Republic of the Philippines

COURT OF APPEALS
Manila

SPECIAL FIFTEENTH DIVISION

CEBGO INC.,
Petitioner,

- versus - CA-G.R. SP NO. 148186

SARAH S. SYED, NATIONAL

LABOR RELATIONS
COMMISSION (Third Division)
Respondents.
x----------------------------------x

COMMENT/OPPOSITION TO PETITIONER’S
MOTION FOR RECONSIDERATION

The private respondent SARAH S. SYED, through

counsel, and unto the Honorable Court, most respectfully
avers that:

1. On February 13, 2018, the private respondent,

through counsel, received a copy of the Order of the Honorable
Court dated January 18, 2018, directing herein private
respondent to file its Comment to Petitioner’s Motion for
Reconsideration within ten (10) days from notice thereof or
until February 23, 2018. Hence, the timely filing of this
Comment/Opposition.

2. Petitioner’s Motion for Reconsideration dated

November 24, 2017 is bereft of any merit because it is
apparent that no new issues are raised by petitioner. The
arguments presented therein are a mere rehash of what have
been said and reiterated by the petitioner in its pleadings,
most specifically in its Memorandum dated July 17, 2017, all
of which have been considered and found without merit in the
Decision issued by the Honorable Court dated October 26,
2017.

3. While a motion for reconsideration, by its very

nature, may tend to dwell on issues already resolved in the
1

decision sought to be reconsidered, however, with all due

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respect, the petitioner in the instant case has failed to raise

matters substantially plausible or compellingly persuasive to
justify the reconsideration sought.

4. As declared by the Honorable Court, petitioner

failed to substantially prove that private respondent
committed theft. In its Decision, the Honorable Court made the
following pronouncement:

“While Rommel and Christopher may have

submitted their written affidavits to report Sarah in the
alleged act of taking company properties, their
testimonies during the administrative hearing proved
otherwise. We quote with approval the ruling of the
NLRC and Labor Arbiter regarding this manner, to wit:

As correctly pointed out by the Labor

Arbiter, respondents’ main witness to the
alleged stealing of complainant, Mr.
Delantina, denied having seen complainant
bring out the subject uniform shirt from the
stockroom. While it appears that Mr.
Delantina testified during his direct
examination that he saw complainant
brought out shirts from the stockroom and
placed it in her trolley x x x, during his
cross-examination he denied having seen
complainant bring out the subject item. x x x
For emphasis, we quote the pertinent portion
of Mr. Delatina’s testimony during his cross-
examination:

Sept 29, 2015

Q32: Ang sabi mo nakita mo si Sarah

sa loob ng stockroom?
A32: Opo.

Q33: Ano ang ginawa nung nakita mo?

A33: Nakita ko po kumuha siya ng
polo shirt.

Q34: Nung lumabas sya ng kwarto

may nakita ka ba na hawak nya polo
shirt?
A34: Wala po. (sic)

Q35: Inilabas nya ba yung polo

shirt? (sic)
2

A35: Hindi po.

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 XXX XXX XXX

Similarly, while it appears that Mr.

Tanjanlangit testified during his direct
examination that he saw complainant with
two uniforms in her hands, however, during
his cross-examination, he also denied having
seen complainant bring out shirt outside of
the stockroom. x x x.

Q4: In your Q&A statement, you said

you saw Ms. Syed go out of the
stockroom with 2 poloshirt holding
allegedly and go back inside storage?
A4: Yes.

Q5: When you saw Ms. Syed, is she

already outside the (stock) room?
A5: A little outside.

Q6: According to you she went back

inside again?
A6: Yes.

Q7: Did you see her go out again?

A7: No.

Q8: So you did not see her bring

the shirt outside the stockroom
after that?
A8: No.

Concerning the discrepancies between

the affidavits and testimonies of [the
prosecution] witnesses, suffice it to say that
time and again, this Court has held that
when there is an inconsistency between the
affidavit and the testimony of a witness [in
court], the testimony commands greater
weight.1

5. As can be gleaned from the above-quoted testimony

of witness Delatina, the questions propounded to him were
formed in plain, simple and clear language, while his answers
to the same were spontaneous, unhesitant and direct.
Moreover, during the said questioning, there was no indication
that the witness got confused or that he did not understand
what was being asked of him. Thus, his statement that he did
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Page

1 Emphasis supplied
not see that private respondent brought out the polo shirts
from the stockroom and placed it in her trolley shall stand.

6. Further, the glaring inconsistencies in the

testimonies of witness Delatina, as enumerated by petitioner,
shall not be taken against the private respondent for these
would only prove that the accusations of theft against the
latter are false and mere concoctions of truth.

