REPUBLIC OF THE PHILIPPINES

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
NATIONAL CAPITAL REGION
Quezon City

SHIRLEY OJENAR,
Complainant,

- versus - NLRC-NCR Case No. 00-03-02467-98

YOSHITA CORPORATION and

AIDA SIMTOCO,
Respondent.
x-------- -------------x

MEMORANDUM OF APPEAL

Respondents Yoshita Corporation and Aida Simtoco, by counsel, respectfully

interpose this appeal from the Decision of the Honorable Labor Arbiter Felipe P. Pati of

the National Labor Relations Commission (NLRC), National Capital Region in the

above-entitled case dated 10 March 1999, a copy of which was received by Respondents

on 26 May 1999, and respectfully state:

NATURE OF THE CASE

This case involves a complaint for illegal dismissal filed by the complainant

against the respondents, praying for reinstatement to her former position without loss of

seniority rights and recovery of backwages, wage differentials, 13th month pay,

overtime work pay, service incentive leave pay, moral, exemplary and actual damages

and attorney's fees.

 STATEMENT OF THE FACTS

1. Respondent, Yoshita Corporation (the "Company") is a duly organized

domestic corporation engaged in the business of manufacturing and assembling

electronic components. It was incorporated on 4 March 1994 as evidenced by its

Certificate of Registration issued by the Securities and Exchange Commission, a copy of

which is attached as Annex "A" of Respondent's Position Paper.

2. Respondent, Aida Simtoco, ("Mrs. Simtoco") is the Executive Vice

President and Manager of the Company.

3. Complainant, Shirley Ojenar was one of the piece-rate workers of the

Company. She was hired by YOSHITA on 29 August 1994.

4. As a piece-rate worker, complainant was assigned the following tasks with

their corresponding cost per piece and number of pieces that she should produce per

hour:

Task Cost per piece No. of pcs. per hour

U.V Inspection P 0.045 520

FPC Forming 0.050 480
Dowell 0.045 550

5. Complainant reported for work at irregular intervals. Contrary to what

complainant alleges in her complaint, she did not regularly work from 8:00 a.m. to 5:00

p.m., being a piece-rate worker.

 6. Like all piece-rate workers, complainant was made to fill up a Weekly

Production Report ("WPR") where she would write the days of the week she reported for

work and the span of time she did her work, the specific type of job finished and the

amount of work accomplished for the day as measured by the number of pieces of

electrical components she was able to assemble. Copies of her WPRs are attached to

Respondent's Position Paper as Annexes "B" to "S".

7. Barely two months after she started working for the Company,

complainant became habitually absent. In fact, as per records of the Company, for the

period January 1997 to February 1998 alone, complainant was absent for a total of one

hundred twenty-nine (129) days as follows: (For the year 1997) January 2-4, 17-18, 20;

February 14, 25-28; March 1, 7, 10, 15, 17, 28, 31; April 1, 3-4, 14, 21, 25, 30; May 2-

3, 5, 12-17, 21-24, 26-31; June 2, 12-14, 19, 25, 30; July 1, 5, 9, 14, 18, 21-24, 28-31;

August 4-6, 8, 19-20, 26-30; September 8, 10-11, 15-19, 22-27; October 23, November

10, 17, 24-29, December 1, 12, 22-27, 29; (For the year 1998) January 2-3, 20-24, 31;

February 2-7, 9-14, 16, 23, 26-28.

8. Moreover, there were several occasions when complainant's supervisor

would complain about her inefficiency in performing tasks and her attitude towards

superiors.

9. On 10 March 1998, Mrs. Simtoco wrote complainant a memorandum in

respect of the complaints brought to her attention by complainant's supervisor, Gauden

Catampangan. It was reported that complainant engaged in a heated exchange of words

with her supervisor prompting the latter to request for her transfer to another production

room under a different supervisor. A copy of the said memorandum is attached to

Respondent's Position Paper as Annex "T".

 10. On the same day, complainant informed Mrs. Simtoco that she would be

taking a leave of absence for one week. However, after the lapse of one week,

complainant failed and refused to report back to work prompting Mrs. Simtoco to write

her another memorandum dated 17 March 1998 (see Annex "U" of Respondent's Position

Paper) informing her that having failed to file a leave of absence, her continued refusal to

report back for work would be considered as absence without leave.

11. Unknown to respondents, the complainant filed the instant case for illegal

dismissal with the NLRC, National Capital Region which was assigned to and heard by

Labor Arbiter Felipe P. Pati.

