Compliance guide for the Employers.

 

                            This table explains the coverage of the monetary benefits of an employee in a company, by classifying the company with 1-5 workers, 1-9 workers and 10 and more workers. 

source: 2022_02_22_Handbook_on_Workers_Statutory_Monetary_Benefits_2022_edition (1).pdf

Example of Memorandum on Appeal

 

MEMORANDUM ON APPEAL 

            The COMPLAINANT-APPELLANT _____________________________, thru counsel, by way of APPEAL, respectfully states: 

The PARTIES:

Complainant-Appellant is Filipino, married, of legal age and a resident of ______________________.

Respondent-Appellee is likewise Filipino, married, of legal age and a resident of _______________________;

                            INTRODUCTION

The subject matter of this Memorandum on Appeal is the DECISION, dated June 30, 2023, of Labor Arbiter _________________________, declaring herein Complainant-Appellant as not dismissed by respondent and that he is entitled only to 13^th month pay and attorney’s fees in the amount of THIRTY-THREE THOUSAND PESOS (P33,000.00) .

                                                       TIMELINESS

The herein Complainant- Appellant received on August 8, 2023, a copy via registered mail of the questioned Decision, dated June 30, 2023, hence, his tenth day to file this Memorandum on Appeal shall expire on August 18, 2023, as per Rule VI of the 2011 NLRC Rules of Procedure.

      ADOPTION CLAUSE

For the record and for convenience, the herein Complainant- Appellant hereby adopts into this Memorandum on Appeal, by incorporation and reference, all the allegations and arguments stated in --- as well as all the supporting documents annexed to --- (a) his MAIN POSITION PAPER filed with the Arbiter a quo on March 3, 2023;

ISSUES

The herein Complainant- Appellant respectfully submits that the Labor Arbiter a quo abused his discretion and committed serious errors of fact and law which, if not corrected, would cause grave or irreparable damage or injury to the Complainant- Appellant in finding that the Complainant- Appellant was:

a.     not forcefully and abruptly dismissed from service in 2022,

b.    not entitled to separation pay, overtime pay, premium for holiday pay and rest day and

c.     not entitled to moral and exemplary damages.

   DISCUSSION

FACTS OF THE CASE

Complainant - Appellant was hired by Respondent-Appellee as caretaker of several properties from May 4, 2013 until his abrupt dismissal from service in 2022. The point of contention and cause of the rift stemmed from the insistence of Complainant - Appellant and the deliberate and obstinate refusal of Respondent-Appellee to represent him as his employer in the payment of monthly SSS benefits and instead instructed him to file as “self-employed”. Thus, he was told not to report to work because he reported him to DOLE, during their last conciliation-mediation dated November 29, 2022 at around 10:00 am at DOLE Dumaguete City and presided by _____________________, Administrative Aide VI of DOLE. In their defense, respondent alleged that it was the Complainant - Appellant who voluntarily resigned because of the Respondent-Appellee’s refusal to grant him a loan in the amount of one hundred thousand pesos (P100,000). Complainant - Appellant allegedly wanted the loan to be unconditional but Respondent-Appellee wanted to put it into writing. Feeling aggrieved, Complainant - Appellant reported Respondent-Appellee to DOLE and vacated the premises occupied by him. Complainant - Appellant subsequently filed a case with the Labor Arbiter. After the submission of the respective pleadings of both parties, in its Decision dated July 31, 2023, the Labor Arbiter found that the Complainant - Appellant was not dismissed by Respondent-Appellee and awarded him the amount of thirty three thousand pesos as payment of service incentive leave and attorney’s fees. Hence, this appeal. 

ARGUMENTS

1.       COMPLAINANT - APPELLANT WAS DISMISSED FROM WORK.

Philippine jurisprudence is replete with cases wherein the security and well-being of an employee is given the utmost importance as Labor Law, imbued with social justice, seeks to protect the rights of an employee above everything else.

In the case at hand, the Labor Arbiter ruled that Complainant - Appellant was not dismissed from his work and agreed with the Respondent- Appellee that he left or voluntarily resigned when he vacated the premises that he used while working with the Respondent- Appellee after there was tension between the two after Complainant- Appellant felt aggrieved that he was not granted a loan.