7. Petitioner’s argument that this Honorable Court

required the petitioner to prove the guilt of private respondent
with absolute certainty has no basis. In fact, the Honorable
Court made it clear that petitioner failed to substantially
prove that private respondent committed theft, to wit:

“There can be no allegation of theft against Sarah

when the actual number of polo shirts in CEBGO’s
possession at that time was in doubt.

Unlike in other cases where the complainant has

the burden of proof to discharge, in labor cases
concerning illegal dismissals, the burden of proving that
the employee was dismissed with just cause rests upon
the employer.

After a careful review of the entire records of the

case, CEBGO failed to substantially prove that Sarah
committed theft in the first place. We affirm the Labor
Arbiter and the NLRC’s findings that Sarah did not steal
two (2) flight uniforms. Hence, Sarah did not commit
any misconduct.”2

8. In the case of Grand Asian Shipping Lines v.

Galvez , the Honorable Supreme Court held that:
3

After examination of the evidence presented,

however, we find that petitioners failed to substantiate
adequately the charges of pilferage against respondents.
The quantum of proof which the employer must
discharge is substantial evidence. Substantial evidence
is that amount of relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion, even if other minds, equally reasonable,
might conceivably opine otherwise.
4
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2 Emphasis supplied
3 G.R. No. 178184, January 29, 2014
 Here, the mere filing of a formal charge, to our
mind, does not automatically make the dismissal valid.
Evidence submitted to support the charge should be
evaluated to see if the degree of proof is met to
justify respondents’ termination. The affidavit
executed by Montegrico simply contained the
accusations of Abis that respondents committed
pilferage, which allegations remain uncorroborated.
Unsubstantiated suspicions, accusations, and
conclusions of employers do not provide for legal
justification for dismissing employees. The other bits
of evidence were also inadequate to support the charge
of pilferage. The findings made by GASLI’s port captain
and internal auditor and the resulting certification
executed by De la Rama merely showed an
overstatement of fuel consumption as revealed in the
Engineer’s Voyage Reports. The report of Jade Sea Land
Inspection Services only declares the actual usage and
amount of fuel consumed for a particular voyage. There
are no other sufficient evidence to show that
respondents participated in the commission of a serious
misconduct or an offense against their employer.4

The testimonies of petitioner’s witnesses are not only

inconsistent but are also unsubstantiated and uncorroborated
with competent evidence. Moreover, the uncertainty as to the
total number of the polo shirts seriously weakens the
allegation that private respondent has stolen two (2) polo
shirts. Thus, petitioner failed to present any substantial
justification that merits a reconsideration of the challenged
Decision.

9. In its Motion for Reconsideration, petitioner asserts

that the Honorable Court erred when it modified the award of
backwages and separation pay, while basing its claim on the
full satisfaction of the judgment award and the fact that there
was no order of reinstatement made by the public respondent.
The petitioner miserably failed to check the ruling in the
recent case of Lim v. HMR Philippines, Inc.5, wherein the
Honorable Supreme Court shed light on the question on
whether the recomputation of the backwages by the Court of
Appeals would violate the principle of immutability of
judgments. In the said case, the Honorable Supreme Court
ruled in the negative and upheld the authority of the
Honorable Court of Appeals to recompute the monetary
awards granted by the labor arbiter and/or NLRC, thus:
5
Page

4 Emphasis supplied
5
G.R. No. 201483, August 4, 2014
 A re-computation (or an original computation, if
no previous computation has been made) is a part of the
law – specifically, Article 279 of the Labor Code and the
established jurisprudence on this provision – that is
read into the decision. By the nature of an illegal
dismissal case, the reliefs continue to add on until full
satisfaction, as expressed under Article 279 of the Labor
Code. The re-computation of the consequences of
illegal dismissal upon execution of the decision does
not constitute an alteration or amendment of the
final decision being implemented. The illegal
dismissal ruling stands; only the computation of
monetary consequences of this dismissal is affected and
this is not a violation of the principle of immutability of
final judgments.6

Veritably, petitioner lacks basis in law and jurisprudence

when it stated that the Honorable Court should confirm the
award rendered by the public respondent. The authority of the
Honorable Court to decide on the case would be limited in
scope, if we were to adopt the position of petitioner.

