Elite Comment To Appeal - Final

Republic of the Philippines
Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City
ARNEL L. ENRILE,
Complainant/Appellant,
versus NLRC RAB No. NCR 11 14204 14
ELITE GLOBAL SOURCING

and Johhny Paek.
Respondents/Appellees.
x-----------------------------------------x
COMMENT TO
COMPLAINANT’S APPEAL
COMES NOW, respondents/appellees, by the undersigned counsel unto the

Honorable Commission, most respectfully state:
1. That in his appeal, complainant prays that he be given the following:
a. Service Incentive Leave;

b. 13th month Pay;
c. Separation Pay;
d. Moral Damages in the amount of Php 150,000.00;
e. Exemplary Damages;
f. Ten percent (10%) of the total award;
(See Prayer of complainant found in his Appeal Memorandum dated June 1,

2015);
2. That said claims should all be denied by the Honorable Commission for
lack of basis in law and in facts;
ON COMPLAINANT’S CLAIM FOR

SERVICE INCENTIVE LEAVE
3. Complainant alleged on par. 11 of his Appeal Memorandum that: “… On

January 6, 2104 the Respondent/Appellees hired the services of the
Private Complainant Appellant as its Sales and Business Development
…”;
4. On par. 19 of the said Appeal Memorandum, complainant-appellant

alleges that “… On October 3, 2014 at exactly 5:20 P.M. Mr, Romulo
1
Reyes and Ms. Kathy Rodriguez gave me a Notice to the Employee :
Retrenchment to the Employee..”;
5. With the complainant’s own admission, it is very clear that he worked in

the respondent only for less than nine (9) months or from January 6, 2014
to October 3, 2014 as a managerial employee;
6. This make him not entitled to Service Incentive Leave;
7. Article 82 of the New Labor Code provides:
“… The provisions of this Title shall apply to

employees in all establishments and undertakings
whether for profit or not, but not to government
employees, managerial employees, field personnel,
members of the family of the employer who are
dependent on him for support, domestic helpers, persons
in the personal service of another, and workers who are
paid by results as determined by the Secretary of Labor
in appropriate regulations...”
8. This only means that Book 3 (Conditions of Employment), Title 1

(Working Conditions) applies only to rank and file employees not to a
manager just like the complainant;
9. Besides Article 95 of the New Labor Code specifically provides:
“… Right to service incentive leave. - (a) Every employee who

has rendered at least one year of service shall be entitled to a
yearly service incentive leave of five days with pay.
10.The law is very clear, it need no further discussion;
11.Since the complainant is a managerial employee who has only rendered

service in the respondent company for less than a year, he is certainly not
entitled to service incentive leave;

13th MONTH PAY
12.As stated above, complainant admitted that his position in the respondent
company is that of a Sales and Business Development Manager, thus he
is not entitled to be paid 13th Month pay;
2
13.Presidential Decree No. 851 (otherwise known as the 13th Month Pay
Law as amended by Memorandum Order No. 28) requires all employers
to pay their employees a 13th Month Pay not later than December 24 of
every year;
14.But this applies only to rank and file employees regardless of their
designation or employment status, and irrespective of the method by
which their wages irrespective of the method by which their wages are
paid, provided that they have worked for at least one month during a
calendar year;
15. According to the Labor Code, all employees not falling within the
definition of a managerial employee are considered rank-and-file
employees;
16. A managerial employee is one who is vested with powers of prerogatives

to lay down and execute management policies and/or to hire, transfer,
suspend, lay-off, recall discharge, assign or discipline employees, or to
effectively recommend such managerial actions.
17. Being a Sales and Business Development Manager the complainant

definitely is not entitled to 13th month pay;

