Motion for Writ of Execution; sample Comment.

COMMENT

(Re: “Motion for Issuance of  Writ of Execution”)

The ACCUSED, by counsel, respectfully states:

1. During the hearing held on May 9, 2017 at about 8:00 PM while waiting for this case to be called, the accused, who is the former Chairman of xxx, xxx City, and Mr. xxx, the authorized representative of the private complainant xxx Financing Corporation, agreed in principle on the following matters:

(a) Mr. xxx told the accused that he had filed the pending motion for writ of execution as a ministerial formality and as a stand-by means to effect continuing payments of the judgment debt on the part of the accused;

(b) If and when the writ of execution is issued by the Court, the private complainant would not aggressively pursue its implementation by the Court Sheriff so long as the accused regularly pays the private complainant One Thousand Pesos (P1,000.00) weekly (every Friday) as an act of good-faith compliance;

(c) Expressing his apology to Mr. xxx, the accused informed that latter that from February 2013 to April 2017 he had been intermittently hospitalized every six to seven months due to his cardio-vascular (heart) ailment and chronic pulmonary asthma. 

The accused informed Mr. xxx that he had undergone a major cardio-vascular angioplasty operation in September 2015 at the xxx Medical Center in xxx City. 

The accused informed Mr. xxx that he had been confined in the same hospital every six to seven months from 2013 to 2017 because of his chronic pulmonary asthma. 

The accused informed Mr. xxx that his aforementioned continuous confinements had depleted his family savings. He had to rely on his mother and siblings for financial assistance. 

The accused furnished Mr. xxx photocopies of his medical and hospitalization records for the said period. Mr. xxx acknowledged the documents with compassion.

(d) The private complainant would deduct from the obligation of the accused the amounts that may be paid in the future in installments to the private complainant by the four real borrowers whom the accused had vouched for as their Barangay leader and co-maker. 

The accused was the lead issuer of the postdated checks subject matters of this BP Blg. 22 case. 

The real borrowers are xxx (former xxx secretary), xxx (former xxx), xxx (former xxx), and xxx (incumbent xxx). 

Mr. xxx confirmed this fact. The private complainant recently filed separate collection cases against the said persons based on the same financial transaction subject matter of this case. They are pending in the Metropolitan Trial Courts of xxx City.

2. The accused acknowledges that it is the ministerial duty of the Court, as per Rule 39 of the Rules of Court, to issue, upon motion, a writ of execution based on a violation of a judgment upon compromise.

3. The accused nonetheless invokes the sense of compassionate and merciful justice of the Court in light of the foregoing facts. 

He humbly leaves his fate to the kind and sound discretion of the Court and to the mercy of the Divine Providence.

For the record. Respectfully submitted.

Xxx City, xxx 2017.

DEED OF EXTRAJUDICIAL SETTLEMENT; sample

DEED OF EXTRAJUDICIAL SETTLEMENT  OF THE ESTATE OF THE DECEASED Xxx WITH DEED OF ASSIGNMENT  IN FAVOR OF xxx .

KNOW ALL MEN BY THESE PRESENTS:

WE, (1) xxx, 75 years old (born on February 8, 1942), widow, naturalized American citizen, and residing at ______________; (2) xxx, 48 years old (born on November 3, 1971), married, naturalized American citizen, and residing at ______________________; (3) xxx, single, 43 years old (born on June 24, 1973), naturalized American citizen, and residing at ____________________; (4) xxx, married, 42 years old (born on January 2, 1975), naturalized American citizen, and residing at _____________________; (5) xxx, 40 years old, married, naturalized American citizen, and residing at _____________________________; and (6) xxx, 39 years old (born on October 25, 1977), married, naturalized American citizen, and residing at ________________________, under oath, depose, state, covenant and stipulate:

1. That the undersigned are the legal heirs of the deceased xxx, who died at the age of 74 (born on December 13, 1941) on October 12, 2016 in _______________, as per a copy of his Death Certificate of the said deceased issued on October 26, 2016 by the County of Los Angeles of Department of Public Health, California, with State File No. xxx, Local Registration No. xxx marked as Annex “A” hereof, for reference.