10. Relative is the case of Session Delights Ice Cream

and Fast Foods v. Court of Appeals7, wherein the Honorable
Supreme Court held that:

“That the amount the petitioner shall now pay

has greatly increased is a consequence that it
cannot avoid as it is the risk that it ran when it
continued to seek recourses against the labor
arbiter’s decision. Article 279 provides for the
consequences of illegal dismissal in no uncertain terms,
qualified only by jurisprudence in its interpretation of
when separation pay in lieu of reinstatement is
allowed. When that happens, the finality of the illegal
dismissal decision becomes the reckoning point instead
of the reinstatement that the law decrees. In allowing
separation pay, the final decision effectively declares
that the employment relationship ended so that
separation pay and backwages are to be computed up to
that point. The decision also becomes a judgment for
money from which another consequence flows the
payment of interest in case of delay.”8
6

6 Emphasis supplied
Page

7 G.R. 172149, February 8, 2010

8
Emphasis supplied
 The increase in the amount of the backwages and
separation pay that petitioner was ordered to pay is the result
of the exercise of expanded judicial review over labor cases by
the Honorable Court. It is a settled rule that the Honorable
Court can review the finding of facts of the NLRC and the
evidence of the parties to determine whether the NLRC gravely
abused its discretion in deciding that there was illegal
dismissal.9

11. The petitioner likewise argues that the imposition

by the Honorable Court of 6% interest is erroneous
considering its previous payment of the monetary award. The
petitioner is mistaken. It must be emphasized that in its
Decision, the Honorable Court declared that “all monetary
awards shall earn interest of 6% per annum until fully paid”.
Contrary to the petitioner’s theory, the 6% interest per annum
was imposed with respect only to the unpaid portion of the
monetary awards. Hence, petitioner’s outcry is clearly
misplaced.

12. Verily, the Honorable Court is correct when it

imposed 6% interest per annum on the monetary awards. The
same is in accordance with the ruling of the Honorable
Supreme Court in the case of Nacar v. Gallery Frames10, to wit:

To recapitulate and for future guidance, the guidelines

laid down in the case of Eastern Shipping Lines are
accordingly modified to embody BSP-MB Circular No. 799,
as follows:

xxx

When an obligation, not constituting a loan or

forbearance of money, is breached, an interest on the
amount of damages awarded may be imposed at the
discretion of the court at the rate of 6% per annum.
Accordingly, where the demand is established with
reasonable certainty, the interest shall begin to run
from the time the claim is made judicially or
extrajudicially (Art. 1169, Civil Code), but when such
certainty cannot be so reasonably established at the
time the demand is made, the interest shall begin to run
only from the date the judgment of the court is made (at
which time the quantification of damages may be
deemed to have been reasonably ascertained). The
actual base for the computation of legal interest
7
Page

9 Lirio v. Genovia, G.R. No. 169757, November 23, 2011

10 G.R. No. 189871, August 13, 2013
 shall, in any case, be on the amount finally
adjudged.11

13. All told, it is then clear that petitioner miserably

failed to present any cogent reason to warrant the
reconsideration and setting aside of the Decision dated October
26, 2017. Consequently, said Decision of this Honorable Court
must be maintained.

PRAYER

WHEREFORE, it is most respectfully prayed that

petitioner’s Motion for Reconsideration dated November 24,
2017 be DENIED for being patently without merit.

Other just and equitable reliefs are likewise prayed for.

City of Manila; February 21, 2018.

Law Firm of ILDEBRANDO D. VIERNESTO & PARTNERS

Counsel for the Private Respondent
Unit 22G Pearl of the Orient Tower
1240 Roxas Blvd., Ermita, Manila 1000.

By:

MARIA IRENEA C. RAMILO

Roll No. 69346
PTR No. 3897119; 01/09/18; Pasig City
IBP Lifetime No. 016695; 05/11/17; Quezon City
MCLE Compliance No. (Admitted to the Philippine
Bar in 2017)
irene_ramilo@yahoo.com
+639770991237

ILDEBRANDO D. VIERNESTO
Roll No. 39205
PTR No. 7002558; 01/03/18; Manila
IBP No. 1006129; 01/03/18; Manila III
MCLE Compliance No. V-0014252
attybrando@yahoo.com
+639062363340
8
Page

11 Emphasis supplied
COPY FURNISHED:

ATTY. CHATRU ANTHONY ESTILO

Reyes-Beltran Flores & Ballicud Law Offices
Counsel for Petitioner
40/F, Robinsons-Equitable Tower
ADB Avenue cor. Poveda Road
Ortigas Center, Pasig City

NATIONAL LABOR RELATIONS COMMISSION

(THIRD DIVISION)
Public Respondent
PPSTA Bldg., Banawe
Quezon City

EXPLANATION
(Pursuant to Sec. 11, Rule 13
of the 1997 Rules of Civil Procedure)

The foregoing Comment/Opposition to Petitioner’s Motion

for Reconsideration was served by registered mail because of
the lack of messengerial personnel and the numerous
pleadings to be filed on the same day.

MARIA IRENEA C. RAMILO

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