Republic of the Philippines Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch No. XV Trece Martires St., Gotham City CHRISTINE M. AGOO, Complainant-Appellee, -versusNLRC, RAB XV CASE NO. 1-009-06

GOTHAM I ELECTRIC COOPERATIVE, INC. (GOTELCO I)/JIM LEO A. ACHESTA, Respondent-Appellant. x ------------------------------------------------------------ x NOTICE OF APPEAL COMES NOW respondent-appellant, by the undersigned counsel, unto this Honorable Regional Arbitration Branch most respectfully files this Notice of Appeal together with the Memorandum of Appeal of its Decision dated September 29, 2006 rendered in the above-entitled case and received by respondent-appellant on October 5, 2006 and appeals the same being contrary to law, evidence and applicable jurisprudence. Tacloban City, October 16, 2006.

ATTY. JOHN DOE Counsel for respondent-appellant #123 Gotham City

Copy furnished by personal service: Atty. Jane Deer Counsel for complainant-appellee #234 Gotham City

Republic of the Philippines Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION

Fourth Division, Cebu city CHRISTINE M. AGOO, Complainant-Appellee, -versusNLRC, RAB XV CASE NO. 1-009-06

GOTHAM I ELECTRIC COOPERATIVE, INC. (GOTELCO I)/JIM LEO A. ACHESTA, Respondent-Appellant. x ------------------------------------------------------------ x

MEMORANDUM OF APPEAL

COMES NOW respondent-appellant, by the undersigned counsel, unto this Honorable Commission, most respectfully avers:

PREFATORY This is an appeal of the decision rendered by the Regional Arbitration Branch No. XV (RAB-XV for brevity) dated September 29, 2006 and received by herein respondentappellant on October 5, 2006 which was rendered in favor of herein complainant-appellee and against respondent-appellant despite and because of the following errors:

ASSIGNMENT OF ERRORS

1. THAT THE HONORABLE RAB-XV ERRED IN HOLDING THAT COMPLAINANT-APPELLEE IS ENTITLED TO REINSTATEMENT

2. THAT THE HONORABLE RAB-XV ERRED IN HOLDING THAT COMPLAINANT-APPELLEE IS ENTITLED TO PAYMENT OF MORAL AND EXEMPLARY DAMAGES

ARGUMENTS

FIRST ERROR:

THAT THE HONORABLE RAB-XV ERRED IN HOLDING THAT COMPLAINANT-APPELLEE IS ENTITLED TO REINSTATEMENT

Assuming that complainant-appellee was constructively dismissed, the Honorable RAB-XV erred in holding that complainant-appellee is entitled to reinstatement. The Honorable RAB-XV did not take into account the circumstances obtaining in the case which makes reinstatement no longer a proper remedy. Under prevailing jurisprudence, antagonism makes reinstatement no longer viable as a remedy in illegal dismissal cases.

In Samuel Samarca vs. Arc-Men Industries, Inc. [G.R. No. 146118. October 8, 2003], involving a complaint for illegal suspension which was later on amended to illegal dismissal filed by a machine operator, the Supreme Court held that: In sum, we find that petitioner did not abandon his job but was illegally dismissed by respondent. xxx However, the circumstances obtaining in this case do not warrant the reinstatement of petitioner. Antagonism caused a severe strain in the relationship between him and the respondent. A more

4 equitable disposition would be an award of separation pay equivalent to one (1) months pay for every year of service. (emphasis and underscoring supplied).

With all due respect to the Honorable RAB-XV, the antagonism between herein respondent-appellant and complainant-appellee is quite manifest in this case. The filing of various cases including among others the criminal case for violation of SSS Law filed against respondent-appellant (annex 2 of respondents position paper) and the criminal case for perjury filed against complainant-appelle (annex 5 in respondents position paper) as well as other imputations of bad faith against each other has severely strained the relationship between both parties in this case. Reinstatement of herein complainantappellee would not serve any prudent purpose as there will likely be an atmosphere of antipathy and antagonism that would not create a good working environment in the workplace. A testament to this is the impression she has made among the personnel in the office as may be inferred in the affidavit executed by CHARLENE C. LINGA and DIVINA C. BALUTE both of whom are employees of GOTELCO I, to wit: That the personal character of MS. CHRISTINE M. AGOO shows of her hasty attitude of filing the criminal complaint against the General Manager of GOTELCO I which appears to be unnecessary, probably banking on her being a law student and abusing her knowledge of law, which will not promote good and harmonious relationship among personnel of the same office, and such action of filing a complaint against the management is uncalled for, considering that we are bound and have our common sworn duties and responsibilities to serve well the general public. (Annex 3 in respondents position paper).

SECOND ERROR:

THAT THE HONORABLE RAB-XV ERRED IN HOLDING THAT COMPLAINANT-APPELLEE IS ENTITLED TO PAYMENT OF MORAL AND EXEMPLARY DAMAGES

It is a settled rule that moral damages are recoverable in dismissal cases 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 while exemplary damages in dismissal cases may be awarded only if the dismissal was affected in a wanton, oppressive or malevolent manner. A dismissal may be contrary to law, but by itself alone, it does not necessarily establish bad faith. [Colegio De San Juan de Letran-Calamba vs. Villas. G.R. No. 137795, March 26, 2003)].

The person claiming moral damages must prove the existence of bad faith by clear and convincing evidence for the law always presumes good faith. [PAL vs. NLRC, et. Al. G.R. No. 132605, February 2, 1999].

The termination of employment of herein complainant-appellee was never attended with bad faith on the part of the respondent-appellant. The suspension meted out on her was on based on the honest belief that she was intentionally withholding her SSS number from management despite the fact that it had earlier been asked of her so as to include her in the SSS report of remittance. Such fact alone negates the existence of bad faith. Respondent-appellant was only reacting to what it supposed was a deliberate intention by complainant-appellee to ensure the criminal prosecution of the former for violation of the SSS Law.

6 PRAYER/RELIEF

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Commission that the decision of the NLRC RAB XV in the above-captioned case be set aside and a new one rendered (1) ordering separation pay in lieu of reinstatement due to the animosity between the parties; and (2) absolving the respondentappellee from payment of moral and exemplary damages. Other reliefs just and equitable are likewise prayed for. Tacloban City for Cebu City, October 16, 2006.

ATTY. JOHN DOE Counsel for respondent-appellant #123 Gotham City

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