2. That the legitimate spouse/widow (legal heir) of the deceased xxx is the undersigned xxx;

3. That the legitimate children (legal heirs) of the deceased xxx are the undersigned (a) xxx, (b) xxx (c) xxx, (d) xxx, and (e) xxx; 

4. That the estate left by the deceased xxx consists of his accumulated Philippine Social Security System (SSS) pensions, under SSS No. xxxx, deposited in the BANK OF xxx (xxx), xxx Branch, xxx City, Philippines, with Savings Account No. xxxx, amounting to One Hundred Seventy thousand and Fifty Pesos (P170,050.00), more or less;

5. That, by way of EXTRAJUDICIAL SETTLEMENT of the estate of the deceased xxx, his undersigned legal heirs hereby EQUALLY PARTITION among themselves his estate, pursuant to the Civil Code of the Philippines and the Rules of Special Proceedings of the Revised Rules of Court of the Philippines;

6. That the undersigned legitimate children of the deceased xxx , namely, (a) xxx, (b) xxx (c) xxx, (d) xxx, and (e) xxx, hereby ASSIGN, TRANSFER AND CONVEY the entirety of their respective individual shares/legitimes in favor of their legitimate mother xxx (legitimate widow of the deceased);

7. That the estate of the deceased is not subject to any existing lien, encumbrance, lis pendens, garnishment, attachment, injunction, execution, or any debt or obligation.

8. That the undersigned legal heirs of the said deceased hereby undertake to pay the necessary taxes, fees, charges, assessments or expenses, if any, that may be due and owing to the Philippine Government or any of its instrumentalities or agencies, the Bank of xxx (xxx), or any party or entity entitled thereto under existing Philippine laws;

9. That, as required by the Rules of Evidence of the Revised Rules of Court of the Philippines, this Deed of Extrajudicial Settlement is acknowledged and authenticated by the proper consular officer of the Philippine Consulate in Los Angeles, California, USA with jurisdiction over the respective residences of the undersigned legal heirs of the said decedent and with jurisdiction over the place of death of the said decedent;

10. That we undertake to comply with all the rules, regulations, procedures and requirements of the Bank of xxx (xxx), the Philippine Social Security System (SSS), the Philippine Bureau of Internal Revenue (BIR), and other concerned public or private agencies or offices to give full legal effect to the provisions of this Deed of Extrajudicial Settlement;

NOTHING FOLLOWS.

__________, California, USA, _________, 2017.

SPECIAL POWER OF ATTORNEY; sample

SPECIAL POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS:

WE, xxx, of legal age, married, Filipino, and with postal address at __________________, and xxx , of legal age, married, Filipino, and with postal address at __________________, hereby name, constitute and appoint our sister xxx, of legal age, married, Filipino, and with postal address at _________________, to be our true and lawful attorney-in-fact, for us and in our name, place and stead, to do and perform any and all of the following acts and powers, to wit: 

1. To SELL to the buyer named __________________________, of legal age, married, Filipino, and residing at ______________________________________. a parcel of land which we co-owned as the legal heirs of our deceased our mother xxx, who died in Las Pinas City on September 4, 2009. The subject property in her inheritance share from the estate of her deceased mother xxx, who died on 16 August 2001 in Bacolod City. It is still covered by the mother title TCT No. T-799961, issued on 4 April 1979 by the Register of Deeds of Bacolod City, a copy of which is attached as Annex “A” hereof, with an area of Seventeen Thousand Four Hundred Eighty Nine (17,489) square meters, described. Out of such original area, the share of our mother xxx is _______________________________________________ (_____) square meters. The mother title/property is identified as as follows: 

“A parcel of land (Lot 1102 – A of the Subdivision Plan (LRC)…214709, being a portion of Lot 1102, Bacolod Cadastre, LRC CAD. Record No. 55), situated in the City of Bacolod, Island of Negros: … containing an area of SEVENTEEN THOUSAND FOUR HUNDRED AND EIGHTY NINE (17,489) SQUARE METERS, more or less, … original survey, March 1913-March 1914 and that of the subdivision survey executed by Hernando B. Guillem, geodetic engineer, on Jan. 10-11, 1975.” 

