Republic of the Philippines

COURT OF APPEALS
Cagayan de Oro City
____________ Division

RICHARD A. DAGOT,
Petitioner,
-versus-
NATIONAL LABOR RELATIONS
COMMISSION (EIGHT DIVISION)
AND DAVAO SECURITY &
INVESTIGATION AGENCY INC.,
GLENN Y. ESCANDOR AND
JHONEL D. CELADES
Respondents.

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COMMENT/ OPPOSITION
(TO PETITION FOR CERTIORARI)

COMES NOW, Respondent DAVAO SECURITY AND

INVESTIGATION AGENCY, INC. (DASIA for brevity), AND
GLENN Y. ESCANDOR, as President through the undersigned
authorized representative, unto this Honorable Court, most
respectfully aver:

TIMELINESS OF THE COMMENT

1. Last May 10, 2017, Respondent DASIA through its Legal

Department received a copy of Petitioner Richard A.
Dagot’s (Petitioner Dagot for brevity) Petition for
Certiorari dated May 2, 2017 assailing the Decision and
Resolution of the National Labor Relations Commission
(NLRC for brevity) issued on October 27, 2016 and
February 22, 2017, respectively;

2. The Comment to the Petition for Certiorari is due to the

Court of Appeals, 10 days later, on May 20, 2017. Such
date falls on a Saturday;

3. Rule 22, Section 1 of the Rules of Court provides that:

“In computing any period of time

prescribed or allowed by these Rules, or
by order of the court, or by any applicable
statute, the day of the act or event from
which the designated period of time
begins to run is to be excluded and the
 date of performance included. If the last
day of the period, as thus computed, falls
on a Saturday a Sunday, or a legal holiday
in the place where the court sits, the time
shall not run until the next working day.” 

4. Since the last day of doing such act falls on a Saturday, the
time shall not run until the next working day. Therefore,
the date of filing shall be due on Monday, 22 nd of May
2017;

5. In view thereof, Respondent DASIA submits its

comment/opposition to the Petition for Certiorari dated
May 2, 2017 filed by Petitioner Dagot;

PARTIES
6. Petitioner DAGOT was hired as a security guard by
Respondent DASIA. He is represented by ATTY.
JULIFAITH C. CAPUYAN-ABEJERO who holds office at 2nd
Floor, Philja Bldg., Calibo St., Central Dipolog City, where
it may be served with notices and orders of this Honorable
Court;

7. Respondent DASIA, duly represented by its authorized

representative RACHEL MERNIL MARATAS - BACERA, is
a domestic corporation duly organized under Philippine
Laws with principal place of business at Escandor Building
corner Juan Luna and Damaso Suazo Streets, Davao City.
Where processes of this Honorable Court may be served.
Attached is a copy of the Secretary’s Certificate pertaining
thereto as Annex “1”

GROUNDS FOR
COMMENT/OPPOSITION
8. After perusal to Petitioner Dagot’s Petition for Certiorari,
Respondent DASIA respectfully submits that the said
petition is bereft of merit;

9. With all due respect, Respondent DASIA does not find any
cogent reason for this Honorable Court to reverse or find
error in the Resolution dated February 22, 2017 denying
the Petitioner’s Motion for Reconsideration on the Decision
of the NLRC dated October 27, 2016 for lack of merit. A
copy of the Decision and Resolution of the NLRC is herein
attached as Annex “B” and “C” respectively;

10. The Petition for Certiorari filed by Petitioner Dagot is only

a mere rehash of what has been raised in his Memorandum
 of Appeal dated August 1, 2016 and Motion for
Reconsideration dated November 21, 2016.

11. In support thereof, Respondent DASIA respectfully makes

the following submissions:

COMMENTS ON THE ASSIGNMENT OF

ERRORS
1
THERE IS NO SHOWING OF ANY REVERSIBLE
ERROR IN THE RESOLUTION OF THE NATIONAL
LABOR RELATIONS COMMISSION IN FINDING
THAT PETITIONER WAS NOT CONSTRUCTIVELY
DISMISSED

2
THERE IS NO SHOWING OF ANY REVERSIBLE
ERROR IN THE RESOLUTION OF THE NATIONAL
LABOR RELATIONS COMMISSION IN FINDING
THAT THE TRANSFER OF ASSIGNMENT ON
ACCOUNT OF PETITIONER’S REQUEST DUE TO
AILMENT THEREBY ALLOWING HIM TO WORK FOR
A REDUCED NUMBER OF WORKING DAYS WAS AN
ACT OF GOOD FAITH