SEPARATION PAY
18. The Honorable Labor Arbiter who tried the case correctly ruled that the
complainant’s dismissal was valid and for a cause, hence he is not receive
separation pay;
19.Noteworthy to mention that complainant was hired by the respondent to

become its Sales and Business Development Manager on January 6,
2014;
20.As such, he was charged to bring in clients that will bring forth earnings
for the company;
21.This is the obligation of the complainant on the day that he was hired;
22.But complainant run short on his commitment as he was not able to

garner any client pursuant to his function as a Sales Development
Manager;
23.No client means no profit for the respondent giving it shivers on the
possibility of being bankrupt;
3
24.Thus, the correct ruling of the Honorable Labor Arbiter who finds the
complainant/appellant’s dismissal as valid due to inefficiency;
25.Said the Supreme Court on this matter:
“…. Inefficiency implies negligence, incompetence,

ignorance and careless.( Cuaresma v. Enriquez, A.M. No. MTJ-
91-608,Sept. 20,1995, 248 SCRA 454; Suroza v. Honrado, A.M
No. 2026-CFI Dec. 19, 1981, 196 Phil. 514).
Negligence is the want or lack of care required by the

circumstances.(Cruz v. Gangan, G.R. No. 143403, Jan 22,
2003, 443 Phil. 856, citing Valenzuela v. CA, G.R. No.115024,
Feb. 7, 1996, 323 Phil. 374).
Thus, the practice of employers in laying off workers

because they failed to make the work quota has been
recognized as valid in this jurisdiction.(Philippine American
Embroideries v. Embroidery and Garment Workers, G.R. No. L-
20143, Jan. 27, 1969, 26 SCRA 634,639).
In Buiser v. Leagardo, Jr.,[G.R No.L-63316, July 13,

1984, 131 SCRA 151], the petitioners’ failure to meet the sales
quota assigned to each of them was deemed a just cause for
their dismissal, regardless of the permanent or probationary
status of their employment. Failure to observe prescribed
standards of work, or to fulfill reasonable work assignment due
to an inefficiency, well constitutes a just cause for dismissal.
Such inefficiency is understood to mean failure to attain work
goals or work quota, other by failing to complete the same
within the allotted reasonable period, or by producing
unsatisfactory result. This management prerogative of requiring
standards may be availed of so long as they are exercised in
good faith for the advancement of the employer’s interest.(see
also Skippers United Pacific, Inc. v. Maguad, G.R. No. 166363,
Aug. 15, 2006).
26. This is what actually happened in the instant case;
27.The complainant/appellant failed to meet one of his obligation which is

to meet the sales quota of the respondent company;
28.Thus respondents was constrained to talk to the complainant for his

eventual termination with a separation package of Php 214,766.57;
4
29.This package was unreasonably refused by the complainant and instead
filed a labor complaint;
30.In the hearing of the said complaint before the Office of the Honorable
Arbiter on February 13, 2015, respondents gave the complainant an
Unconditional Offer for Actual Reinstatement;
(Photocopy of the said document is attached herein as ANNEX “1” to

form an integral part hereof);
31.The said offer was witnessed by the Labor Associate who presided the
aforementioned hearing and in fact captured the said incident in the
Minutes;
32. The said Minutes bear out:
“… Parties appeared and submitted their Position

Papers. Respondent likewise filed before this Office copy
of Unconditional Offer for Actual Reinstatement – copy
of which was received by complainant…”
(Photocopy of the said Minute is attached herein as ANNEX “2” to form an

integral part hereof);
33. However, the complainant vehemently refused to go back to his

employment;
34.His claim for separation pay must therefore be denied;

MORAL DAMAGES
35.Art. 2217 of the New Civil Code provides:
“… Moral damages include physical suffering, mental anguish,

fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury. Though incapable
of pecuniary computation, moral damages may be recovered if they
are the proximate result of the defendant’s wrongful act for
omission...”
5
36.To summarize the rule on moral damages is to mention Nazareno v. City
of Dumaguete where the Supreme Court expounded on the requisite
elements for a litigant’s entitlement to moral damages, thus:
“… Moral damages are awarded if the following elements exist

in the case:
(1) an injury clearly sustained by the claimant;
(2) a culpable act or omission factually established;
(3) a wrongful act or omission by the defendant as the

proximate cause of the injury sustained by the claimant; and
(4) the award of damages predicated on any of the cases stated

Article 2219 of the Civil Code. In addition, the person claiming
moral damages must prove the existence of bad faith by clear
and convincing evidence for the law always presumes good
faith…”
37.Due to the foregoing, it is very clear that the claim for moral damages by
the plaintiff should be denied;
38.Going over the pleadings filed by the complainant, it was very clear that
he has not offered any evidence or proof that any of the respondents were
guilty of bad faith;
39.Noteworthy is the Supreme Court’s ruling in the case of Garcia vs.