2. Our said attorney-in-fact xxx is hereby empowered by us to fix the terms and conditions of such sale as she may deem best and proper. The purchase of the said sale shall be EQUALLY DIVIDED by her among all of us, i.e., the three children of our deceased mother xxx, namely, xxx, xxx, and xxx. Our individual shares from the said purchase price shall be released to us by our attorney-in-fact immediately upon payment of the purchase price. 

3. We empower our attorney-in-fact to RECEIVE the purchase price of the sale; to SIGN, EXECUTE AND DELIVER any and all deeds, contracts, instruments, documents and papers necessary to consummate the deed of sale and other necessary legal documents; to represent us before the proper government agencies to effect the purpose and stipulations of the deed of sale and other documents; and to do such other necessary steps, actions and documentations as may be required by law to effect the said deed of sale in favor of the abovenamed buyer ______________________________________.

4. It is understood that the said buyer, __________________________________, shall be responsible for ALL TAXES, FEES, CHARGES, COSTS, AND EXPENSES RELATED TO THE DOCUMENTATION, EXECUTION, SIGNING AND CONSUMMATION OF THE NECESSARY DEED OF SALE, THE NOTARIZATION THEREOF, AND THE REGISTRATION THEREOF WITH THE CITY REGISTER OF DEEDS, THE CITY ASSESSOR, AND THE BUREAU OF INTERNAL REVENUE, AND OTHER CONCERNED GOVERNMENT AGENCIES.

5. We hereby empower our said attorney-in-fact to sue in any and all judicial and quasi-judicial fora and tribunals any and all parties who may violate the stipulations of the said sale. 

6. We further grant the following additional legal powers to our said attorney-in-fact:

(a) To represent me during the preliminary conference, pre-trial conference, judicial dispute resolution conference, mediation conference, trial, appeals, and any and all stages of any and all suits that may be arise by reason of the foregoing matters and powers; 

(b) To stipulate or admit facts and documents during the pretrial, trial and appeal stages of any and all such cases; 

(c) To negotiate, enter into, and execute with the adverse party in the abovespecified case a compromise agreement or amicable settlement that may be legally entered into, subject to such terms and conditions that our attorneys-in-fact may deem necessary and proper; 

(d) To assert, prosecute, and defend my rights and interests in the specified legal action as my said attorneys-in-fact may deem proper and necessary; 

(e) To explore and adopt alternative modes of dispute resolution as may be allowed the Rules of Court of the Philippines, e.g. mediation, conciliation, and/or arbitration;

(f) To limit the number of witnesses, to refer the cases to a commissioner as may be necessary or reasonable, to suspend the proceedings if necessary, to agree on such matters as provided for in Rule 18 (pretrial) of the 1997 Rules of Civil Procedure, to simplify the issues, to amend the pleadings, to obtain a judgment on the pleadings, or to move for summary judgment, to make, sign, execute and deliver any and all documents and instruments in relation to the above powers, and to perform any and all inherent, implied and necessary powers to give effect to this special power of attorney.

(g) To sign, execute, deliver and file any and all necessary pleadings, whether initiatory or otherwise, and any and all documents, papers and instruments for purposes of implementing the powers granted by me in this instrument;

(h) To designate a substitute or delegate of his own choice to assist him in the effective and timely performance of any and all of the foregoing powers.

HEREBY GIVING AND GRANTING unto our said attorney-in-fact and/or his delegates and substitutes, full powers and authority to do and perform any and every act and thing whatsoever requisite, necessary or proper to be done in and about the premises as fully to all intents and purposes as we might or could do if personally present and acting in person; and

HEREBY RATIFYING AND CONFIRMING all that our said attorney-in-fact or his delegates and substitutes, shall lawfully do and cause to be done under and by virtue of these presents.