Furthermore, the Labor Arbiter based the facts of the case on the affidavit executed by witnesses of Respondent- Appellee which is a COMPLETE LIE, and should be dealt by law for lying to favor one of the parties in a case, it is also self-serving and is not supported by evidence to warrant the justification and award for damages.

The following are the untruthful statements claimed in the Affidavit:

1.    That the Complainant- Appellant was employed by the Respondent-Appellee last 2018, which is incorrect. He was hired last 2013, after the apartment was turned over by the engineer to the Respondent – Appellee.

2.    That truth is that he was required to work on Sunday and will only be excused if the Respondent – Appellee would allow him not to work on Sunday and Holiday.

3.    The two witnesses should have no knowledge about the bonus because they were hired last November 2022 and the Complainant – Appellant was terminated on that month also.

4.    That Complainant -Appellant would even ask the Respondent – Appellee if he would be paid double pay for working on holidays like Christmas and New Year day.

5.     That the Respondent- Complainant was the one who offered the Complainant-Appellant to stay in the premises.

6.    And about the loan, yes it is true that he applied for a loan of One hundred thousand pesos (P100,000) with Respondent-Appellee, because he wanted to buy a lot for himself. But the Respondent- Complainant said that he will only approve his loan only if his name will be on the Deed of Absolute Sale, instead of the Complainant-Appellant. That is when the Complainant-Appellant withdrew his application for a loan with the Respondent-Appellee.

The discussion set forth by the Supreme Court in the case of JR HAULING SERVICES AND OSCAR MAPUE vs. GAVINO L. SOLAMO, RAMIL JERUSALEM, ARMANDO PARUNGAO, RAFAEL CAPAROS, JR., NORIEL SOLAMO, ALFREDO SALANGSANG, MARK PARUNGAO AND DEAN V. CALVO (G.R. No. 214294, September 30, 2020) is particularly instructive.

     “it is a well-established rule that the party-litigant who alleges the existence of a fact or thing necessary to establish his/her claim has the burden of proving the same by the amount of evidence required by law, which, in labor proceedings, is substantial evidence, or "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." To be clear, in the hierarchy of evidentiary values, "proof beyond reasonable doubt is placed at the highest level, followed by clear and convincing evidence, preponderance of evidence, and substantial evidence, in that order." Thus, in the hierarchy of evidence, it is the least demanding. "Corollarily, the ground for the dismissal of an employee does not require proof beyond reasonable doubt." The quantum of proof required is merely substantial evidence - which only entails evidence to support a conclusion, "even if other minds, equally reasonable, might conceivably opine otherwise.

          x xx

The rules of evidence prevailing in courts of law do not control proceedings before the labor tribunals where decisions may be reached on the basis of position papers, accompanied by supporting documents, including affidavits of witnesses, and other allied pleadings. 

Thus, in Bantolino v. Coca Cola Bottlers Phils. Inc.,66 this Court held that:

[A]dministrative bodies like the NLRC are not bound by the technical niceties of law and procedure and the rules obtaining in courts of law. Indeed, the Revised Rules of Court and prevailing jurisprudence may be given only stringent application, i.e., by analogy or in a suppletory character and effect. The submission by respondent, citing People v. Sorrel, that an affidavit not testified to in a trial, is mere hearsay evidence and has no real evidentiary value, cannot find relevance in the present case considering that a criminal prosecution requires a quantum of evidence different from that of an administrative proceeding. x xx(Citation omitted)

x xx

Along the same lines, we held in Southern Cotabato Development and Construction Inc. v. National Labor Relations Commission 68 that Article 221 (now 227) of the Labor Code, as amended, provides that "the rules of evidence prevailing in courts of law or equity [shall not be controlling]" and that the LA and the NLRC shall "use every and all reasonable means to ascertain the facts in each case speedily and objectively and without regard to technicalities of law and procedure, all in the interest of due process." Clearly, to disregard the affidavits on the ground that they were taken ex-parte would necessarily require the application of the technical rules of evidence and thereby negate the purpose of the summary nature of labor proceedings mandated by the Labor Code and the NLRC Rules of Procedure.