12. Respondents were therefore surprised to receive sometime during the last

week of March 1998, a copy of the Summons issued by this Honorable Office regarding

a case filed by complainant against them for illegal dismissal with prayer for

reinstatement, among others.

13. In the hearing held on 20 May 1998, respondents manifested that

complainant suddenly stopped reporting for work and even asked complainant to return

to work as she was never dismissed to begin with. Complainant replied that she was not

interested in reinstatement and merely wanted to collect her separation pay. (Decision,

p.4). After no settlement was reached, Labor Arbiter Felipe P. Pati ordered the parties to

file their respective position papers on 3 June 1998.

14. Pursuant thereto, both parties filed their respective position papers.

Thereafter, replies and rejoinders were likewise submitted.

15. On 4 November 1998, respondents filed a Motion for Trial on the Merits

enumerating a number of factual issues necessitating presentation of witnesses.

 16. On 3 December 1998, the Honorable Labor Arbiter Felipe P. Pati issued

an order denying the motion for trial on the merits and considering the case submitted for

decision.

17. Respondents then filed a Motion for Reconsideration of the aforesaid

Order of the Honorable Labor Arbiter on 14 January 1999 reiterating the significant

factual questions involved that cannot be decided on the basis simply of the pleadings.

18. Without ruling on respondents' motion, Labor Arbiter Pati rendered a

decision on 10 March 1999, finding the respondents guilty of constructive dismissal and

ordering them to reinstate complainant to her former position without loss of seniority

rights and to pay complainant P66,924.00 as backwages, P18,414.00 as service incentive

leave pay and unpaid 13th month pay, P60,306 as salary differentials and 10% of the

total award as attorney's fees. Hence, this appeal.

ASSIGNMENT OF ERRORS

I.

THE LABOR ARBITER GRAVELY ABUSED HIS

DISCRETION IN DENYING RESPONDENTS'
MOTION FOR TRIAL ON THE MERITS IN
VIEW OF THE DISPUTED MATERIAL AND
FACTUAL ISSUES IN THE PARTIES' RESPECTIVE
PLEADINGS.

II.

THE LABOR ARBITER ERRED IN RULING THAT

THE COMPLAINANT WAS CONSTRUCTIVELY
DISMISSED BY THE RESPONDENTS.

III.

THE LABOR ARBITER ERRED IN RULING THAT

COMPLAINANT IS ENTITLED TO
 REINSTATEMENT TO HER FORMER POSITION
WITHOUT LOSS OF SENIORITY RIGHTS, TO
P66,924.00 IN BACKWAGES, P18,414.00 IN
SERVICE INCENTIVE LEAVE PAY AND UNPAID
13TH MONTH PAY, P60,306 IN SALARY
DIFFERENTIALS AND 10% OF THE TOTAL
AWARD IN ATTORNEY'S FEES.

DISCUSSION

The Labor Arbiter gravely abused

his discretion in denying
respondents' Motion for Trial on
the Merits in view of the disputed
material and factual issues in the
parties' respective pleadings.

19. In his Order dated 3 December 1998, the Labor Arbiter ruled that there

was no necessity to set the case for trial on the merits as prayed for by the respondents in

their Motion dated 4 November 1998, as according to him the case could be resolved on

the basis of the pleadings submitted. This is a grievous error.

20. The Labor Arbiter failed to consider that there were substantial factual

issues involved which can not be resolved on the basis of the pleadings alone and

requires a trial on the merits. Foremost of these issues is the question of whether or not

the complainant was illegally dismissed by the respondent.

21. Complainant alleges in her position paper that she was summoned by

respondent Mrs. Simtoco to the latter's office on 10 March 1998. In said meeting, she

was allegedly told in an arrogant manner by Mrs. Simtoco that she was being dismissed

from work.

22. In her Reply to Complainant's Position Paper, respondent Mrs. Simtoco

completely denied these utterances attributed to her by the complainant. Said respondent
even prayed that she be given the opportunity to confront complainant to determine the

veracity of complainant's allegation as to the alleged uncalled for utterances.

23. While under the New Rules of Procedure of the NLRC, it is discretionary

upon the Labor Arbiter to set the case for a formal trial or hearing, such discretion must

be properly exercised. As held by the Supreme Court in Manila Electric Company vs.