Executed in _____________ this ____ day of ____________, 2017. 

Administrative case in a private company; sample EXPLANATION WITH OMNIBUS MOTION

IN THE MATTER OF THE NOTICE TO EXPLAIN

AND NOTICE OF DISCIPLINARY CONFERENCE, 

DATED JUNE 9, 2017, ADDRESSED TO THE 

RESPONDENT XXX AND 

RECEIVED BY THE RESPONDENT ON JUNE 9, 2017.

Case No. __

Xxx xxxx xxxx,

Respondent.

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

EXPLANATION  WITH  OMNIBUS MOTION

The Respondent xxx, assisted by counsel, respectfully states:

1. The respondent is employed as a “Workforce Offshore Scheduling Analyst” of this Company. He is assigned at the xxx City site office thereof. 

He has worked with the Company in 2008, 2011 to 2012, 2012-2014, and 2014 up to the present time. He has occupied various positions in the Company. 

Attached is a copy of his Work History with the Company, marked as Annex “A’ hereof.

2. On June 9, 2017, after midnight, he was served by the Company a copy of a Letter, dated June 9, 2017, issued by Mr. xxx, Human Resource Site Head. 

The letter charged the respondent with alleged violations of Section I.F.5, Section I.F.14, Paragraph “A” of Section I, and Paragraph “C” of Section I, of the xxx Employee Action Form (EAF) – Employee Guide. 

His fifth day to file his Explanation, as required by the letter, would expire on June 14, 2017. Hence, this Explanation with Omnibus Motion.

Section I.F.5 refers to fraud. The respondent is being charged of carrying out “multiple fraudulent transactions” using company equipment and resources. The particulars thereof, i.e., incidents, chronologies, parties involved, and others, are not alleged in the letter.

Section I.F.14 likewise refers to Fraud. The respondent is being charged of divulging his computer ID and password (NT-login credentials). The particulars thereof, i.e., incidents, chronologies, parties involved, and others, are not alleged in the letter.

Section I, Paragraph “A” refers to Falsification. The letter did not specify the alleged violative acts of the respondent with respect to Subparagraphs “1” to “6” thereof (which includes “falsifying…”, “giving false testimony…”, “submitting false information…”. “concealing information…”, “opening propriety or confidential documents…”, and “failure to submit on time…”). The particulars thereof, i.e., incidents, chronologies, parties involved, and others, are not alleged in the letter.

Section I, Paragraph “C” refers to Breach of Company Trust. It did not specify how the respondent violated Subparagraphs “1” and “2” thereof (which apparently applies to a managerial employee, which the respondent is not). The particulars thereof, i.e., incidents, chronologies, parties involved, and others, are not alleged in the letter.

The letter referred to an alleged “report from the Global Incident Response and Investigation Team”. The respondent has not been officially furnished a copy of the report. He is entitled to controvert the same in the interest of justice. The particulars thereof, i.e., incidents, chronologies, parties involved, and others, are not alleged in the letter.

3. The letter referred to an alleged “Preliminary Interview” (which was held on June 8, 2017 shift). The respondent has not been officially furnished a copy of the Minutes or Transcript of the Preliminary Interview. The letter alleged that the respondent had admitted during the preliminary interview his alleged disclosure of his NT login credentials. 

Please note that during the preliminary interview (June 8 2017 shift), seven officers of the company attended to interrogate the respondent. It lasted for about one hour.

He was not assisted by a legal counsel/adviser during the interview. Neither was he informed of his right to counsel at that stage of the disciplinary process. 

He was exposed to psychological pressures to make certain adverse statements during the interview.

The interview was recorded by a recording machine under the control of the Human Resource officers present. The respondent was not officially provided a copy of the recorded video and its transcripts. 

He recalls that he was made to sign a document amounting to an admission during the interview without the assistance of counsel.

