Republic of the PhilippinesDepartment of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION National Capital Region

Quezon City

SECOND DIVISION

ARMANDO SAPITULA SORIANO, et. al.,

Complainants,

-versus- NLRC CA NO. 12-003009-14(4)NLRC NCR CASE NO. NCR-06-

07262-14

HONEYBARN MKTG. / BRAND & LIFESTYLE / SYNERGY SOURCING / 1) DEXTER DY 2) PETER HUANG 3) JENZEL ORALLO,

Respondents.x-------------------------------x

MOTION FOR RECONSIDERATION

Complainant, Armando S. Soriano, John Harris A.

Nuñez, Ernesto T. Bendillo, Anthony D. Arquero and

Deniis R. Laroza. through the undersigned Public

Attorney, and unto this Honorable Commission, most

respectfully moves for the reconsideration of its Decision

promulgated on March 31, 2015, copy of which was

received by the Complainant-Appellants on April 16, 215,

the dispositive portion of which provides:

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“WHEREFORE, premises considered, the instant Motion for Reconsideration is GRANTED. Our assailed January 22, 2015 Decision is SET ASIDE. The October 24, 2014 Labor Arbiter’s Decision is MODIFIED in that the award for salary differentials are re-computed as follows:

1. Anthony ArquerroP466.00/ 8 hours = 58.25P58.25 – 35.00.00 = 23.25 x 45 hours =

1,046.252. Ernesto Bendillo

P 58.25 – 31.25 = 27.00 x 56 hours = 1,512.00

3. Dennis LanozaP 58.25 – 38.50 = 19.75 x 39 hours = 770.25

4. John Harris NunezP 58.25 – 35.00 = 23.25 x 52 hours = 1,209.00

5. Armando SorianoP 58.25 – 35.000 = 23.25 x 49 hours = 1, 139.25

TOTAL =

P5,676.75

SO ORDERED.”

NATURE AND TIMELINESS OF THE MOTION FOR RECONSIDERATION

Complainants received the notice of Judgment/Decision

on April 16, 2015 which means that the last day to file an

appeal falls on April 27, 2015. The complainant is hereby

filing this present Motion for Reconsideration, within 10-

calendar days, provided under the rules.

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THE PARTIES

Complainant-Appellant in the instant case are all

Filipinos and all of legal age, and residents of:

1. Armando S. Soriano – 25 Dayap Street,

Western Bicutan, Taguig City, Metro Manila;

2. John Harris A. Nuñez – Zone 3, Lower Sta.

Ana, Barangay Sun Valley, Parañaque City,

Metro Manila;

3. Ernesto T. Bendillo – 25 Dayap Street,

Western Bicutan, Taguig City, Metro Manila;

4. Anthony D. Arquero - Zone 3, Lower Sta. Ana,

Barangay Sun Valley, Parañaque City, Metro

Manila;

5. Deniis R. Laroza – Bukid Area 4, Barangay

Sun Valley, Parañaque City, Metro Manila;

Where they may be served with notices, orders and

other processes of this Honorable Commission at their

residential addresses indicated above.

Respondent-Appellee Honey Barn Marketing is a

LOCAL RECRUITMENT AGENCY duly organized and

existing in accordance with Philippine laws located at Unit

5A Crown Tower 1134 Soler Street, Binondo, Manila. Its

officers and employees of respondent Honey Barn

Marketing, Dexter Dy, Peter Huang and Jenzel Orallo,

which they may be served with writ and processes of the

Honorable Office at the above-stated address of respondent

Honey Barn Marketing.

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GROUNDS FOR THE

MOTION FOR RECONSIDERATION

WITH ALL DUE RESPECT, THE HONORABLE

COMMISSION GRAVELY ERRED DISREGARDING AND

MISAPPRECIATING THE FACT THAT RESPONDENTS

BELATEDLY SUBMITTED AN ADDITIONAL EVIDENCE

ON THEIR MOTION FOR RECONSIDERATION

DISCUSSIONS

As regards the first and only error, the

complainants most respectfully submit that the strict

application of the presentation of additional or new

evidence should have been applied. As can be gleaned from

the March 31, 2015 Decision, even the Honorable

Commission agrees, as seen in the body of such decision:

“The proper time for submission of evidence is before the Labor Arbiter. Likewise, the appropriate time for questioning the authenticity of the opponent’s evidence should be made at the very first opportunity given to a party. That is, from the time of receipt contained in their Reply, still before the Labor Arbiter. Bur respondents kept silent about it until the Labor Arbiter rendered her assailed decision. “

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“Moreover, we cannot be more emphatic that the liberal policy in labor cases should still be subject to rules of reason and fair play. The liberality of procedural rules is qualified by two

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requirements: (1) a party should adequately explain and delay in the submission of evidence; and (2) a party should sufficiently prove the allegations sought to be proven. The reason for these requirements is that the liberal application of the rules before the quasi-judicial agencies cannot be used to perpetuate injustice and hamper the just resolution of the case. Neither is the rule on liberal construction a license to disregard the rules of procedure. In this case, respondents failed to meet the said requirements.

