Tuesday, July 4, 2017

Labor case; MOTION FOR PARTIAL RECONSIDERATION (NLRC division level); sample.

(In Re: DECISION, Dated April 7, 2017)

The COMPLAINANT-APPELLANT-MOVANT, xxx (“Movant”), pro se, respectfully states:

1. PURPOSE OF THIS PLEADING. – This motion seeks the RECONSIDERATION of the DECISION, dated April 7, 2017, of the First Division of the Honorable Commission. 

2. MATERIAL DATES. – A copy of the questioned Decision was received by the movant on April 22, 2017. His tenth day[1] to file this motion for reconsideration would expire today, May 2, 2017. This motion will be filed today, May 2, 2017, with this Commission via registered mail for lack of material time. 

3. QUESTIONED DECISION. – The subject matter of this pleading is DECISION, dated April 7, 2017, issued by the First Dvision of this Commission.

4. ADOPTION CLAUSE. – The movant adopts into this motion, by incorporation and reference, his allegations of facts and law and relevant arguments stated (a) in his Position Papers filed with the Labor Arbiter a quo, (b) in his Appeal Memorandum filed with this Commission, and (c) in the supporting documents attached thereto.

5. GROUNDS FOR THE MOTION FOR RECONSIDERATION. – It is the humble submission of the movant that this Commission erred (“palpable and patent errors”)[2] in holding:

(a) That the movant had voluntarily resigned;

(b) That his exit interview was allegedly voluntary and valid;

(c) That the movant had freely expressed his gratitude to the company as part of his alleged voluntary resignation;

(d) That as an alleged college graduate of Radio Mechanics degree the movant knew the alleged voluntariness of his resignation;

(e) That the late filing by the movant of his complaint proves that he was not forced to resign;

(f) That the respondents did not have the chance to commence an administrative proceeding against the movant because he had earlier voluntarily resigned;

(g) That there was no proof that the respondents treated the movant like a prisoner inside the human resource department on the day he resigned;

(h) That there was no proof that the movant had asked that he be given a few days to think over the suggested resignation;

(i) That the movant was not entitled to unpaid salaries;

(j) That the movant was not entitled to 13th month pay; and 

(k) That the movant had an outstanding obligation of P35,059.00.



· The movant did not voluntarily resign. He was forced to resign. 

· He is a victim of constructive dismissal without due process of law. 

· The movant did not freely express his gratitude to the company in his forced resignation letter. 

· The exit interview was not voluntary and its documentation was falsified by the human resource staff of the respondents. 

· The movant is not a graduate of Radio Mechanics (college degree). He is a high school graduate. 

In re: the foregoing error, please note the following facts:

(a) The effectivity date of the allegedly voluntary resignation letter was May 8, 2015.

(b) It was the same day the movant was dismissed.

(c) The letter was dated on the same day.

(d) It was handwritten, a sign that it was hurriedly done and under pressure.

(e) It was not computerized or typewritten, another sign that it was hurriedly done. 

(f) It did not comply with the usual notice period of thirty days under the Labor Code or one hundred twenty days under the internal rules of the company as per the contract of the movant.

(g) The movant was forced by respondents to put the date May 8, 2015 as the date of the letter or resignation and the date of effectivity thereof, a sign that respondents hurriedly dismissed the movant. 

(h) If it was truly a case of a formal and professional voluntary resignation the movant would have prepared and filed his typewritten or computerized formal resignation letter way in  advance of the date of effectivity thereof in compliance with the terms and conditions of his contract of employment and the provisions of the Labor Code.

(i) The movant was still on active duty on May 8, 2015. He was serving his duty for that day when he was forced to resign before his shift for that day had ended. 

(j) It was illogical and against the ordinary course of human reason and experience for the movant to resign abruptly on May 8, 2015 knowing that in doing so he would sacrifice (a) his career without a clear and ready prospect of a new or ready employment in replacement of his current job, (b) his loyalty bonuses and other employee benefits, (c) the support, sustenance, maintenance, education, and health of his wife and children, (d) the financial obligations or debts he had to pay to his creditors, and (e) his character and reputation as a family man by reason of the embarrassing state of joblessness.

(k) The documentation of the exit interview was falsified by the human resource staff assigned by respondent Angio Xxx and under the supervision of the latter.

(l) The movant was told to fill up the top part of the exit interview form and to sign it at the lower part thereof. He was told to leave blank the middle part thereof which contained the reasons for the alleged resignation.

(m) The middle part thereof was filled up by the assigned staff of respondent xxx. He was the one who wrote the alleged reasons: “To rest and spend time with the family”.

