainant-appellants performance did not improve as evidenced by his Performance Evaluation Report for the said month wherein he got another 73%. Pursuant to the Company Policy on Performance

Evaluation (Annex B), a worker who has failed the company evaluation for the third time shall be subjected to the disciplinary measure of dismissal. Thus, on June 8, 2007, respondent-appellant sent complainant-appellee a memorandum informing him that he again failed in his evaluation report and requiring him within 24 hours to submit an explanation while the penalty of termination should not be imposed upon him. A copy of the aforesaid June 8, 2007 letter is hereto attached as Annex I and complainants Performance Evaluation Report is attached as Annex I-1. 17. Despite the notice given to the complainant-appellee, which he duly

received as evidenced by his signature thereon, complainant-appellee failed to submit any explanation to the June 8 memorandum of the respondent-appellant. Thus, on June 16, 2007, respondent-appellant Dragon Hauling Services sent complainant-appellee a notice of termination on the grounds of failure to obtain a passing score in the Performance Evaluation Report and numerous absences and tardiness. A copy of the 5

aforesaid letter is hereto attached as Annex J. 18. On the other hand, On February 13, 2007, respondent-appellant Dragon

HAuling furnished complainant-appellee Pedro Baesa with a Memorandum with reference no YAM-06-107 informing him that his performance for the period covering January 2007 was unsatisfactory and that he failed the working standard and/or required company expectation. Out of a possible score of 100%, complainant-appellee received a score of 74%. The passing rate was 75%. Pursuant to the above-mentioned

memoranda, respondent-appellant Dragon Hauling requested the complainant to improve his performance and further informed him that the letter-memorandum serves as a warning for him. Complainant-appellee Perdo Baesa duly received and

acknowledged the letter-memorandum as evidenced by his signature appearing thereon. A copy of the letter-memorandum with reference number YAM-06-107 is hereto attached as Annex K. Additionally, the performance report which was the basis of the letter warning is hereto attached as Annex K-1. 19. During the following months, complainant-appelee continued to incur

unauthorized absences. For the month of February, complainant-appellee incurred a total of six (6) days absences, for the month of March, four (4) days absences, for the month of April, six (6) days absences and for the month of May, five (5) days absences. This is in utter violation of the above-referred Yam 06-208 regulating the absences of respondent-appellants employees. Because of this, Respondent-appellant issued

Memorandum YHR-07133, a copy of which is hereto attached as Annex L, reminding complainant to improve his attendance. Copies of the time card of

complainant for the aforementioned months are likewise attached hereto as Annex L1 to L-4. 20. Moreover, complainant-appellee, for the month of May 2007, again failed in his monthly performance evaluation. For his performance evaluation for May, Respondent-appellant informed

complainant-appellee got a score of 73.20%.

complainant-appellee of his failure to satisfactory pass the performance evaluation through a letter dated June 8, 2007, a copy of which is hereto attached as Annex M. 6

The performance evaluation report, which is the basis of the letter is hereto attached as Annex M-1. 21. Based on the company policy on regarding performance evaluation, a

failure to pass the said evaluation for the second time shall subject the employee to a penalty of suspension. Thus, respondent-appellant merely complied with the said

Memorandum when it informed the complainant-appellee that for his failure to pass the performance evaluation, he shall be suspended beginning June 18-23, 2007. 22. instant action. On June 20, while serving his suspension, complainant-appelle filed this It is noteworthy to state that after serving the suspension, complainant-

appellee has resumed his job in the company. Assignment of Errors I. The Honorable Labor Arbiter committed reversible error when it held that there was no valid ground for the dismissal of complainant-appellee Eva Breboneria and the suspension of complainant-appellee Perdo Baesa. The Honorable Labor Arbiter committed reversible error when it held that there was no evidence on record to support the dismissal of complainant-appellee Breboneria and the suspension of complainant-appellee Baesa. The Honorable Labor Arbiter committed reversible error when it held that the penalty of dismissal should not have been imposed upon complainant-appellee Breboneria. The Honorable Labor Arbiter committed reversible error when it held that the complainant-appellees are entitled to their monetary claims. Discussion/Arguments The Honorable Labor Arbiter committed reversible error when it held that there was no valid ground for the dismissal of complainant-appellee Zamora and the suspension of complainant-appellee Baesa. 23. It is established beyond doubt that the employer has the right to

II.

III.

