Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch VI
Bacolod City
-o0o-

RICHARD T. DIVINAGRACIA AND

CLINTON V. CAYAO,
Complainants,

NLRC RAB VI Case No. 10-10978-14

-versus-

VICTORIAS MILLING COMPANY/

FRANCIS FERRARIS, DEPT. HEAD/
EDUARDO CONCEPCION, PRESIDENT.
Respondents.
x------------------------------------------x

REPLY
(To Complainants’ Comment)

COME NOWRespondents, by the undersigned counsel, unto

the Honorable Labor Arbiter, most respectfully submit this Reply,
and hereby averring as follows:

1. After reading the most recent Comment filed by the

Complainants dated April 23, 2015, Respondents cannot sitin silence
to the arguments re-raised therein by Complainants;

2. First, the error in the manner of service of pleadings by

Complainants to Respondents was previously raised by
Respondents. As emphatically pointed out by the Respondents,
Complainants failed, if not refused to observe the long established
rule that for service of pleadings to the other party to be valid and
duly recognized as such under the law, the same must be made
through the said party's counsels on record;

3. Unfortunately, since the outset of this case, hardly have the

Complainants taken note ofthe names and official address of
Respondents' counsels which have been repeatedly and clearly
indicated in all their pleadings. Instead, they have opted to
repetitively state as addressee Miss Sheila Cabrestante, the Division Head
of another office, particularly working under Respondent VMC's

1
Human Resources and Organizational Development Office. Attached
for the perusal of the Honorable Arbiter are the envelopes of
pleadings sent by Complainants to herein Respondents;

4. In relation to the intent of this misaction by

Complainants, it is not Respondents' objective to presume, if not
expose the same into the open as it would be useless, if not damaging
if determined later on as true. Rather, what it simply seeks of this
Honorable Arbiter is to consider the fact that Complainants have
deliberately failed to comply with the requirements of the law, that is, they
failed to follow Section 2, Rule 13 of the Rules of Civil Procedure
which provides that if any party has appeared by counsel, service
upon him shall be made upon his counsel. As conclusively
established by the Honorable Supreme Court in its rulings in various
landmark cases, Respondents once more highlight that notice or
service made upon a party who is represented by counsel is a nullity:
Notice to the client and NOT TO HIS COUNSEL OF RECORD is
not notice in law;

5. To bolster the position of Respondents pertinent to this

issue, the essential portions of the ruling of the Supreme Court in the
case of NIDC-PNB vs. Court of Appeals, G.R. No. 117408, March 26,
1997, is hereby stated:

"Indeed, our ruling today is simply an application of the

more general rule that service of notice when a party is
represented by counsel should be made upon counsel at
the latter's "exact given address."The purpose of the rule
is to maintain a uniform procedure calculated to place in
competent hands the orderly prosecution of a party's
case. 2 Here Atty. Manzala had every right to expect that
notices intended for him would be delivered directly to
him and not be lumped together with all the other mail of
the PNB and thus avoid the possibility that important
court notices and processes might escape his notice. We
have time and again admonished attorneys to adopt a
system to insure the delivery to them of court processes.
We would be allowing a disregard of this admonition
were we to sanction the delivery of mail to attorneys at an
address other than that given by them." (emphasis ours)

6.Secondly, on the issue of the draft performance appraisal

reports which Complainants persistently claim as their official
performance appraisal ratings, Respondents reiterate the following
main points:
2
 a. the forms relied upon by the Complainants for their alleged
cause of actionwere among the many tentative performance
appraisal reports of the employees that had been cancelled
and invalidated prior to the submission of the final
performance evaluation reports to the HROD;

b.the cancellation of the said draft performance appraisal

reports, marked by a huge X sign, was made with the
knowledge, consent, understanding and signature by the
Complainants;

c. there was only one official performance appraisal report for

each Complainant that was submitted to HROD for
processing;

c. the scores shown in Complainants' official performance

appraisal forms were processed and computed by Respondent
VMC's HROD Office. After which, they yielded results for
Complainants that fell short of the standards for regularization
of the Company;

d. the Complainants were terminated from employment due to

their failure to qualify as regular employees based on
Respondent VMC's prescribed standards for evaluation.

7.It is only fair and proper that the official outcome of the
performance evaluation of Complainants should be afforded with
ample respect. So saddening that just because Complainants failed to
pass the standards set by their previous employer, they now cry foul
and accuse Respondents of illegal dismissal. Respondents cannot
easily succumb to the one-sided logic claimed by the Complainants,
because as Management, Respondents are entitled to formulate their own
reasonable judgment and to execute their own decisions. After all,
Complainants should not forget that the assessment of adequate duty
performance appraisal of an employee is in nature of a management
prerogative, therefore an employer's right that Respondent VMC can
freely exercise;
8.Thirdly, as regards the plea of Complainants for the
expunction of the affidavits of Respondents' witnesses, Respondents
hold that the same is misplaced;

9.As already discussed by the Respondents in their earlier

Comment, the documents challenged by the Complainants have
been duly signed by the Affiants.The said Affiants have declared and
can even further declare, if required by this Honorable Arbiter, that the
3
attestations made by them in their respective affidavits were all
voluntarily executed;

10.As underscored by the Respondents in their previous

pleading, the claim of Complainants does not hold water since even
assuming without admitting that there was indeed an irregularity in
the notarization of the challenged affidavits,still, the law has
consistently declared that any irregularity in the notarization or even the
lack of notarization DOES NOT,IN ANY WAY, AFFECT THE VALIDITY
OF THE DOCUMENT;

11.Moreover, until and unless it is proven by judgment that Atty.