NLRC, 234 SCRA632, which held that “ Moral damages are recoverable
in dismissal only where the dismissal was attended by bad faith or fraud
or constituted an act oppressive to labor, or was done in a manner
contrary to morals, good customs or public policy. Exemplary damages in
dismissal cases may be awarded only of the dismissal was effected in
wanton, oppressive or malevolent manner.” (emphasis ours);
40.In the case bar, the records clearly established the contrary;.
41.It bears noting that respondents were engaged in the lawful exercise of
their managerial prerogatives in their dealings with the complainant;
6
42.As correctly ruled by the Honorable Arbiter that tried the case,
complainant’s dismissal was valid and for cause;
43.Thus his claim for moral damages should be put to a naught;
ON COMPLAINANT’S CLAIM
FOR EXEMPLARY DAMAGES
44.As to the claim for exemplary damages, the New Civil of the
Philippines provides that an individual is not entitled thereto if he fails to
prove that he is entitled to moral, temperate or compensatory damages;
45.The law provides:
“… Art. 2229. Exemplary or corrective damages are imposed,

by way of example or correction for the public good, in addition to the
moral, temperate, liquidated or compensatory damages.
Art. 2234. While the amount of the exemplary damages need

not be proved, the plaintiff must show that he is entitled to moral,
temperate or compensatory damages before the court may consider
the question of whether or not exemplary damages should be
awarded. In case liquidated damages have been agreed upon,
although no proof of loss is necessary in order that such liquidated
damages may be recovered, nevertheless, before the court may
consider the question of granting exemplary in addition to the
liquidated damages, the plaintiff must show that he would be entitled
to moral, temperate or compensatory damages were it not for the
stipulation for liquidated damages. (Underscoring supplied).
46.It is clear from the provisions of the New Civil Code that exemplary
damages cannot be awarded independently where there are no award of
moral, temperate or compensatory damages;
47.Aptly, the law requires that before the Court considers the question of
whether or not exemplary damages should be awarded to an individual, it
should consider first if he is entitled to moral, temperate or
compensatory damages;
7
48.As discussed above, complainant should not be awarded moral damages;
49.As to temperate or compensatory damages, complainant is likewise not

entitled thereto for there is no findings that the he suffered a pecuniary
loss that from its very nature cannot be proven with certainty or that it
suffered any pecuniary loss at all;
50.Article 2224 of the New Civil Code provides:
Article 2224 “… Temperate or moderate damages,

which are more than nominal but less than compensatory
damages, may be recovered when the court finds that some
pecuniary loss has been suffered but its amount cannot, from
the nature of the case, be provided with certainty..”
Art. 2199. Except as provided by law or by stipulation,
one is entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory
damages.
51.In fact, complainant is not even claiming temperate or compensatory

damages in the petition in filed;
52.To repeat, complainant should not be awarded exemplary damages for

being not entitled to moral, temperate or compensatory damages;
AS TO COMPLAINANT’S CLAIM
FOR ATTORNEYS FEES
53.Lastly, complainant should not also be awarded atty’s fees for the
respondents were not guilty of violating the complainant’s rights.
WHEREFORE, premises considered, it is most respectfully prayed that the

instant appeal be dismissed for lack of merit.
Other reliefs and remedies just and equitable under the premises are
also prayed for.
ATTY.PEARLITO B. CAMPANILLA
8
Suite B. 2nd Floor Overland Park Bldg.,
No. 245 Banawe St. cor Quezon Ave., Quezon City
PTR 0560706 1-5-15 QC
IBP 888280 2-03-12 Pasig City
Roll No. 37522
MCLE Compliance No. IV-0018064 4-25-13 Pasig City.
cc.
ARNEL L. ENRILE
Republic of the Philippines)
Quezon City ) s.s.
VERIFICATION
I, Romulo A. Reyes, of legal age, under oath depose and state:

That I am the authorized representative of the respondent company;
That I have caused the preparation and filing of the foregoing pleading;
That I have read and understood the allegations therein and they are true and
correct based on my own personal knowledge and documents in my possession;
Romulo A. Reyes
SUBSCRIBED AND sworn to before me this ___ day of _________ 2015

affiant is personally known to the Notary Public.
Doc No. ____;

Page No. ___;
Book No. ___;
Series of 2015

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Republic of the Philippines

Department of Labor and Employment

versus NLRC RAB No. NCR 11 14204 14

ELITE GLOBAL SOURCING

COMES NOW, respondents/appellees, by the undersigned counsel unto the

1. That in his appeal, complainant prays that he be given the following:

a. Service Incentive Leave;

(See Prayer of complainant found in his Appeal Memorandum dated June 1,

ON COMPLAINANT’S CLAIM FOR

3. Complainant alleged on par. 11 of his Appeal Memorandum that: “… On

4. On par. 19 of the said Appeal Memorandum, complainant-appellant

5. With the complainant’s own admission, it is very clear that he worked in

6. This make him not entitled to Service Incentive Leave;

7. Article 82 of the New Labor Code provides:

“… The provisions of this Title shall apply to

8. This only means that Book 3 (Conditions of Employment), Title 1

9. Besides Article 95 of the New Labor Code specifically provides:

“… Right to service incentive leave. - (a) Every employee who

10.The law is very clear, it need no further discussion;

11.Since the complainant is a managerial employee who has only rendered

ON COMPLAINANT’S CLAIM FOR

16. A managerial employee is one who is vested with powers of prerogatives

17. Being a Sales and Business Development Manager the complainant

ON COMPLAINANT’S CLAIM FOR

19.Noteworthy to mention that complainant was hired by the respondent to

22.But complainant run short on his commitment as he was not able to

25.Said the Supreme Court on this matter:

“…. Inefficiency implies negligence, incompetence,

Negligence is the want or lack of care required by the

Thus, the practice of employers in laying off workers

In Buiser v. Leagardo, Jr.,[G.R No.L-63316, July 13,

26. This is what actually happened in the instant case;

27.The complainant/appellant failed to meet one of his obligation which is

28.Thus respondents was constrained to talk to the complainant for his

(Photocopy of the said document is attached herein as ANNEX “1” to

32. The said Minutes bear out:

“… Parties appeared and submitted their Position

(Photocopy of the said Minute is attached herein as ANNEX “2” to form an

33. However, the complainant vehemently refused to go back to his

34.His claim for separation pay must therefore be denied;

ON COMPLAINANT’S CLAIM FOR

35.Art. 2217 of the New Civil Code provides:

“… Moral damages include physical suffering, mental anguish,

“… Moral damages are awarded if the following elements exist

(1) an injury clearly sustained by the claimant;

(2) a culpable act or omission factually established;

(3) a wrongful act or omission by the defendant as the

(4) the award of damages predicated on any of the cases stated

39.Noteworthy is the Supreme Court’s ruling in the case of Garcia vs.

43.Thus his claim for moral damages should be put to a naught;

45.The law provides:

“… Art. 2229. Exemplary or corrective damages are imposed,

Art. 2234. While the amount of the exemplary damages need

49.As to temperate or compensatory damages, complainant is likewise not

50.Article 2224 of the New Civil Code provides:

Article 2224 “… Temperate or moderate damages,

51.In fact, complainant is not even claiming temperate or compensatory

52.To repeat, complainant should not be awarded exemplary damages for

WHEREFORE, premises considered, it is most respectfully prayed that the

SUBSCRIBED AND sworn to before me this _ day of _______ 2015