4. The respondent was placed under Preventive Suspension for a period of thirty days counted from June 9, 2017.

The two reasons given for the preventive suspension were that the respondent allegedly occupies a “sensitive position” and that there is need to prevent alleged “further loss of revenue”. 

Please note that the main tasks of the respondent are (a) to analyze clients’ forecasts and (b) to suggest schedules and headcounts needed for an account. He also approves or disapproves vacation leave applications. 

He does not handle cash and other liquid assets of the company. He is not a bonded employee of the company.

His tasks are not “sensitive”. He does not create the risks of “loss of revenue”. 

There is no good reason for the order of preventive suspension. It should be lifted in the interest of justice.

5. The letter set the Disciplinary Conference of this administrative case on June 14, 2017, Wednesday, at 7:00 AM at the Human Resource Office of the Company in Xxx City. The letter allowed the respondent to bring a Support Person or Adviser during the proceedings.

6. There is no showing that the Company observed the DUE PROCESS rules (Corrective Action Process and Representation in “every stage”) stated in the Employee Guide. The Process includes the following steps:

(a) Incident Report. – It is supposed to be issued to the respondent by his immediate superior. The respondent has not received a copy thereof. 

(b) Corrective Actions. – It is the formal recording of the details of the alleged violations of the respondent in his CCMS Profile. It must be issued “early and quickly”. 

It consists of the following steps: 

(a) Preliminary Assessment. – This was supposed to be done by the superior of the respondent. The respondent has not been furnished a copy of the Preliminary Assessment Report, if any.

(b) Corrective Action Process. – This consists of the following steps:

(1) The filling out of the CCMS Incident Report by the superior of the respondent. The respondent was not furnished a copy thereof.

(2) The creation of the EAF by the superior of the respondent. The CCMS Incident Report is supposed to be attached to the EAF. The respondent has not been furnished copies of both documents.

(3) Disciplinary Meeting. – This has been set by the Company on June 14, 2017 at 7:00 AM. The respondent shall attend the same.

7. The respondent is a family man. He has a wife and two minor children to support and maintain. 

8. The respondent is entitled to his constitutional and human rights to DUE PROCESS OF LAW, EQUAL PROTECTION OF THE LAW, AND SECURITY OF TENURE.

9. The burden of proof in a labor case or an administrative case is upon the Employer, not the Employee. A party who initiates a complaint or alleges an affirmative fact has the burden of proof.

10. As per Article 282 of the Labor Code (not Article 297 as erroneously cited in the letter), an employer may terminate an employment for any of the following just causes:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

(b) Gross and habitual neglect by the employee of his duties;

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; 

(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and 

(e) Other causes analogous to the foregoing.

The BURDEN OF PROOF belongs to the Employer.

Article 3 of the Labor Code provides that the State shall afford protection to labor. The State shall assure the rights of workers to security of tenure.

Article 4 of the Labor Code provides that all doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor.

It should be noted that as per Article 279 (Security of Tenure) of the Code, the employer shall not terminate the services of an employee except for a just cause. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and to his backwages computed from the time his compensation was withheld from him up to time of his actual reinstatement. (As amended by RA 6715)

WHEREFORE, premises considered, it is respectfully prayed:

1. That a BILL OF PARTICULARS of the alleged violations of the respondent be issued to him during the hearing set on June 14, 2017 at 7:00 AM or thereabout to enable him to scrutinize and controvert the same pursuant to his constitutional rights to DUE PROCESS OF LAW, EQUAL PROTECTION OF THE LAW, and SECURITY OF TENURE and in the interest of justice; 

2. That the respondent be furnished copies of all the documents and reports relevant to this case during the hearing set on June 14, 2017 at 7:00 AM or thereabout to enable him to scrutinize and controvert the same pursuant to his constitutional rights to DUE PROCESS OF LAW, EQUAL PROTECTION OF THE LAW, and SECURITY OF TENURE and in the interest of justice;