(n) Who in his right mind would stop earning a decent living to and in the process intentionally starve his own family and deprive them of the needed support and sustenance simply “to rest and spend time” with them? It is a ridiculous scenario. The Commission failed to see the incredibility of such a poor logic.

(o) As to the clearance and release form, the assigned staff of respondent Xxx told the movant to fill up the top portion thereof and to sign the lower part thereof on the very day he was forced to resign (May 8, 2015). It is a lie to state that the movant returned to the company on June 8, 2015 to sign the form. He was already told to sign it on May 8, 2015. The movant was not the one who wrote the date June 8, 2015 in the signature part of the form. This is a case of falsification by the staff of respondent Xxx. The movant did not write the said date. It was not his handwriting. He knows his own handwriting as all human beings do.

(p) The clearance form itself states that when it shall have been signed by a resigning employee, the human resource department would still need a sufficient period of time to “process” the final pay and the liabilities of the employee, if any. Respondent Xxx signed the clearance form on June 9, 2015. It is not true that the final pay of the movant was computed and cleared on June 8, 2015. In fact, the movant found out about his “negative” only five months after the date of his forced resignation as discussed in his position papers and appeal memorandum. 

(q) The movant is only a high school graduate. He is not a college graduate. He is not a Radio Mechanic college degree holder, as stated in the questioned Decision. He is not a lawyer. He has no deep working knowledge of Labor Law and Jurisprudence. He is an ordinary citizen who earns a living out of his hard work. He was an Overseas Filipino Worker (OFW) prior to working with the respondent company. 

(r) Please note that on the date that the movant was forced to resign based on alleged gross neglect of duty, no company lawyer was present to explain the charge to him. He was not allowed to communicate with a lawyer of his own choice to assist him that day.


· The late filing by the movant of his complaint does not prove that he had voluntarily resigned. 

· He had given the respondents a final chance to correct their illegal mistakes. 

· He was trying to protect the security of tenure of his own wife, who was also employed in the same company, from potential pressures and harassments from respondents had the movant filed a precipitate and premature labor complaint. 

· Only when the cruel abuses of the respondents had reached their zenith was the movant forced to file a formal complaint for illegal dismissal and damages. 

The following facts should be noted:

(a) Tardiness per se in filing a complaint is not a sign of bad faith if it can be justified.

(b) The wife of the movant was also employed with the same company.

(c) The movant wanted to shield her from unnecessary pressures and harassments from the respondents. 

(d) If both the movant and his wife were both jobless, for any reason, the whole family would have suffered. 

(e) The movant tried to give the respondents a chance to correct their illegal mistakes. 

(f) The movant tried to psychologically move on and look for another job and to start a fresh new life and career elsewhere.

(g) The respondents persisted in their abuse. They refused to issue the certificate of employment of the movant. They demanded a refund from the movant of the past bonuses had received. Thus, the movant was forced to seek the intervention of the Department of Labor and Employment (DOLE) via a formal labor complaint.


· The respondents had the chance to try the movant via formal commence administrative proceedings but they ignored their internal rules of procedure. 

· They ignored their own manual of operations in re: internal employee administrative disciplinary cases.

· The movant had proved via his testimonial evidence that the respondents had treated him like a prisoner inside the human resource department on the day he was forced to resign.

· The movant had proved via his testimonial evidence that he begged for a few days to think over the resignation demand of the respondents.

The following facts should be noted:

(a) In his positions papers and appeal memorandum, the movant had explained in detail the disciplinary rules of procedure in the company. The respondents ignored their own rules. They violated the right to due process of the movant.

(b) In effect, the gravity of the administrative offense of the movant was illegally qualified or increased by the respondents from a harmless case of tardiness to gross neglect of duty by forcing him to resign on the spot on May 8, 2015 while he was still on duty -- all without due process of law.

(c) The respondents ignored the graduated table of administrative disciplinary penalties in the employee handbook of the company.

(d) No proofs of any formal administrative proceedings were presented by the respondents. The respondents unjustly tried to shift the burden of proof to the dismissed employee contrary to existing jurisprudence. The Commission abetted their illegal theory.

(e) The respondents, despite demand from the movant and despite a motion filed with the labor arbiter below, refused to disclose and provide the movant with a copy of his 201 Personal File. It was the best and the most crucial documentary evidence to show the employment history of the movant. The respondents hid it from the movant, the labor arbiter, and this Commission -- a sign of bad faith which must be construed against the respondents as per the Rules of Evidence.