3
THERE IS NO SHOWING OF ANY REVERSIBLE
ERROR IN THE RESOLUTION OF THE NATIONAL
LABOR RELATIONS COMMISSION IN FINDING
THAT THERE IS NOTHING WRONG IN THE
REDUCTION OF PETITIONER’S BIMONTHLY WORK
IN VIEW OF HIS AILMENT OF OSTEOARTHRITIS
AND THAT DIMINUTION OF SALARY AND
BENEFITS WAS LAWFUL
4
THERE IS NO SHOWING OF ANY REVERSIBLE
ERROR IN THE RESOLUTION OF THE NATIONAL
LABOR RELATIONS COMMISSION IN FINDING
THAT PETITIONER IS NOT ENTITLED TO
SEPARATION PAY, SERVICE INCENTIVE LEAVE
PAY, VACATION/SICK LEAVE PAY, 13TH MONTH
PAY AND DAMAGES

DISCUSSION

I. THERE WAS NO CONSTRUTIVE

ILLEGAL DISMISSAL
 12. Petitioner must be reminded that he judicially admitted
that it is he who expressed his desire to be transferred
to another post due to his osteoarthritis (Decision, p.4);

13. In a plethora of cases, constructive dismissal has been

defined as a cessation of work because continued
employment is rendered impossible, unreasonable or
unlikely; when there is a demotion in rank or diminution
in pay or both; or when a clear discrimination,
insensibility, or disdain by an employer becomes
unbearable to the employee.

14. The test of constructive dismissal is whether a

reasonable person in the employee’s position would have
felt compelled to give up his position under the
circumstances.

15. Based on the factual consideration in the instant case,

the reduction of petitioner’s working hours which
resulted to reduction of his income has been
contemplated by Petitioner Dagot as constructive
dismissal. It must be noted that the reduction of working
hours of Petitioner Dagot was the result of his request to
be transferred on another post for the reason that he is
suffering osteoarthritis, a painful medical condition that
affects his performance as security guard.

16. Section 5 of Republic Act No. 5487 explicitly provides

that a as security guard naturally requires physical and
mental fitness. Thus, respondent’s act of reducing the
petitioner’s working hours is a valid management
prerogative. This is further justified in view of his letter
– request for transfer opining that he was "no longer
physically fit to perform his duties and responsibilities as
a security guard because of his health condition.

II. THE TRANSFER OF ASSIGNMENT ON

ACCOUNT OF PETITIONER’S REQUEST DUE
TO AILMENT THEREBY ALLOWING HIM TO
WORK IN A REDUCED NUMBER OF WORKING
HOURS WAS AN ACT OF GOOD FAITH

17. We DENY that the National Labor Relations Commission

committed grave abuse of discretion in holding that the
transfer of assignment on account of petitioner’s request
due to ailment thereby allowing him to work for a
reduced number of working days as an act of good faith
of private respondent, in total disregard of non-
diminution of pay rule.

18. To reiterate the Commission’s ruling:

 “The act of respondent-appellee in giving
complainant-appellant the opportunity to
continue working at its office with a reduced
income is perceived by this Commission as an
act of good faith on its part rather than an act
motivated by discrimination or bad faith which
rendered impossible complainant-appellant’s
continued employment with respondent-
appellee.”1

19. It is worthy to note that the act of Respondent DASIA, by

letting Petitioner Dagot continue his work as security
guard at its office, is an act of compassion so that
Petitioner Dagot could still continue to receive any pay
during the period rather than placing Petitioner Dagot on
“off-detail” or under “floating status”;

20. Again, Respondent DASIA ought to remind Petitioner

Dagot that the proximate cause of his transfer and
reduction of his working hours was his desire to be
transferred to another post because of his painful
medical condition. Hence, the transfer of assignment of
Petitioner Dagot was merely an accommodation account
of petitioner’s request due to his ailment.

III. THERE IS NOTHING WRONG IN THE

REDUCTION OF PETITIONER’S
BIMONTHLY WORK

21. The opportunity to continue working with a reduced

work in view of his physical condition is an act of good
faith on the part of Respondent DASIA and not motivated
by discrimination or bad faith.