3. That the upon receipt of the Bill of Particulars and the documents and reports referred to above, the respondent be given ten days to file his POSITION PAPER to rebut and controvert the same to enable him to scrutinize and controvert the charges, pursuant to his constitutional rights to DUE PROCESS OF LAW, EQUAL PROTECTION OF THE LAW, and SECURITY OF TENURE and in the interest of justice; 

4. That pending the in-house litigation of this case, the Preventive Suspension of the respondent be LIFTED, there being no legal and factual basis therefor;

FURTHER, by way of an extrajudicial settlement of this case and without admission of guilt on the part of the respondent and solely for the purpose of achieving peace of mind, the respondent hereby offers to VOLUNTARILY RESIGN, provided, the Company issues to him the following: (a) Certificate of Employment (COE); (b) his receivable due and earned benefits, e.g., unpaid salaries, unpaid overtime pay, unpaid holiday pay, proportionate 13th month pay, and others; and (c) the withdrawal or dropping of this administrative case.

FURTHERMORE, the respondent prays for such and other reliefs as may be deemed just and equitable in the premises.

Xxx City, June 13, 2017.

XXX XXX

Respondent

Assisted by:

LASERNA CUEVA-MERCADER

LAW OFFICES

Counsel for Respondent

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

MOTION FOR PARTIAL RECONSIDERATION

(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.

6. DISCUSSION. 

6.1. ILLEGAL DISMISSAL.

· 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.

6.2. LATE FILING OF COMPLAINT. 

· 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.

6.3. VIOLATION OF DUE PROCESS BY RESPONDENTS WHO IGNORED THE COMPANY HANDBOOK OF DISCIPLINARY RULES OF PROCEDURE. 

· 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.

6.4. MONEY CLAIMS. 

· 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.

MOTION FOR WRIT OF EXECUTION; Sample.

MOTION FOR WRIT OF EXECUTION

THE PLAINTIFFS, by counsel, respectfully state:

1. On 2 May 2008 this Honorable Court issued a DECISION in the abovecaptioned case, finding for the herein plaintiffs.

A certified true copy of the said Decision is attached as Annex “A” hereof, with submarkings.

2. On 17 February 2016 the Court of Appeals (13th Division) issued a DECISION in CA GR CV No. xxx, “affirm(ing) with modifications” the aforecited Decision, dated 2 May 2008, of this Honorable Court. 

A certified true copy of the said Decision, dated 17 February 2016, of the Court of Appeals is attached as Annex “B” hereof, with submarkings.

3. On 17 June 2016 the Court of Appeals (13th Division) issued a RESOLUTION denying the Motion for Reconsideration of the defendant xxx Bank Inc.. (xxx).

A certified true copy of the said RESOLUTION is attached as Annex “C” hereof, with submarkings.

4. On 17 September 2016 the Supreme Court (3rd Division) issued a RESOLUTION in GR No. xxx entitled “xxx Bank Inc. vs. Spouses xxx and xxx and xxx Insurance Inc.”, DENYING the Petition for Review on Certiorari filed by the defendant xxx.

A certified true copy of the said RESOLUTION is attached as Annex “D” hereof, with submarkings.

5. On 7 December 2016 the Supreme Court (3rd Division) issued a RESOLUTION DENYING WITH FINALITY the Motion for Reconsideration filed by the defendant xxx.

A certified true copy of the said RESOLUTION is attached as Annex “E” hereof, with submarkings.

6. On 7 December 2016 the Judicial Records Office of the Supreme Court issued an ENTRY OF JUDGMENT quoting in full the aforecited RESOLUTION, dated 7 December 2016, of the Supreme Court (3rd Division).

A certified true copy of the said ENTRY OF JUDGMENT is attached as Annex “F” hereof, with submarkings.

7. On 1 June 2017 the undersigned counsel for the herein plaintiffs wrote the Office of the Clerk of Court of the Court of Appeals to TRANSMIT the record of this case back to this Honorable Court for purposes of Execution.