(f) The movant had proved via his testimonial evidence under oath as stated in his position papers and in his appeal memorandum that he was restrained of his liberty of movement inside the human resource development office of the respondent Angio Xxx on the fateful day of May 8, 2015. It was there where were he was forced to write in his own handwriting a resignation letter. He was forced to express his gratitude to the company. He was forced to state that the resignation would be effective on the same day itself.

(g) While under curtailment of his liberty of movement, he was not allowed to communicate with his wife, who was also in the company premises at that time. He was not allowed to go to his locker to retrieve is mobile phone to call up his wife or an external lawyer to assist him. He was in effect placed under de facto solitary confinement to force him to issue a handwritten letter of resignation.


· The movant is entitled to unpaid salaries and other benefits, without loss of seniority rights, having been illegally dismissed.

· The movant is entitled to proportionate 13th month pay as of May 8, 2015 whether or not he was illegally dismissed or he alleged resigned of his own volition. 

· The movant had no outstanding obligation of P35,059.00.

Please note the following facts:

(a) Illegal dismissal carries with it the right to be reinstated with the backwages and other receivable benefits and without loss of seniority rights. This is what the movant is claiming.

(b) A worker is entitled to a proportionate computation of his 13th month pay regardless of the manner of his divorce from the company, i.e., whether via resignation or via termination. His earned commensurate or proportion portion of his 13th month pay vis-à-vis the rest of the year is due him as a matter of right.

(c) The movant had no outstanding obligation of P35,059. 

(d) It is immoral and illegal for the company to earn from its own illegal and immoral acts. That is, the company cannot be allowed to profit from its own illegal and immoral acts. It is not allowed to benefit from its act of violating the movant’s right to security of tenure and to due process of law.

(e) The company had no right to demand the return of the past bonuses paid to the movant, the reason being that it was the company itself that was guilty of illegally ending the employer-employee relationship in an unconstitutional and immoral manner.

(f) The movant denies that he had used thirty days of unauthorized sick leaves. His sick leaves were all authorized and documented. They were approved by the company doctor and his department head. His authorized sick leaves fell within his allowable twenty-five-days paid sick leave benefit. This matter could have been laid to rest had the respondent honestly disclosed, revealed and submitted authentic copies of the 201 Personnel File of the movant to the labor arbiter, to the movant, and to the Commission. They refused to do so, a sign of bad faith in litigation.

(g) The movant submits that during his entire service he had incurred only eighteen documented tardiness. He was imposed two suspensions. His twelve instances of tardiness were penalized with a written warning. When he incurred one tardiness after that, he was imposed his first suspension. It was followed by a three-day suspension even if he was tardy only twice. There was no memorandum issued to him that he would be imposed a three-day suspension. It was not documented. He learned about it only when he reported for work on that particular day. 

(h) The Commission believed outright all the empty and unproved allegations of the respondents. It did not review if there were proper documentations of the suspensions and tardiness claimed by the respondents. The respondents had belatedly raised the empty allegations of “too many sick leaves”, “absences”, “procedural violations”, and the like – all of which the Commission believed outright without any valid proofs, not even the 201 Personnel File of the movant.

(i) The movant is not a managerial employee of the company. He was an ordinary employee, although his rank was that of a supervisor. He was paid what were due a regular rank and file employee, i.e., salaries, service charge, holiday pay, night differential pay, overtime pay, and the like -- which a managerial officer does not receive.

7. A counter-review of the cases cited in the questioned Decision.

7.1. Hechanova et al vs. Atty. Leny Matorre, GR 198261, 16 October 2013. – This case is not applicable to the movant. In this case, during a meeting between Atty. Matorre and Atty. Hechanova on August 19, 2008, Atty. Matorre told Atty. Hechanova that since she (Atty. Hechanova) was not satisfied with her work and because they were frequently arguing with each other, it would be best if she (Atty. Matorre) resigns from the firm. Atty. Matorre requested that her resignation be made effective on September 30, 2008, but thinking that the said date was too far off, Atty. Hechanova accepted the resignation, with the condition that it be made effective on September 15, 2008. Atty. Matorre, in her own Position Paper which she submitted to the NLRC, admitted to the fact of her resignation.

7.2. Nelson Gan vs. Galderma Philippines Inc., et al, GR 177167, 17 January 2013. – This is case is not applicable to the movant. In this case, the complainant was a high-ranking manager. Moreover, in this case, Gan deliberately wrote and filed a resignation letter that was couched in a clear, concise, and categorical language. Its content confirmed his unmistakable intent to resign. The resignation letter indicates that he was resigning "to pursue the establishment of his own business or explore opportunities with other companies." The reasons stated for relinquishing his position were but logical options for a person of his experience and standing.

