REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT

NATIONAL LABOR RELATIONS COMMISSION
QUEZON CITY

PACIFIC MEDITERRENIAN
INTL MANPOWER AGENCY,
INC., JIHAD ABDUL AZIZ AL
RASHED and GEMMA A.
DOLLENTAS,
Petitioners,

-versus- FOR: EXTRAORDINARY REMEDIES

AND URGENT PRAYER FOR RESTRAINING
ORDER

NLRC LAC NO. (OFW-M) 11-000959-12

NLRC NCR-CASE NO. 11-1733011

LABOR ARBITER ROMELITA

N. RIOFLORIDO/ JOSEPH Q.
SISON,
Respondents.
x------------------------------------------x

PETITION

PETITIONERS, through its authorized representive, Gemma A.

Dollentas, unto this Honorable Commission, most respectfully state that:
 NATURE OF THE PETITION

This petition is filed before this Honorable Commission under Section

1, Rule XII (Extraordinary Remedies) of the 2011 NLRC Rules of Procedure, to
REVIEW, REVERSE, SET ASIDE, and ANNUL the Order dated July 19, 2013 of
public respondent Labor Arbiter.

An authentic copy of said Order is hereto attached as Annex A;

STATEMENT OF MATERIAL DATES /

TIMELINESS OF THIS PETITION

Petitioners received on August 7, 2013 a copy of the public

respondent Labor Arbiters Order dated July 19, 2013.

This petition is being filed within the reglementary period as

petitioner has a period of ten (10) days from August 7, 2013, or up to
August 20, 2013, the first working day after August 17, 2013 (tenth day),
within which to file the same with this Honorable Commission.

THE PARTIES

Petitioner Pacific Mediterrenean Intl Manpower Agency, Inc.

(hereinafter referred to as PMIMAI) is a domestic corporation with principal
office at Suite A,B,C, & D Taft Business Center, 2143-2159 Taft Ave., Malate,
Manila where it may served with summons, notices and proceses of this
Honorable Court and duly represented herein by its President, Gemma A.
Dollentas, as shown by Secretarys Certificate, copy of which is hereto
attached as Annex E.

Petitioner Gemma A. Dollentas, is the President of PMIMAI and may

served with summons, notices and other judicial processes of this Honorable
Commission at the aforesaid address.
 Petitioner Jihad Abdul Aziz Al Rashed is the foreign principal of
PMIMAI with postal address at P.O. Box 293 Industrial Area, KSA and will be
represented herein by petitioner Gemma Dollentas.

Public respondent Honorable Labor Arbiter Romelita N. Rioflorido is

impleaded since her Order datd July 19, 2013 is sought to be reversed, set
aside, and annulled.

Private respondent is the complainant in the instant case and may be

served with summons and other court/legal processes at his address in #33
Sitio Calibutbut, Telabastagan, San Fernando, Pampanga.

FACTUAL AND PROCEDURAL ANTECEDENTS

Private respondent was hired by herein petitioner in behalf of its

principal, petitioner Jihad Abdul Aziz Al Rashed, to work for Kingdom of
Saudi Arabia (KSA). Before his deployment in KSA, private respondent
underwent a medical check-up at St. Vincent Medical Clinic here in Manila,
where he was issued a recommendation that he was fit to work. He left
for KSA on October 7, 2011. Upon his arrival thereat, he was again
medically checked by Al Wattan Clinic and Al Wattan Medical Group.
Pending the results of his medical clinic check up, private respondent
proceeded to employer. The Yamana Saudi Cement Company, Ltd. (AL
Yamana), where he was employed as Electrical Inspector.

On October 8, 2011, Al Wattan Clinic released the result of the

medical findings on the private respondent, showing that he is medically
unfot to work. On October 16, 2011, on the basis of the said medical
findings, Al Yamana, informed petitioners that it was sending back the
private respondent to the Philippines.