The duplicate original copy of the said Letter, dated 1 June 2017, bearing the official acknowledgement receipt stamp of the Court of Appeals, is attached as Annex “G” hereof, with submarkings.

8. Section 1, RULE 39 (Execution, Satisfaction and Effect of Judgments), of the 1997 Rules of Civil Procedure, inter alia, provides that “if the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court of origin, on motion of the judgment obligee, submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party”.

It provides that the motion for writ of execution may be filed with and acted upon by the court of origin even while the record of the case is still with the appellate court or is in the process of being transmitted to the court of origin, provided, that the movant/judgment oblige formally applies for such a writ of execution “in the court of origin, …, submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party”.

The certified true copies of the required documents are attached to this motion as Annex “A” to Annex “F”.

9. Section 8 (e) of Rule 39 provides that “in all cases, the writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the judgment” and that “for this purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movant”. 

10. The DECISION, dated 2 May 2008, of this Honorable Court made the following awards in favor of the herein plaintiffs (Annexed “A-26 to A-27”):

(a) Moral damages – P100,000.00;

(b) Exemplary damages – P100,000.00;

(c) Attorney’s fees - P210,429.76;

(d) Litigation expenses - P100,000.00;

(e) Costs of suit

11. The DECISION, dated 17 February 2016, of the Court of Appeals (13th Division) ruled as follows (Annex “B-12”):

(a) It “affirmed with modifications” the Decision, dated 2 May 2008, of this Honorable Court;

(b) It reduced the award of attorney’s fees to P100,000.00;

(c) It deleted the award of litigation expenses;

(d) It affirmed the award of moral damages of P100,000.00;

(e) It affirmed the award of exemplary damages of P100,000.00; and

(f) It affirmed the award of costs of suit.

No interest was awarded both by this Honorable Court and the Court of Appeals.

As per the latest existing jurisprudence, the interest shall commence to run from finality of the judgment, which was on 7 December 2016 (Annex “F-1”). 

The latest jurisprudence imposes an annual interest of 6% per annum, which is the new rate since July 1, 2013, as per a 2013 BSP Circular[1] issued in that year. 

The judgment awards become a forbearance of money from the date of the finality thereof on 7 December 2016.[2]

WHEREFORE, premises considered, it is respectfully prayed that, after notice and hearing, a WRIT OF EXECUTION be issued to enforce the DECISION, dated 2 May 2008 of this Honorable Court (Annex “A”), as affirmed with modifications by the DECISION, dated 17 February 2016, of Court of Appeals (Annex “B”) and pursuant to the ENTRY OF JUDGMENT issued by the Supreme Court (Annex “F”).

FURTHER, the plaintiffs respectfully pray for such and other reliefs as may be deemed just and equitable in the premises.

Xxx City, xxx 2017.

[1] Bangko Sentral ng Pilipinas Monetary Board in BSP-MB Circular No. 799. 

[2] Land Bank of the Philippines v. Emmanuel C. Oñate, G.R. No. 192371, January 15, 2014; Fil-Estate Properties, Inc. and Fil-Estate Network, Inc. v. Spouses Conrado and Maria Victoria Ronquillo, G.R. No. 185798, January 13, 2014. 

Attorney's Lien; sample.

ATTORNEY’S LIEN

          The PLAINTIFFS and their UNDERSIGNED COUNSEL respectfully state:

1.      On 2 May 2008 this Honorable Court issued a DECISION in the abovecaptioned case, finding for the herein plaintiffs.

2.    On 17 February 2016 the Court of Appeals (13^th Division) issued a DECISION in CA GR CV No. xxx, “affirm(ing) with modifications” the aforecited Decision, dated 2 May 2008, of this Honorable Court.   

3.    On 17 June 2016 the Court of Appeals (13^th Division) issued a RESOLUTION denying the Motion for Reconsideration of the defendant xxx Bank and Trust Co., Inc. (xxx).