IV.

promulgate its own rules and guidelines in furtherance of its management prerogatives. The employers right to manage its own employees has been recognized in numerous

cases decided by the Supreme Court. In San Miguel Brewery Sales vs Ople1, The Court held that 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 work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, layoff of workers and the discipline, dismissal and recall of workers. 24. Management has the right to adopt or devise means to ensure that its

employees are performing their duties with their utmost abilities. In furtherance of this right, management has likewise the prerogative to instill among its employees and to impose reasonable penalties, including dismissal, on erring employees, pursuant to company rules and regulations. This was the ruling of the Supreme Court in San Miguel Corporation vs NLRC2. 25. In the case at bar, in order to ensure performance on the part of its

employees, respondent-appellantDRagon Hauling adopted its Company Policy on Performance Evaluation. It is under respondent-appellant YYDs right and prerogative to adopt the said measure under its management prerogative. Moreover, at the time complainant-appellees failed in the said evaluation, the policy has been in force and effect for quite sometime. Complainant-appellees were fully aware of this policy including the penalties should any employee fail to pass the performance evaluation. 26. In the case of complainant-appellee Breboneria, he failed the

performance evaluation for three (3) months, to wit, on the months of January, March and April 2007. Complainant-appellee had been given ample warning as evidence by the letters dated February 13, 2007 and May 7, 2007. Respondent-appellant Dragon Hauling was not remised in reminding complainant-appellee that he failed the performance evaluation and that he should improve his performance, otherwise, stiffer penalties will be imposed upon him.
1

These letters were duly received by the

G.R. No. 53515, February 8, 1989 G.R. No. 87277 May 12, 1989

complainant-appellee and by his failure to contest or question the same, we could safely conclude that he does not question or contest these evaluations. The last straw came when he again failed his performance evaluation for the month of May 2007. Coupled with complainant-appellees unrepentant attitude, which included

unauthorized absences and tardiness during the intervening period, respondentappellant Dragon Hauling had no other option but to impose the appropriate penalty as contained in the Company Policy on Performance Evaluation. At this point, it should be pointed out that based on the said policy, a third failure shall be penalized by dismissal. Complainant-appellees first failure resulted in a written warning while his second infraction merited a suspension. Thus, respondent-appellant Dragon Hauling was only following what was stated in the adopted policy on performance evaluation. 27. Complainant-appellee could not object to the result of the policy

evaluation, the same having been made by his immediate supervisor and group manager, who are in the position to observe his work performance. 28. The failure of the complainant-appellee to have a satisfactory rating in

the periodic performance evaluation left respondent-appellant with no other option but to impose the penalty of dismissal. As held in Shoemart Inc. vs NLRC3, it will be highly prejudicial to the interest of the employer (respondent) to impose on him the services of an employee who has shown to be guilty of the charges that warranted his dismissal. It will demoralize the rank-and-file if the undeserving, if not undesirable, remains in the service. 29. However, the Honorable Labor Arbiter, in its Decision, held that there

was no basis whatsoever for the dismissal of complainant-appellee Breboneria. It held that based on the evaluation submitted by the respondent-appellant, the performance of the complainant-appellee appears to be satisfactory considering that for the past rating periods, complainant-appellee got an almost perfect score of 5 as far as the job knowledge is concerned as well in the work attitude category. The Honorable Labor Arbiter thus concluded that it cannot be said that complainant-appellee Zamora
3

G.R. No. 74229, August 11, 1989

is gross and habitual neglect of his duties nor is he inefficient in the performance of his job. 30. Nonetheless, the Honorable Labor Arbiter failed to consider other

factors in the over-all evaluation of the employee. An examination of the evaluation report would show that complainant-appellee was doing poorly in other aspect of the evaluation process, particularly in attendance and punctuality. In the said criteria, complainant-appellee, in the three rating periods, failed miserably. This is further boosted by the fact that during these rating period, particularly in the month of February, he incurred four days of tardiness and in the month of April, he incurred ten (10) days of absence without leave. These tardiness and absences were in direct violation of the company rules and regulations regarding absences. Thus, this was reflected in his evaluation report. These absences and tardiness were properly

documented when his time card were submitted in evidence. Interestingly, these were not even questioned by the complainant-appellee. 31. The fact that complainant-appellee has a good rating with respect to

job knowledge and work attitude does not necessarily mean he is performing his job well. As in this case, complainant-appellee only performs his job well whenever he is present or otherwise reports on time. 32. In rating the performance of the employee, all the aspects of

employment should be considered, specially the critical criteria including attendance and punctuality. For even if an employee is fully knowledgable in his job, but if he does not report on time or failed to report for work, then, the performance of the employee remains undesirable. 33. The evaluation report, coupled with the time card of the complainant-

appellee would clearly show that he was a habitual absentee and/or arrives at work late. This critical factor was considered in the over-all evaluation of the complainantappellee. 34. Unfortunately, the Honorable Labor Arbiter failed to consider this and

instead concluded that the rating system of respondent-appellant was defective. 10