22. Respondent DASIA should not be faulted by its act of

grace when it allowed Petitioner Dagot to work in a
reduced working hours when respondent DASIA had all
the reason to place petitioner on temporary “off-detail”
or under “floating status” for a period not exceeding six
(6) months where he will not be compensated for
services not rendered. Notwithstanding the Petitioner’s
health condition, Respondent DASIA still opted to allow
him to work.

23. The reduction of working hour which resulted to a

reduced income was a result of his act of requesting a
transfer to another post due to his painful medical
condition. Hence, there is nothing wrong in the reduction
of Petitioner’s Bimonthly work from fifteen (15) days to
only to ten (10) days.
1
DECISION (October 27, 2016), p. 5.
IV. COMPLAINANT – APPELLANT IS
NOT
ENTITLED TO SEPARATION PAY,
SERVICE INCENTIVE LEAVE PAY,
VACATION/SICK LEAVE PAY, 13TH
MONTH PAY AND DAMAGES

24. Liability for the payment of separation pay is a legal

consequence of illegal dismissal where reinstatement is no
longer viable or feasible. Under Article 279 of the Labor
Code, an illegally dismissed employee is entitled to the
twin reliefs of full backwages and reinstatement without
loss of seniority rights. Aside from the instances provided
under Articles 283 and 284 of the Labor Code, separation
pay is, however, granted when reinstatement is no longer
feasible because of strained relations between the
employer and the employee;

25. Applying Article 279 of the Labor Code, it can be inferred

that separation pay is a logical consequence of illegal
dismissal. Hence, the award of separation pay must fail as
there was no dismissal to speak of in this case;

26. As to the claim of service incentive leave, and 13 th month

pay, Respondent DASIA maintained that it has been
religiously paying service incentive leave and 13 th month
pay as evidenced by payroll records;

27. The employee is entitled to moral damages when the

employer acted a) in bad faith or fraud; b) in a manner
oppressive to labor; or c) in a manner contrary to morals,
good customs, or public policy. Bad faith "implies a
conscious and intentional design to do a wrongful act for a
dishonest purpose or moral obliquity. In Cathay Pacific
Airways v. Spouses Vazquez, it is established that bad faith
must be proven through clear and convincing evidence. This
is because "bad faith and fraud . . . are serious accusations
that can be so conveniently and casually invoked, and that
is why they are never presumed. They amount to mere
slogans or mudslinging unless convincingly substantiated by
whoever is alleging them.2 Petitioner Dagot was not legally
or illegally dismissed. He terminated his own employment
by not reporting anymore for work hence, the award of
moral damages is not warranted in this case;

28. Exemplary damages may be awarded if the dismissal is

effected in a wanton, oppressive or malevolent manner.
The award of exemplary damages cannot be justified upon
2
NANCY S. MONTINOLA, vs. PHILIPPINE AIRLINES, G.R. No. 198656               September 8,
2014
 the premise that the petitioner Dagot has not been
dismissed by Respondent DASIA;

29. The award of attorney’s fees must also fail. Attorney’s fees
are only given if the litigants were forced to go to court
because of the unjust refusal of the other party to give their
claims. In the case at bar, there was no indication that
Respondent unjustly refused to give his claim.

PRAYER

WHEREFORE, in the light of the foregoing premises,

it is respectfully prayed unto this Honorable Office to
SUSTAIN the decision of the National Labor Relations
Commission for the reason that it is correct, not tainted
with serious errors and palpable mistake and not rendered
with grave abuse of discretion amounting to lack or in
excess of jurisdiction.

Respondents pray for such other reliefs which may

be just and equitable under the premises.

May 20, 2017, Davao City, Philippines.

RACHEL MERNIL O. MARATAS-BACERA

Authorized Representative
For Respondent DASIA

COPY FURNISHED:
ATTY. JULIFAITH C. CAPUYAN-ABEJERO RR No. _____________
Counsel for Complainant Date: ________________
Capuyan Law Office
2nd Flr., PHILJA Bldg. Calibo St.
Dipolog City

EXPLANATION

Filing and Service was made through registered mail with

return card due to distance and lack of personnel to effect
personal service.
RACHEL MERNIL MARATAS-BACERA