4.    On 17 September 2016 the Supreme Court (3^rd Division) issued a RESOLUTION in GR No. xxx entitled “xxx Bank vs. Spouses xxx and xxx and xxx Insurance xxx Inc.”, DENYING the Petition for Review on Certiorari filed by the defendant xxx.

5.     On 7 December 2016 the Supreme Court (3^rd Division) issued a RESOLUTION DENYING WITH FINALITY the Motion for Reconsideration filed by the defendant xxx.

6.    On 7 December 2016 the Judicial Records Office of the Supreme Court issued an ENTRY OF JUDGMENT quoting in full the aforecited RESOLUTION, dated 7 December 2016, of the Supreme Court (3^rd Division).

7.     The DECISION, dated 2 May 2008, of this Honorable Court made the following awards in favor of the herein plaintiffs (Annexed “A-26 to A-27”):

(a)             Moral damages             –       P100,000.00;

(b)            Exemplary damages     –       P100,000.00;

(c)             Attorney’s fees              -        P210,429.76;

(d)            Litigation expenses      -        P100,000.00;

(e)             Costs of suit

8.     The DECISION, dated 17 February 2016, of the Court of Appeals (13^th Division) ruled as follows (Annex “B-12”):

(a)             It “affirmed with modifications” the Decision, dated 2 May 2008, of this Honorable Court;

(b)            It reduced the award of attorney’s fees to P100,000.00;

(c)             It deleted the award of litigation expenses;

(d)            It affirmed the award of moral damages of P100,000.00;

(e)             It affirmed the award of exemplary damages of P100,000.00; and

(f)              It affirmed the award of costs of suit.

No interest was awarded both by this Honorable Court and the Court of Appeals. However, as per the latest existing jurisprudence, the interest shall commence to run from finality of the judgment, which was on 7 December 2016 (Annex “F-1”, Motion for Writ of Execution).  The latest jurisprudence imposes an annual interest of 6% per annum, which is the new rate since July 1, 2013, as per a 2013 BSP Circular[1] issued in that year.  The judgment awards become a forbearance of money from the date of the finality thereof on 7 December 2016.[2]

9.    The herein plaintiffs hereby request the defendant xxx to prepare and release to the Court Sheriff a separate check of P100,000.00 in the name of their undersigned counsel, xxx, by way of his attorney’s fees, as awarded in the aforecited decisions of this Honorable Court and the Court of Appeals. 

Further, the  herein plaintiffs hereby request the Court Sheriff  in due time to release and turn over the said check to the undersigned counsel for the plaintiffs, xxx, as part of the implementation of the Writ of Execution.

WHEREFORE, premises considered, it is respectfully prayed that this ATTORNEY’S LIEN in favor of the undersigned counsel for the plaintiffs, x x x, in the amount of P100,000.00 be duly NOTED and APPROVED by this Honorable Court and that the same in due time be duly noted and enforced by the Court Sheriff in the implementation of the Writ of Execution.

          FURTHER, the plaintiffs and their undersigned counsel respectfully pray that in due time the defendant xxx be ordered to prepare and release to the undersigned counsel for the plaintiffs, x x x, a separate check in the amount of P100,000.00 by way of an award of attorney’s fees contained in the aforecited decisions of this Honorable Court and the Court of Appeals.

          FURTHERMORE, the plaintiffs and their undersigned counsel respectfully pray that the interest for the said amount of P100,000.00 be paid by the defendant xxx at the rate of 6% per annum from the date of finality of the judgment (7 December 2016) until the said attorney’s fee of P100,000.00 is fully paid, as per latest applicable jurisprudence.

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

          xxx City, xxx, 2017.

---

[1] Bangko Sentral ng Pilipinas Monetary Board in BSP-MB Circular No. 799.

[2] Land Bank of the Philippines v. Emmanuel C. Oñate, G.R. No. 192371, January 15, 2014; Fil-Estate Properties, Inc. and Fil-Estate Network, Inc. v. Spouses Conrado and Maria Victoria Ronquillo, G.R. No. 185798, January 13, 2014.