NLRC [183 SCRA 51, 59 (1990)]:

"x x x although Section 3, Rule VII (now Section 4, Rule V) of the

Revised Rules of the National Labor Relations Commission gives the
labor arbiter the discretion to determine if a hearing is necessary under the
premises, this discretion must be exercised prudently. In the case at bar, it
appears that notwithstanding the manifestation of the private respondent
that he never got the chance to confront his accusers, the labor arbiter
went on to resolve the case on the basis of position papers. Thus, the
Commission correctly observed that the labor arbiter committed a grave
abuse of discretion in this particular instance. x x x"

24. As mentioned in the respondents' Motion for Trial on the Merits, the

pleadings raised significant factual and material issues which necessitate a hearing and

the presentation of evidence in order to arrive at a determination of the truth. As pointed

out in said motion as well as in respondent's motion for reconsideration some of these

issues are as follows:

24.1. Complainant claims that she was summarily dismissed

without justifiable reason by respondent Mrs. Simtoco (cf. par. 6,

complainant's Position Paper), while respondents maintain that she

abandoned her employment by not returning to work beginning 17 March

1998 (cf. par. 10, respondents' Position Paper, pars. 3-7, respondents'

Reply);
 24.2. Complainant alleges that she never received the

memoranda dated 10 March 1998 and 17 March 1998, respectively, (cf.

par. 6.1 complainant's Reply) which respondents said were sent to her

(pars. 2.1, 2.2. and 4, respondents' Reply).

24.3. Complainant claims that she did not go on leave beginning

11 March 1998, but was not able to report for work because she was

dismissed (cf. par. 9, complainant's Position Paper; par. 3, complainant's

Rejoinder), while respondents assert that she asked for permission to go

on leave verbally, went on leave without following Mrs. Simtoco's

instructions to present a written request for leave, and did not return to

work after the lapse of her one week leave (par. 10, respondents' Position

Paper; par. 3, respondents' Reply; pars. 11.1, 11.2, respondent's

Rejoinder).

24.4. Complainant alleges that she attempted to return to work

on 11 March 1998, but was barred from entering the company premises

by the security guard detailed at the gate (par. 9, complainant's Position

Paper; par. 3, complainant's Rejoinder). Respondents, on the other hand,

maintain that complainant could not have been barred from entering the

company premises, because she did not return to work on said date (par.

11, respondents' Reply).

24.5. Complainant denies having received offers from

respondent Company to return to work (par. 7, complainant's Reply).

Respondents assert that during the preliminary conferences, respondent

 Company's representative/s asked her to report for work, but she rejected

said offers (par. 12, respondents' Position Paper; par. 5, respondents'

Reply; par. 12.1, 12.2, 13 and 13.1, respondents' Rejoinder).

24.6. Respondents allege that complainant was habitually absent

from work (par. 7, respondents' Position Paper; par. 8, respondents'

Rejoinder), while complainant claims that said allegations are false (par.

4, complainant's Reply).

24.7. Complainant claims that respondent Company did not pay

her 13th month pay for the years 1994 to 1997 (par. 4, complainant's

Position Paper), while respondents assert that she received the same as

evidenced by the 13th month payslips bearing her signature (par. 23,

respondents' Position Paper; par. 22, respondents' Reply; par. 19,

respondents' Rejoinder). Complainant in turn asserts that she was forced

to sign said payslips even though she did not receive the amounts

corresponding thereto (par. 9 and 9.1 of complainant's Reply).

25. Certainly the foregoing issues can not be resolved on the basis of the

pleadings alone since the factual allegations of the complainant and respondents are in

direct conflict with each other. A trial whereby the parties are given an opportunity for

cross-examination is obviously necessary. As the Supreme Court puts it in Coca-Cola

Bottlers Philippines vs. NLRC (180 SCRA 195, 202 [1989]):

"x x x While, in certain cases, the affidavits of the witnesses may

suffice, there are cases where mere affidavits, being actually hearsay and
 untested by cross-examination, are not enough to satisfy the quantum of
proof required by law, especially where the statements of the affiants are
controverted, and the labor arbiter should properly require the presentation
of testimonial evidence. x x x"

26. In such trial, not only are the parties given the opportunity to confront

each other and test the truth of each other's claims but also to present testimonial

evidence to prove their respective assertions. Moreover, such trial on the merits enables

the Labor Arbiter to observe the demeanor of the parties for a proper determination of

the truth or falsity of their claims.

27. Not having conducted the necessary trial notwithstanding the many

important conflicting factual issues present in this case, Labor Arbiter Pati gravely

abused his discretion.