The Labor Arbiter contended that Complainant - Appellant failed to produce any iota of proof of the termination of his employment.  His dismissal from his work was made verbally. He was told not to report to work because he reported him to DOLE. This happened during their last conciliation-mediation dated November 29, 2022 at around 10:00 am at DOLE ___________________ and presided by ________________________, Administrative Aide VI of DOLE. It was a private concern where there was no witness or rather cannot be a witness, as per Department Order 151-16 Section 9. Confidentiality of Proceedings and Minutes. - Information and statements given in confidence at the conciliation-mediation proceedings shall be treated as privileged communication and shall not be used as evidence in any arbitration proceedings, except when there is waiver of confidentiality.

The Respondent-Appellee had the upper hand. A person who has been dependent on the generosity of another for living wages cannot dare question or protest that order. His subsequent abandonment of his living quarters was proof that respondent had told him to leave. Also he did not tender any resignation letter to prove that he voluntarily left his assignment.

Furthermore, the fact that he stayed with his employer for 10 years, is a clear statement on his side that he like his job with the said employer and he cannot just leave his job without being ask to leave because his employment is his bread and butter.

Indeed, an act, to be considered as amounting to constructive dismissal, must be a display of utter discrimination or insensibility on the part of the employer so intense that it becomes unbearable for the employee to continue with his employment.

The subsequent leaving of the Complainant- Appellant was a direct result of these acts. In fact, the tension between the two parties was noted by the witnesses of the Respondent-Appellee, ____________________________, but they attributed the blame to Complainant-Appellant.

As aforementioned, the Labor Arbiter is tasked with the responsibility of determining the veracity and truthfulness of the claims of both parties while at the same time keeping in mind the well-being of the employee as its primordial importance. The action of the Labor Arbiter is bereft and wanting in this case.

Likewise, in G.R. No. 218282, September 09, 2020 REDENTOR Y. AGUSTIN, PETITIONER, VS. ALPHALAND CORPORATION, ET AL., RESPONDENTS stated that the dismissal of regular employees by the employer requires the observance of the two-fold due process, namely: (1) substantive due process; and (2) procedural due process. The Respondent-Appellee failed to observe both substantive and procedural due process in dismissing Complainant- Appellant from employment. Substantive due process means that the dismissal must be for any of the: (1) just causes provided under Article 297 of the Labor Code or the company rules and regulations promulgated by the employer; or (2) authorized causes under Article 298 and 299 thereof. None of these causes exist. Furthermore, the Respondent-Appellee did not observe the procedural due process in terminating an employee.

2.       COMPLAINANT- APPELLANT IS ENTITLED TO SEPARATION PAY, OVERTIME PAY, AND PREMIUM FOR HOLIDAY PAY AND REST DAY.

In claims for payment of salary differential, service incentive leave, holiday pay and 13th month pay, the burden rests on the employer to prove payment. This likewise stems from the fact that all pertinent personnel files, payrolls, records, remittances and other similar documents - which will show that the differentials, service incentive leave and other claims of workers have been paid - are not in the possession of the worker but are in the custody and control of the employer.

In this case nothing in the record of the case that showed that the employer pay the Complainant - Appellant with Premium Pay for holiday and rest day and 13th month pay. The Respondent - Appellee only manifested in the Affidavit that his former employees were receiving such benefits.

In illegal dismissal cases, where reinstatement is no longer viable as an option, separation pay equivalent to one (1) month salary for every year of service should be awarded as an alternative. It must be emphasized that this payment of separation pay is in addition to payment of back wages. A fraction of at least six (6) months shall be considered as one (1) whole year.