Despite admitting in its Decision that complainant-appellees attendance rating was poor, The Honorable Labor Arbiter failed to appreciate the importance of such fact. The Honorable Labor Arbiter failed to appreciate that even during the time

complainant-appellee was performing poorly based on his performance evaluation, instead of endeavoring to improve his performance, complainant-appellee incurred four (4) tardiness in the month of February and absented himself for ten (10) days in the month of April in violation of the rules of the company. Complainant-appellees act of going on absence without official leave constitutes serious misconduct as well as gross and habitual neglect of his duties which is a valid and just grounds for the termination of his services. 35. The Supreme Court in the case of Filipro vs Honorable Blas Ople et. al. 4

has recognized the importance of prior notice in cases of absences. Thus it held that: While it is not generally possible for an employee to anticipate when he will be ill or have to attend to some family problem or emergency, and be able to give prior notice to his employer, he should give such notice when he will be absent for some other cause, such as when he will attend to some other business elsewhere, for such engagements can be properly scheduled by him so as not to interfere with his regular working hours and disrupt the operations of the association in his particular area of assignment. Without prior notice of the employees absence, the association is not afforded enough time to get temporary replacement for him. The association had just cause to discipline him on account of his habitual absenteeism. 36. The Supreme Court had already upheld the validity of dismissing an employee by reason of tardiness or absenteeism. In the case of Sajonas vs NLRC 5, the Court made the following pronouncement: Generally, tardiness and absenteeism, like abandonment are form of neglect of duty. Acts of insubordination, coupled with habitual tardiness, are sufficient causes for petitioners dismissal, especially considering the fact that the employees involved were not mere rank and file employees but supervisors who owed more than the usual fealty to the organization and were therefore expected to adhere to its own rules its exemplary manner.
4

G.R. no. 72129 February 7, 1990 G.R. No. 49286 may 29, 1989

11

37.

Thus, contrary to the findings of the Honorable Labor Arbiter, there

was more than sufficient grounds for the dismissal of complainant-appellee Breboneria and that his performance evaluation was a true reflection of his performance. 38. On the otherhand, the Labor Arbiter summarily rejected the claims and

defense of respondent-appellant with respect to the claims of complainant-appellee Baesa. The Honorable Labor Arbiter held that respondent-appellant failed to present evidence in support of the evaluation report. 39. Nevertheless, the records of the case is replete with evidence showing

that complainant-appellee likewise failed to make a passing score in the evaluation report. 40. Again, the Honorable Labor Arbiter failed to appreciate the fact that

complainant-appellee is a habitual absentee and reports to work late. During the time of the evaluation period wherein he got a failing marks, complainant-appellee was absent for six (6) days in the month of March, four (4) days during the month of April and five (5) days during the month of May. These absences are all unauthorized absences. This fact is reflected in his evaluation report wherein he got a poor rating in the attendance and punctuality criteria. The time card of the complainant-appellee was duly attached to the position paper of the respondent-appellant. 41. Therefore, there is more than sufficient ground for the dismissal of

complainant-appellee Breboneria and the suspension of complainant-appellee Baesa.

12

The Honorable Labor Arbiter committed reversible error when it held that there was no evidence on record to support the dismissal of complainant-appellee Breboneria and the suspension of complainant-appellee Baesa.

42.

The Honorable Labor Arbiter erred when it held that there was no

sufficient evidence on record to support the dismissal of complainant-appellee Breboneria and the suspension of complainant-appellee Baesa. 43. As discussed above, the respondent-appellant has submitted and

attached to its position paper the evaluation reports of the two complainant-appellees. These evaluation reports clearly show that they failed their regular and periodical performance evaluation. Largely because they have poor records with respect to

attendance and punctuality. The poor performance of the complainant-appellees with respect to attendance and tardiness was further supported by the submission of the daily time record cards of the complainant-appellees. It is worthy to point out at this stage that nowhere in the pleadings filed before the Labor Arbiter that the complainantappellees questioned the validity of these time cards. Neither the complainant-

appellees likewise questioned the validity of the memorandum issued by the respondent-appellant dealing with unauthorized absences and tardiness. 44. Memorandum YAM-04-92 was a valid issuance of respondent-appellant

in its exercise of its managerial prerogative. The aforesaid Memorandum deals precisely with absences and tardiness for the company has been observing that these violations affects the production schedule of the company. The complainant-appellees, just like other employees were duly notified of these company policies. But despite their knowledge of this policy, the complainant-appellees failed to comply with these valid and reasonable directive of the company. Thus, it is only justifiable on the part of the respondent-appellant to strictly enforce the said memorandum. The Honorable Labor Arbiter committed reversible error when it held that the penalty of dismissal should not have been 13

imposed upon Breboneria.

complainant-appellee

45.