The Labor Arbiter erred in ruling

that the complainant was
constructively dismissed by the
respondents.

28. In rendering his Decision, the Labor Arbiter relied solely on the

complainant's self-serving assertion that she was illegally dismissed by respondent Mrs.

Simtoco on 10 March 1998. Labor Arbiter Felipe Pati ruled that complainant was

constructively dismissed by virtue of respondents' inability to controvert the allegation of

the complainant that after the latter was unceremoniously driven out, she reported for

work the next day but was barred from entering the workplace by reason of respondent's

order that complainant was already dismissed from her job. Worse, the Labor Arbiter

supports his finding of constructive dismissal with the conclusion that respondents'

allegation of abandonment of work by the complainant had not been proven. Precisely,

respondents prayed for trial on the merits to prove their claim of abandonment!
 29. The Labor Arbiter's finding that failure of respondents to prove

complainant's abandonment of work supports a ruling of constructive dismissal is non

sequitur. On the contrary, the respondents were able to refute complainant's claim that

she was driven out and barred entry from the work place by means of documentary

evidence, i.e. the memoranda dated 10 and 17 March 1998.

30. In the memorandum dated 10 March 1998, complainant was informed of

her transfer to another work room in order to avoid further conflict between the latter and

her supervisor, Ms. Gauden Catampongan, who complained of complainant's frequent

absences, inability to attend to the job assigned to her and disrespect for her immediate

supervisor. The 17 March 1998 memorandum on the other hand, showed respondents

having informed complainant that by virtue of her failure to file a leave of absence, her

one-week absence would be considered as an absence without leave.

31. These memoranda belie the claim that respondent dismissed the

complainant from her job. On the contrary, complainant was merely advised that she

was being transferred to another work room. When she failed to report for work after a

week of absence without filing a request for leave, she was further advised that her

absence was considered without leave.

32. Contrary to the Labor Arbiter's findings that respondents can not refute

complainant's claim, it was the complainant who could not substantiate her allegation that

Mrs. Simtoco shouted at her and told her that she was dismissed from work. All she

could present to support her claim was her self-serving allegation which was belied very

clearly during the preliminary conferences when respondents asked her to report back for

work but which request she refused. As the Labor Arbiter himself found in his decision:
 "x x x At the NLRC during the preliminary conference in open Court,
complainant manifested that she was not anymore interested in being
reinstated but merely wanted to collect for separation pay. This just goes
to prove again that complainant's charge for illegal dismissal has no basis.
x x x"

33. While the employer has the burden of proof to establish the legality of an

employee's separation from employment, this rule is not without an exception. When the

employer denies that he dismissed the employee, the burden of proof is shifted to the

employee. The employee now has the burden of substantiating his claim that he was

dismissed by the employer. As the Supreme Court ruled in the recent case of Arc-men

Food, Industries, Inc. vs. NLRC (272 SCRA 366, 372):

"x x x While the burden of refuting a complaint for illegal

dismissal is upon the employer, fair play as well requires that, where the
employer proffers substantial evidence of the fact that it had not, in the
first place, terminated the employee but simply laid him off due to valid
reasons, neither the Labor Arbiter nor the NLRC may simply ignore such
evidence on the pretext that the employee would not have filed the
complaint for illegal dismissal if he had not indeed been dismissed. x x x"

34. The case of

Arc-Men falls

squarely with

the case on

hand. Labor

Arbiter Felipe

Pati stated in

his decision:

"x x x We can't conjecture of a situation where in a lowly worker

 such as herein complainant to concoct imaginary charges, knowing that
with her limited resources against an influential respondent, she is bound
to lose."

35. The Labor Arbiter went on to add:

"x x x We are therefore convinced that herein complainant was

constructively dismissed. The logic is why will an employee seek the help
of a counsel or a forum such as the NLRC if he or she was not pressured
from his or her work? x x x"

36. From the foregoing statements, it is clear that the Labor Arbiter, in

arriving at his decision in the case, relied primarily on his conclusion that the

complainant would not have filed a complaint for illegal dismissal if it were not true. No

substantial evidence, however was cited by the Labor Arbiter to support his conclusion

that complainant was constructively dismissed. This is grave abuse of discretion, plain

and simple. As held in Arc-Men:

"x x x The Labor Arbiter and the NLRC, instead of at least

reviewing whatever countervailing evidence private respondent had vis-a-
vis petitioner's aforedescribed documentary proofs, simply swept under
the rug the issues of lay-off and abandonment of work, relying as they did
on the earlier mentioned notion of the inconsistency between the filing of
a complaint for illegal dismissal and the interposing of the defense of
abandonment by the employee of his work. The Labor Arbiter and the
NLRC is thus guilty of misappreciating the facts and rendering judgement
on dubious factual and legal basis. In other words, herein assailed
decisions are illustrative of a patent case of grave abuse of discretion. x x
x"

37. Although the Labor Arbiter's findings of facts are accorded great weight
and respect, the same should be based on substantial evidence. However, the Honorable
Labor Arbiter, in his decision, did not support his finding of the complainant's
constructive dismissal with any piece of substantial evidence.

"Substantial evidence in labor cases is such amount of relevant

evidence which a reasonable mind will accept as adequate to justify a
conclusion." (Caltex Refinery Employees Association vs. Brillantes, 279
SCRA 218, 227)

38. Clearly, complainant's assertions are self-serving and could not be

considered as substantial evidence in the light of respondents' denial of the same. The
Labor Arbiter relied heavily on complainant's barefaced statement even when this was

unsupported by positive evidence and despite the repeated pleas of the respondents for an

opportunity to confront her and present testimonies in further support of their claim of

abandonment.

39. Since the respondents deny complainant's assertion that they dismissed the

latter from work and instead allege that it was the complainant who abandoned her work,

the burden of proof devolved upon the complainant to substantiate her claim of illegal

dismissal particularly, after respondents presented documentary evidence to bolster their

allegation. And since complainant was not able to prove her charge, the claim of illegal

dismissal has no leg to stand on. Neither is the Labor Arbiter's finding of constructive

dismissal founded on substantial evidence since his basis for this conclusion is the very

same self-serving statement of the complainant which was controverted by respondents'

denial of dismissal and their assertion that complainant was guilty of abandoning her

work.

40. The fact that respondents repeatedly offered during the preliminary

conferences to take her back which offer complainant flatly refused is enough reason to

disbelieve complainant's claim of illegal dismissal and give credence to respondents'

assertion of abandonment.
The Labor Arbiter erred in ruling
that complainant is entitled to
reinstatement to her former
position without loss of seniority
rights, to P66,924.00 in backwages,
P18,414.00 in service incentive
leave pay and unpaid 13th month
pay, P60,306 in salary differentials
and 10% of the total award in
attorney's fees.

Claim for illegal dismissal is belied

by complainant's refusal to accept
the offer of reinstatement.

41. The Labor Arbiter committed a grave abuse of discretion in ordering the

reinstatement of the complainant to her former position without loss of seniority rights

despite complainant's refusal to return to work with respondent company.

42. During the preliminary conference held on 13 May 1998, the respondent,
in the presence of the Labor Arbiter, asked complainant to return to work as she was
never dismissed to begin with. On a succeeding preliminary conference held on 20 May
1998, complainant, in open court and again in the presence of Labor Arbiter Felipe Pati,
stated that she was no longer interested in being "reinstated" but merely wanted to collect
her separation pay. Taking the cue from the complainant, the Labor Arbiter even
mentally computed and verbally communicated the amount of complainant's separation
pay.

43. Since the complainant herself refused to be "reinstated," it was a grave

error on the part of the Labor Arbiter to order her reinstatement. Moreover, how can one

be reinstated to her former work when she was never dismissed in the first place?

Not being entitled to

reinstatement, monetary claims

have no basis.

44. Neither is complainant entitled to her claims for backwages, service

incentive leave pay, 13th month pay, salary differentials and attorney's fees.

45. Not having been dismissed from work, much less illegally dismissed,

complainant can not possibly be entitled to backwages. As earlier discussed,

complainant was not able to substantiate her claim of illegal dismissal.

46. It is a basic rule in evidence that each party must prove his affirmative

allegation (Jimenez vs. National Labor Relations Commission, 256 SCRA 84).

47. Since complainant was unable to prove that she was illegaly dismissed

from work, the Labor Arbiter erred in awarding her backwages of P66,924.00.