A careful reading of the body of the March 31, 2015

Decision, the Honorable Commission patently disregarded

the fact that the respondents belatedly presented evidence

to support their claim.

As a general rule, the submission of new or additional

evidence is not entirely prohibited by the rules. However, in

the instant case, the submission of new or additional

evidence on appeal must be given strict application.

Indeed, as a general rule, the submission of

additional evidence before the NLRC on appeal is

not prohibited by the 2005 Revised Rules of

Procedure of the NLRC. The NLRC may consider

evidence such as documents and affidavits

submitted therewith by the parties for the first

time on appeal. The submission of additional

evidence on appeal does not prejudice the other

party for the latter may still submit counter-

evidence1.

1 NFD International Manning Agents vs. NLRC, G.R. No. 11629

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However, as an exception to such rule, the

submission of new or additional evidence on appeal is given

strict applications. If all the while, however, the proof was

presented for the first time on appeal was in the company’s

possession and it offered no val.id excuse for its non-

submission to the Labor Arbiter, the same could no longer

be presented for the first time on appeal with the NLRC.2

As held in a number of cases:

In Spouses Santos v. NLRC, G.R. No. 120944. July 23, 1998. The Supreme Court did not allow its admission for the first time on appeal with the NLRC because all the while, this proof was in the company’s possession and it offered no excuse for tis non-submission to the Labor Arbiter. Due process cannot be accorded to a negligent litigant if it will result in injustice to the other litigant who has been diligent in observing the rules of litigation. It is true that, in some cases, the power of the NLRC to admit additional evidence on appeal has been upheld, but in those cases, the failure to submit the evidence was justified.

In Angeles vs. Fernandez. G.R. No. 160213. January 3, 2007. It held that: Delay in the submission of evidence should be clearly explained and should adequately prove the employer’s allegation of the cause for termination. Thus, petitioner did not explain her belated submission of the affidavits of her witnesses on appeal with the NLRC. Consequently, her pleat that the affidavits be admitted in the interest of truth, justice and fair play was declared as lacking in merit.

In Filipinas [Pre-fabricated Bldg.] Systems, ‘Filsystems’ Inc. v. NLRC G.R. No.

2Chan. Labor Code of the Philippines. Page 291

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15359, where the company never presented any contrary evidence while the case was pending with the Labor Arbiter, the Supreme Court did not countenance the late submission of evidence by the company for the first time on appeal with the NLRC. It said that it should have adduced its evidence on the issue of illegal dismissal before the Labor Arbiter. It, however, failed to do so despite the opportunities given by the Labor Arbiter. It was only when an adverse when an adverse decision was rendered against it by the Labor Arbiter that it offered to submit its evidence before the NLRC refuting the employees’ complaint of illegal dismissal. Such a practice cannot be tolerated for it will defeat the speedy administration of justice involving poor workers. Moreover, it smacks of unfairness.

For the sake of argument. Granting, without admitting

that such pieces of evidence forms integral part of the

instant case, the respondent still fails to present

competent and admissible evidence. As found in the

Rules on Evidence, Rule 128, Section 3 provides:

Admissibility of evidence – Evidence admissible when it is

relevant to the issue and is not exclude by the law or these

rules. 3

Following such provision, the law specifically

mentions requirements for an evidence to be admissible.

Hence, as provided for in the Labor Code, the evidence

offered by the respondent should be held inadmissible as

being excluded by the law. In the instant case, Filing

beyond the reglementary period and only after the decision

given by the Labor Arbiter will render such evidence as

excluded by law. Moving now on the admissibility of the

pieces of evidence presented by the respondents, It is

3 Rules of Court. Rule 12, Section 3.

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incredulous that the Honorable Commission actually

stated:

Xxx

“Further, even if we admit these payrolls in

the interest of justice, still the same do not

deserve weight and credence. The alleged

genuine payrolls in themselves are dubious as

they do not contain a column for and the actual

employee’s signature. The very essence of a

payroll is the employee’s signature as an

acknowledgment of the employees actual receipt

of the amount stated therein, and not the

signature of the person who prepared and

checked it. Absent employee’s signature, the

payroll is self-serving.