Aspan, as Complainants allege, was remiss in her notarial duties, Respondents
wish to emphasize that the assailed notarized documents enjoy the
presumption of regularity under the law, hence, the Complainants
cannot simply ask for the expunction of the affidavits from the records of
the case. Otherwise, if the same is done, this is tantamount to a denial of
due process in the part of Atty. Aspan, as well as of the Respondents,
which is patently violative of their basic rights expressly granted by the
Constitution;

12.To supportthis contention, Respondents cites the case of

SPOUSES WILFREDO PALADA and BRIGIDA PALADA cs. SOLID
BANK CORPORATION, G.R. No. 172227, June 29, 2011, where the
Honorable Supreme Court has ruled that:

" and the mere fact that the date of execution was left blank
does not prove bad faith. Besides, any irregularity in the
notarization or even the lack of notarization does not affect the
validity of the document.Absent any clear and convincing
proof to the contrary, a notarized document enjoys the
presumption of regularity and is conclusive as to the
truthfulness of its contents."

13.Lastly, for the kind attention of this Honorable Arbiter,

Respondents most respectfully direct to the fact that the
Complainants have, from the very beginning, failed to comply with
A.M. No. 11-9-4-SC, or the Efficient Paper Rule, specifically, the
requirements on:

Sec. 3.Format and Style. - a) All pleadings, motions, and

similar papers intended for the court and quasi-judicial
body's consideration and action (court-bound papers)
shall be written in single space with a oneand-a-half
space between paragraphs, using an easily readable font

4
 style of the party's choice, of 14-size font, and on a 13-
inch by 8.5-inch white bond paper;

Sec. 4.Margins and Prints. - The parties shall maintain

the following margins on all court-bound papers: a left
hand margin of 1.5 inches from the edge; an upper
margin of 1.2 inches from the edge; a right hand margin
of 1.0 inch from the edge; and a lower margin of 1.0 inch
from the edge. Every page must be consecutively
numbered;

14.If all the exchanges of pleadings between the parties are

carefully reviewed, the same would reveal that Complainants have
blatantly violated several rules on procedure. These apparently are
not mere inadvertence as they have been repeatedly done despite
being pointed out by the Respondents for numerous times already.
Such acts are therefore inexcusable, thus the ruling in the case of
Building Care Corporation vs. Myrna Macaraeg, G.R. No. 198357,
December 10, 2012,must be properly applied. It reads in essence:

“It should be emphasized that the resort to a liberal

application, or suspension of the application of
procedural rules, must remain as the EXCEPTIONto the
well-settled principle that rules must be complied with
for the orderly administration of justice. In Marohomsalic
v. Cole, the Court stated: While procedural rules may be
relaxed in the interest of justice, it is well-settled that these
are tools designed to facilitate the adjudication of cases.
The relaxation of procedural rules in the interest of
justice was never intended to be a license for erring
litigants to violate the rules with impunity. Liberality in
the interpretation and application of the rules can be invoked
onlyin proper cases and under justifiable causes and
circumstances. While litigation is not a game of
technicalities, every case must be prosecuted in
accordance with the prescribed procedure to ensure an
orderly and speedy administration of justice.

xxx

The later case of Daikoku Electronics Phils., Inc. v. Raza,

further explained that:

To merit liberality, petitioner must show reasonable cause

justifying its noncompliance with the rules and must
5
 convince the Court that the outright dismissal of the
petition would defeat the administration of substantial
justice. x xxThe desired leniency cannot be accorded
absent valid and compelling reasons for such a procedural
lapse. x xxWe must stress that the bare invocation of “the
interest of substantial justice” line is not some magic want that
will automatically compel this Court to suspend procedural
rules.Procedural rules are not to be belittled, let alone
dismissed simply because their nonobservance may have
resulted in prejudice to a party's substantial rights. Utter
disregard of the rules cannot be justly rationalized by
harping on the policy of liberal construction.”

15.In view of all the legal procedural lapses committed by the

Complainants, not to mention the lack of substantial grounds in this
case,Respondents most respectfully and fervently ask of the
Honorable Arbiter that Complainants’ pleadings be considered as
not filed and be expunged from the records of this case.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed

that the instant case be DISMISSED for utter lack of merit. It is
likewise prayed that this Reply be noted and that the pleadings filed
by the Complainants be deemed as mere scraps of paper andnot
having been filed and be expunged from the records of the case or in
the alternative, take judicial notice of the Orders, Issuances, and
Supreme Court rulings relative to the present corporate stance of
Respondent VMC, and to issue an Order suspendingthe proceedings
in this instant against Respondent VMC until such time the said
suspension is lifted by the Securities and Exchange Commission.
FURTHER, the Respondents respectfully pray for such and
other reliefs as may be deemed just and equitable in the premises.

Victorias City for Bacolod City, Philippines, May 17, 2015.

ATTYS. EVA A. VICENCIO-RODRIGUEZ

& JUL DAVI P. SAEZ
Counsels for Respondents
Victorias Milling Company, Inc.
VMC Compound
Victorias City, Negros Occidental
Telephone No. (034) 399-3588
6
 By:

JUL DAVI P. SAEZ

Roll of Attorneys No. 59882
IBP OR No. 929572, October 24, 2014, Negros Occidental
PTR No. 0228168, September 29, 2014, Victorias City
MCLE Compliance IV – 0022840, January 13, 2014

COPY FURNISHED:

RICHARD T. DIVINAGRACIA
Hda.Buenas Aires, Brgy. Consing
EB Magalona, Negros Occidental

CLINTON V. CAYAO
Triumpo St. Estrella Village,
Brgy. 6, Victorias City
Negros Occidental

EXPLANATION

The foregoing Replyis being furnished to interested parties by

registered mail with return card due to distance and lack of office
personnel to effect delivery which makes personal service thereof
impracticable.

JUL DAVI P. SAEZ