48. Neither is complainant entitled to service incentive leave pay in view of

the fact that she is a piece-rate worker. As held in Makati Haberdashery, Inc. vs. NLRC,

et al., (179 SCRA 448, 456):

"On the other hand, while private respondents are entitled to

Minimum Wage x x x they are not entitled to service incentive leave pay
because as piece-rate workers being paid at a fixed amount for performing
work irrespective of time consumed in the performance thereof, they fall
under one of the exceptions stated in Section 1(d), Rule V, Implementing
Regulations, Book III, Labor Code. x x x"
 49. As to the award of 13th month pay, the same is unwarranted in view of

the fact that the respondent had never failed to pay complainant herein her 13th month

pay as evidenced by receipts signed by the complainant, attached to the Position Paper as

Annex "V."

50. Even on the assumption that the complainant is entitled to the salary

differentials as ordered by the Labor Arbiter, the latter seriously erred in its computation

thereof.

51. In the first place, the Labor Arbiter failed to consider the absences of

complainant. As alleged in respondents' Rejoinder, for the period January 1997 to

February 1998 alone, complainant had been absent for a total of one hundred twenty-nine

(129) days.

52. Moreover, the Labor Arbiter relied on complainant's bare assertion in her

position paper that she received P90.00 a day as salary for the past four (4) years of her

employment with respondent company. He failed to consider the fact that as a piece-rate

worker who many times worked less than 8 hours a day, complainant is paid on the basis

of the number of units she produces per day, as had been repeatedly asserted by the

respondents in their pleadings (Position Paper, Reply, Rejoinder).

53. More importantly, complainant's allegation that she was paid P90.00 a day

is not supported by any piece of evidence. On the contrary, she received up to a

maximum of P191.67 a day in 1997 as evidenced by sample weekly payroll vouchers of

the respondents attached herewith as Annexes "A," "B," "C," "D," "E," "F," "G," "H," "I,"

"J," "K," "L," and "M." These vouchers were duly signed by complainant to

acknowledge receipt of her pay for said payroll periods.

 54. By dividing the complainant's gross pay per the weekly payroll vouchers

with the number of days she worked during the week as contained in her Weekly

Production Reports attached to respondents' Position Paper as Annexes "B" to "S," one

will arrive at the amount of gross pay of complainant for each day.

55. A summary of this manner of computation is as follows:

Pay Period (Weekly) Gross Pay for No. of Days Gross Pay per
the Week Worked During Day
the Week

Jan. 12 - 18, 1997 P 1,150.00 6 P191.67

Jan. 19 - 25, 1997 1,133.75 6 188.96
Jan. 26 - Feb. 01, 1997 875.00 5 175.00
Feb. 9 - 15, 1997 842.00 5 168.40
Feb. 16 - 22, 1997 640.80 4 160.20
Feb. 23 - Mar. 01, 1997 161.20 1 161.20
Mar. 2 - 8, 1997 716.39 5 143.28
Mar. 9 - 15, 1997 502.89 3 167.63
Mar. 16 - 22, 1997 994.78 6 165.80
Mar. 30 - Apr. 5, 1997 300.68 2 150.34
Apr. 6 - 12, 1997 1,020.35 6 170.06
Apr. 20 - 26, 1997 711.00 4 177.75
Apr. 27 - May 3, 1997 381.00 2 190.50

56. The aforesaid weekly payroll vouchers, Weekly Production Reports and

Summary of Payroll completely destroy complainant's allegation that she was paid a

mere P90.00 a day for the entire length of her stay with respondent company. The Labor

Arbiter, therefore, erred in his computation of salary differentials since he based the same

on complainant's alleged P90.00 daily salary without even bothering to consider the
uncontroverted documentary evidence of respondents on the matter.

57. The weekly payroll vouchers and Weekly Production Reports for this

entire period are so voluminous to allow attachment herewith, considering that there are

fifty-two (52) weeks in one year and that the period in question covers more than 4 years.

This is precisely one of the reasons why respondents have insisted on presenting

witnesses, to facilitate the evaluation and consideration of the thick documentary

evidence. If required, respondents are willing to present all of them before the

Honorable Commission.

58. Finally, complainant is not entitled to the award of attorney's fees. One

should not be given a premium for litigating a baseless and unfounded suit. For in so

doing, she wasted the precious time and resources, not only of this Honorable

Commission but also of the parties involved.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that -

1. this Appeal be given Due Course;

2. the Decision of the Hon. Labor Arbiter Felipe P. Pati be set

aside and a new one entered dismissing the above-entitled case; or in the

alternative

3. An Order be issued granting respondents' Motion for Trial

on the Merits.

Other reliefs, just and equitable under the premises, are likewise respectfully

prayed for.