XXX

Moreover, if doubts exist between the evidence

presented by the employer and the employee, the scales of

justice must be tilted in favor of the employee. Since it is a

time honored rule that in controversies between a laborer

and his master, doubts reasonably arising from evidence, or

in the interpretation of agreements and writings should be

resolved in the former’s favor.4

Indispensable is the issue on onus probandi. As

provided, he who alleges must prove the same. In the

instant situation, the respondents have not adduced

evidence of great weight to prove their theory and

allegations. As the respondents were the ones who actually

4 Parangan vs. NLRC, et.al., 289 SCRA 142

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questioned the basis for the computation of salary

differential they must be the one to prove the same. As the

employer respondent has all the records and documents

related to the case, it is not the duty of the complainant to

produce the said pieces of evidence. It is also their duty to

produce such competent evidence.

In cases involving monetary claims, it is well-

entrenched that the burden of proving thereof rests on the

employer. 5

The positive testimony of a creditor may be sufficient

of itself to show non-payment, even when met by indefinite

testimony of the debtor. Similarly, the testimony of the

debtor may also be sufficient to show payment but where

such testimony is contradicted by the other party or by a

disinterested witness, the issue may be determined against

the debtor since he has the burden of proof. The testimony

of the debtor creating merely an inference of payment will

not be regarded as conclusive on that issue. Hence, for

failure to present evidence to prove payment, petitioners

defaulted in their defense and in effect admitted the

allegations of private respondents. 6

The reason for the rule, is that the pertinent personnel

files, payrolls, records, remittances and other similar

documents – which will show that overtime, differentials,

service incentive leave and other claims of workers have

been paid – are not in the possession of the worker but in

the custody and absolute control of the employer. 7

5 MC Engineering, Inc vs. NLRC. G.R. No. 1423146 G and M Inc. vs. Cruz. G.R. No. 1404957 Saberola vs. Suarez. G.R. No. 151227

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The complainants must not be faulted on the non-

submission of duly authenticated payrolls. The complainants

must not be made to suffer on such defect as such was not

in the first place their duty to prove or disprove. As seen,

the complainants had exerted all their diligent effort to

provide for a pay roll to prove the salary differential due

them. Hence, it is now the responsibility of the respondents

to provide payrolls duly signed by them and the

complainants to prove all their claims.

Also, It can be read in the Decision, that the Honorable

Commission rendered a decision, to wit:

xxx

Moreover, respondents did not question the authenticity of the payrolls outright in their Reply. Rather, it was only raised on appeal. Such is a mere afterthought which deserves no consideration.

Non-production of the pertinent records by the company raises doubt considering that it was in total exclusive control of such records. Unfavorable presumption that such records if produced would be adverse to company, applies.

Xxx

The body of the decision seemed to lean towards the

non-appreciation of belatedly produced evidence. However,

reading further would divulge that which seems to be

purportedly reproduced to make believe and to make the

complainants be at the losing end. In the end, the

Honorable Commission still ruled that the computation of

the salary differential of the complainants should be

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modified. Such misplaced appreciation of the issues raised

by the respondent through their Motion for computation

appears not to be supported by pieces of evidence on the

basis for the computation.

PRAYER

WHEREFORE, premises considered, it is most

respectfully prayed unto this Honourable Second Division

that the Decision rendered by the Second Division dated

March 31, 2015 which granted the Motion for

Reconsideration of the respondents, be reconsidered and

reversed, and the Decision dated 22 January 2015 issued by

the Honorable Commission affirming the 24 October 2014

Decision of the Honorable Labor Arbiter be reinstated.

Other reliefs just and equitable under the premises are

likewise most respectfully prayed for.

Manila for Quezon City, April 23, 2015

Assisted by:

Department of JusticePUBLIC ATTORNEY’S OFFICE

Manila District Office4th Floor W. Godino Bldg.

350 Arroceros StreetErmita, Manila

By:

ATTY. MARTIN IŇIGO C. ORTIZPublic Attorney II

Roll of Attorneys No. 59443MCLE Compliance No. V-0006254

IBP no.: 957909

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Office Tel. No.: (02) 523-2030

EXPLANATION(Pursuant to Section 11, Rule 13 of the Rules of Court)

Service of this Motion for Reconsideration was made on Respondents via registered mail instead of personal, due to distance, time and manpower constraints.

MARTIN IŇIGO C. ORTIZ

Copy furnished:

ATTY. CESAR B. TUOZOCounsel for the RespondentUnit J, 6th Floor, El Dorado, Tower 2California Garden Square, Libertad StreetMandaluyong City, Metro Manila

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