The Honorable Labor Arbiter further ruled that even assuming that

complainant-appellee Breboneria is penalized in accordance with the companys prerogative to promulgate its own rules and regulations and the right to dismiss its employees, yet such right is not absolute. The Labor Arbiter further held that the power to dismiss must be tempered with compassion and understanding. 46. There is no argument that not all violations must be meted the penalty

of dismissal. However, the Honorable Labor Arbiter failed to appreciate the fact that, in the case of complainant-appellee Breboneria, this was not his first violation. He was duly warned by respondent-appellant and was requested to improve his performance. However, in demonstrating his incorrigibility, instead of improving his performance, he even committed violations of the company policies.

47.

Indeed, it is true that when the law angles the scales of justice in favor

of labor, it is but as recognition of the inherent economic inequality between labor and management. However, the law in protecting the rights of the employees authorizes neither the oppression nor self-destruction of the employer (Pacific Mills vs Alonzo, 199 SCRA 617 [1991]). 48. Additionally, we must be reminded of the pronouncement of the

Supreme Court in the case of Phil. Geothermal Inc vs NLRC, 236 SCRA 371 xxx There may be cases where the circumstances warrant favoring labor over the interests of management but never should the scales of justice be so tilted if the result would be injustice to the employer. Justia nemini neganda est --- justice is to be denied to none. 49. It bears stressing that the law, in ensuring protection of the rights of

employees, does not contemplate measures oppressive to the employer and pursuant to this principle, it was ruled in the case of Allied Banking Corporation vs. National Labor Relations Commission, 258 SCRA 724, that: While social justice has an inclination to give protection 14

to the working class, the cause of the labor sector is not upheld at all times as the employer has a right entitled to respect in the interest of simple fair play. 50. Indeed, the penalty of dismissal meted out to complainant-appellee is

just appropriate under the circumstances for the respondent-appellant could not be reasonably expected to retain in its payroll an employee who frequently flaunts his violation of company policies and jeopardized the production schedule by being habitually absent and late for work.

The Honorable Labor Arbiter committed reversible error when it held that the complainant-appellees are entitled to their monetary claims.

51.

Complainant-appellees are not entitled to backwages 13th month pay and

service incentive leave pay as the antecedent facts of this case would reveal that complainant-appellees were dismissed and suspended for just causes. This is pursuant to Rule I, Book VI, Sec 7 of the Implementing Rules and Regulations of the Labor Code as amended. It provides that Rule I Book VI Sec 7. Termination of employment by employer - The just causes for terminating the services of an employee shall be those provided in Article 282 of the Code. The separation from work of an employee for a just cause does not entitled him to the termination pay provided in this Code. x x x (underscoring provided) 52. A dismissal for a just and valid cause severs the employer and employee

relation. It does not entitle the dismissed employee to separation pay nor to payment of backwages. (Samson Alcantara, Philippine Labor and Social Legislation, annotated Volume I, Revised (1994) Edition, p. 632). The herein complainant-appellees are guilty of disobedience, gross and habitual neglect of duties. Likewise losing his right to reinstatement and for the payment of backwages pursuant to Article 279 of the Labor 15

Code of the Philippines as amended, because an employee who had been validly dismissed from work shall not be entitled to reinstatement nor be given his backwages. PRAYER WHEREFORE, premises considered, it is respectfully prayed of this Honorable Commission that the Decision dated September 30, 2006 be SET ASIDE and a new resolution be issued dismissing the instant case for lack of merit. Other reliefs just and equitable under the circumstances are likewise prayed for. Naga City November 11, 2008.

ANGELYN VISITACION LAW OFFICES Counsel for the Respondent-Appellants Zone 1, Igualdad Naga City By: PTR No.00045442; 01/09/08; NAGA CITY IBP No. 737562; 01/11/08; PPLM Attorneys Roll No. 4455629 MCLE Compliance No. II-0007670

16