Wenphil Corporation v. Abing G.R. No. 207983, 07 April 2014, ..the relief of separation pay may be granted in lieu of reinstatement but it cannot be a substitute for the payment of backwages. In instances where reinstatement is no longer feasible because of strained relations between the employee and the employer, separation pay should be granted. In effect, an illegally dismissed employee should be entitled to either reinstatement - if viable, or separation pay if reinstatement is no longer be viable, plus backwages in either instance. The rationale for such policy of distinction was vividly explained in Santos v. NRC under these terms: Though the grant of reinstatement commonly carries with it an award of backwages, the inappropriateness or non-availability of one does not carry with it the inappropriateness or non-availability of the other. Separation pay was awarded in favor of petitioner Lydia Santos because the NLRC found that her reinstatement was no longer feasible or appropriate. As the term suggests, separation pay is the amount that an employee receives at the time of his severance from the service and, as correctly noted by the Solicitor General in his Comment, is designed to provide the employee with "the wherewithal during the period that he is looking for another employment." .. Put a little differently, payment of backwages is a form of relief that restores the income that was lost by reason of unlawful dismissal; separation pay, in contrast, is oriented towards the immediate future, the transitional period the dismissed employee must undergo before locating a replacement job..

We [the Supreme Court] emphasize that the basis for the payment of backwages is different from that of the award of separation pay. Separation pay is granted where reinstatement is no longer advisable because of strained relations between the employee and the employer. Backwages represent compensation that should have been earned but were not collected because of the unjust dismissal. The basis for computing separation pay is usually the length of the employee's past service, while that for backwages is the actual period when the employee was unlawfully prevented from working. Whereas separation pay was only paid to employee separated through authorized causes as provided in the Labor Code, the above jurisprudence provided for additional circumstances: in lieu of reinstatement and as an act of social justice.

3.       COMPLAINANT - APPELLANT IS ENTITLED TO DAMAGES

The Labor Arbiter ruled that Complainant- appellant is not entitled to damages because of failure to prove the basis thereof.

The Labor Arbiter once again failed to recognize that the Supreme Court has consistently ruled time and again in favor of the working class and granted them a right to recover damages for dismissals tainted with bad faith.

The award of such damages is based not on the Labor Code but on Article 2220 of the Civil Code. Indeed, moral damages are recoverable when the dismissal of an employee is attended by bad faith or fraud or constitutes an act oppressive to labor, or is done in a manner contrary to good morals, good customs or public policy. Exemplary damages may be awarded if the dismissal is effected in a wanton, oppressive or malevolent manner.

Time and again, in labor cases, the livelihood, the name and the reputation of the employee is what is at stake. Employees are expendable. They can easily be replaced. It is for that reason why the law favors the working man above all else.

   PRAYER

WHEREFORE, premises considered, it is respectfully prayed:

1.    That the appealed DECISION, dated July 30, 2023, be MODIFIED;

2.    That the Complainant-Appellant be declared as having been DISMISSED by the Respondent - Appellee.

3.    That the Respondent - Appellee be ordered to pay or issue to the Complainant - Appellant, as the case may be the following amounts:

          A.  Separation pay

B.  Overtime pay

C.  Premium for holiday pay and rest day

           D.  Moral and exemplary damages

           E. Attorney’s Fees equivalent to Ten Percent (10%) of the damages awarded.

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

ATTY. ______________________

Counsel for the Complainant- Appellant

Roll No. XXXXX

PTR. No. XXXXXX

IBP No. XXXXXXX

MCLE No. VII-0015413 until 4/14/2025

XXXXXXXXX

VERIFICATION

AND

ANTI-FORUM SHOPPING CERTIFICATION

            I, ________________________, of legal age, married, Filipino, and with postal address at ____________________, under oath, depose: 

That I am the Complainant-Appellant in the foregoing Memorandum of Appeal; that I caused the preparation thereof; that I have read its contents; and that the same are true and correct of my own direct/personal knowledge and based on authentic records.

            Further, pursuant to Rule 7 of the 1997 Rules of Civil Procedure in relation to the 2011 NLRC Rules of Procedure, I hereby certify that I have not heretofore commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that to the best of my knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; and that if I should hereafter learn that other similar or related actions or proceedings has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I undertake to report that fact within five (5) days therefrom to this Commission.

            Dumaguete City, August 18, 2023.

__________________________

Affiant/Complainant -Appellant

         SUBSCRIBED AND SWORN TO BEFORE ME in ___________ on _____________________, affiant showing his competent proof of identity as follows: _________________No. _________________.