7.3. Globe Telecom et al vs. Jenette Marie Crisologo, GR 174644, 10 August 2007. – This case is inapplicable to the movant. In this case, on April 5, 2002, respondent (who was then pregnant) was rushed to the Makati Medical Center due to profuse bleeding. It was later diagnosed as a possible miscarriage. After a week-long absence, respondent reported back to work on April 12, 2002.9 On the same day, she tendered her resignation letter explaining that she was advised by her doctor to rest for the duration of her pregnancy. She also requested permission to exhaust her unused leaves until the effective date of her resignation on May 30, 2002. Globe accepted her resignation. The respondent was a LAWYER. 

7.4. Kay Products, Inc., et a vs. The Honorable Court of Appeals, et al, GR 162472, 28 July 2005. – This case is inapplicable to the movant. In this case, the issue was the "voluntariness" of the resignation letters. The Supreme Court held that it was inclined to agree with the petitioners that they were coerced, threatened or intimidated into signing blank sheets of paper which materialized into resignation letters, the contents of which were dictated by the Director and Personnel Manager of the respondent company. For to  us, it is inconceivable that a worker who has already attained a regular status in his employment would opt to be transferred to another employment agency, there to start work anew – work that would relegate him to a mere casual laborer or employee. Obviously, petitioners were not given any other choice by management, but to agree to their transfer to Gerrico Resources, lest they lose their only means of livelihood. Considering that petitioners are ordinary sewers of respondent company, the fear of losing their jobs cannot but be a serious, legitimate concern. It was held that when a person has no property, his job may possibly be his only possession or means of livelihood. Therefore, he should be protected against any arbitrary deprivation of his job. In the same spirit, Art. 280 of the Labor Code construes security of tenure as meaning that "the employer shall not terminate the services of an employee except for a just cause or when authorized by" the Code. Further, it was held that the fact that petitioners in this case failed to indicate in their resignation letters the phrase "under protest" or "with reservations" is of no moment. To be stressed anew is the fact that petitioners were ordinary factory workers who could not and should not be expected to know the legal import or significance of some such phrase as "under protest" or "with reservations."

7.5. “J” Marketing Corp. vs. Cesar L. Taran, GR 163924, 18 June 2009. – This case is not applicable to the movant. In this case, it was held that the fact that complainant submitted a resignation letter was uncontroverted. The finding was that that before complainant submitted his resignation letter, he had verbal agreement with the Regional Manager that he had to formally tender his resignation from the company to entitle him to a grant of 100% separation pay. This verbal agreement could be inferred from the tenor of the letter sent to him on February 13, 1993, by Mr. J. Caludac, Branch OIC.

8. CONCLUSION. –In the interest of justice, the movant respectfully (a) seeks the RECONSIDERATION of the questioned Decision and (b) prays for the RELIEFS stated hereinbelow. 

WHEREFORE, premises considered, it is respectfully prayed that the DECISION, dated April 7, 2017, of the First Division of the Honorable Commission be PARTIALLY RECONSIDERED in that (a) the complainant-appellant be declared as having been ILLEGALLY DISMISSED by the respondents-appellees, with all its attendant legal consequences under the Labor Code and existing jurisprudence, and 

(b) the portion of the Decision ordering the respondents-appellees to release to the movant his CERTIFICATE OF EMPLOYMENT be maintained whether or not he is reinstated to his former position for his personal record as a matter of right.

FURTHER, it is respectfully prayed that the respondents-appellees be ordered to pay the movant:

(a) BACKWAGES from the date of the illegal dismissal of the movant on May 8, 2015 up to the time he is REINSTATED to his former position without loss of seniority and other benefits.

(b) MORAL DAMAGES of P500,000.00.

(c) EXEMPLARY DAMAGES of P500,000.00.

(d) RECEIVABLES of the movant representing salaries and other benefits in the amount of P61,166.99.

(e) Attorney’s fees of Ten Percent of Damages AWARDED.

(f) Unpaid 15-minute daily staff briefings for two and one-half years (January 7, 2013 to May 8, 2015).

FINALLY, the movant respectfully prays for such and other reliefs as may be deemed just and equitable in the premises.

Xxx City, xxx 2017.

[1] Section 15, Rue VII, 2011 Rules of Procedure of the National Labor Relations Commission (NLRC). 

[2] Sec. 15, Rule VII, 2011 Rules of Procedure of the NLRC.