 Doc. No.

Page No.

Book No.

Series of 2023.

 

Copy Furnished:

Atty. xxxxxxx

Counsel for Respondent-Appellee

X x x x 

EXPLANATION

            A copy of this pledging is served on the adverse counsel via registered mail instead of via personal service due to the urgency of filing the same and due to the distance of the law office address of the adverse counsel.

AFFIDAVIT OF SERVICE

            I, ______________________________, of legal age, married, Filipino, and with postal address at ____________, under oath, depose: 

That I am the Complainant-Appellant in the foregoing Memorandum of Appeal;

That on ___________________ I served a copy of the foregoing Memorandum on Appeal on the adverse counsel in the instant case via registered mail with return card, to wit:

Atty. xxxxxxxx

Counsel for Appellee- Respondent

 

                        Reg. Rec. No. ______________________

                        Date____________          PO ____________

           

That the original of the aforementioned registry receipt is attached above, opposite the names of the adverse counsel to prove the foregoing statement.

That I am executing this affidavit of service as per Rule VI (Appeals) of the NLRC Rules of Procedure to prove the fact of service of a copy of the foregoing Memorandum on Appeal on the aforementioned adverse counsel.

            Dumaguete City, August ____, 2023.

                                                 ________________________

Complainant-Appellant

            SUBSCRIBED AND SWORN TO BEFORE ME in ___________ on _____________________, affiant showing his competent proof of identity as follows: LTO Driver’s License No. __________________________.                                                                                             

Doc. No.

Page No.

Book No.

Series of 2023

 

 

 

"Title Transfer and Request Procedures for Buyers, Beneficiaries, Donors, and Heirs"

First Step: BIR 

Submit the Deed of Absolute Sale/ Deed of Donation/ Extrajudicial Settlement of Estate/ Waiver of Rights or other Deed of Conveyances to the BIR for assessment. 

Pay for the Capital Gains Tax and Documentary Stamp Tax at the Bank. 

Capital Gains Tax/ Donor Tax is 6% and Documentary Stamp Tax is 1.5% of the Selling price/ Fair Market Value / Zonal Valuation of the Land. (Rule is which ever is higher.)

Documents to submitted to the BIR:

A. Deed of Absolute Sale/ Deed of Donation/ Extrajudicial Settlement of Estate/ Waiver of Rights/ Other Deed of Conveyances

B. Acknowledgment Receipt (no need for EJS, Deed of Donation and Waiver of Rights

C. Certified true copy of the title

D. Tax Declaration for the land and if there is improvement Tax Declaration for Building.

E. Certificate of No Improvement or Certificate of  Improvement

F. Vicinity Map

G. Special Power of Attorney (SPA) if you authorized someone to process the titling.

H
.  TINs of the Buyer and Sellers (Parties) or IDS

Be sure to have the Tax Identification Number of the buyer and seller or parties in the Deed.

Then wait for at least 1 month for the BIR to release the electronic Certificate Authorizing Registration (ECar). 

Second Step: DAR

Check whether the land is classified as agricultural or residential.

If it is agricultural, you have to secure DAR Clearance from DAR.

Requirements are the following:

A. Deed of Absolute Sale

B. SPA

C. Certified true copy of the title.

D. Certificate total land holding from the city or municipality and another certificate of total land holdings where the property is located.

E. MARPO clearance

F. Affidavit of Transferor and transferee

Once the DAR Clearance is release proceed to Register if Deeds.

Third Step: ROD

In ROD the requirements are: 

1. Receipt of the Payment of Transfer tax

(Pay the transfer tax at the  Treasurer’s Office of the city or municipality where the property is located.

Rate is not more than fifty percent (50%) of the one percent (1%) of the total consideration. 

2. Original title

3. Petition for the issuance of title.

4. Deed of Partition (if lot bought or inherited or received is only a portion of the entire property.)

4. ECar

5. DAR Clearance (for agricultural land)

6. Petition for the removal of annotation

Then pay for the printing of the title.

Wait for at least 1-3 months for your title to be released. Good luck.

If you have questions, please consult a lawyer.

by: Atty. Sadjail