On November 18, 2011, private respondent instituted the instant case,

alleging among others that he was illegally dismissed and prayed for
payment of his salary for the unexpired portion of the contract as well as
other money claims.
 After the submission of parties respective position papers and replies,
public respondent rendered a Decision, the dispositive portion of which
reads, as follows;

WHEREFORE, a decision hereby rendered declaring complainant to have been

illegally dismissed. Respondents Pacific Mediterrenean International Manpower Agency,
Inc., Jihad Abdul Aziz Al Rashed and/or Gemma A. Dollantes are directed to pay
complainant the sum of SR1115,000.00 representing the unexpired portion of his
contract plus 10% thereof as attorneys fees. Other claims are denied.

SO ORDERED.

Aggrieved by the said Decision of the public respondent as the same

is erroneous and of arbitrary nature in favor of the private respondent,
petitioners timely filed its Memorandum of Appeal.

On November 29, 2013, the Honorable Commission (Third Division)

issued an Order directing petitioners to possst additional bond in the
amount of P766,150.00 within five (5) days from receipt thereof.

On December 16, 2012, petitioner filed its Motion for

Reconsideration of the NLRC Order dated November 29, 2012.

On March 1, 2013, petitioner received a copy of the Honorable

Commissions (Third Division) Decision promulgated on January 31, 2013, the
dispositive portion of which reads, as follows:

WHEREFORE, premises considered, the Motion for Reconsideration is denied

and the appeal is hereby DISMISSED for non-perfection.

SO ORDERED.
 On April 13, 2013, petitioners filed a Petition for Certiorari with
prayer for injunction and temporary restraining order. The said petition is
anchored on the following arguments:

x x x x

While it is true that an appeal from a decision involving a

monetary award may be perfected only upon the posting of a cash or
surety bond, the Supreme Court, however, has relaxed this
requirement under exceptional circumstances in order to resolve
controversies on their merits. These circumstances include: (1)
fundamental consideration of substantial justice; (2) prevention of
miscarriage of justice; and (3) special circumstances of the case
combined with its legal merits, and amount and the issue involve.
(Interanz Contanair Lines, Inc. vs. Bautista, 625 SCRA 75 [2010].
Posting of a bond equivalent to the amount awarded to the private
respondent by the labor arbiter is obviously not fair and unjust, and
will surely result to injustice on the part of the petitioners, considering
that the said award is inconsistent with jurisprudence and applicable
laws. Likewise, posting of a bond in such big amount might result in
the closure of petitioners company.

The Supreme Court, in Nicol vs. Footjoy Industrial Corporation,

(G.R. No. 159372, July 27, 2007), regarding the bond requirement of
perfecting appeal, summarized the guidelines under which the National
Labor Relations Commission (NLRC) must exercise its discretion in
considering appelants motion for reduction of bond, viz: [T]he bond
requirement on appeals involvinf monetary awards has been and may
be relaxed in meritorious cases. This cases include instances, in which
(1) there was substantial compliance with the Rules, (2) surrounding
facts and circumstances constitute meritorious grounds to reduce bond,
(3) a liberal interpretation of the requirements of an appeal bond
would serve the designed objective of resolving controversies on the
merits, or (4) the appellants at the very least, exhibited their
willingness and/or good faith by posting a partial bond during the
reglementary period.
 Clearly public respondent failed to follow the foregoing
guidelines; thus, gravely its discretion in not resolving the instant case
on the merits and denying the appeal peremptorily for lack of
sufficient appeal bond. Public respondent should determine the merit
of petitioners ground for reduction of appeal bond through the
reception of evidence instead of requiring it to put up bond in the
equivalent amount to the award without regard to its reasons and
arguments, and without determining for itself what is reasonable
under the circumstances. In Nicol vs. Footjoy Industrial Corporation,
(Ibid), the Supreme Court further ruled that:

[T]he NLRC has not precluded from making a preliminary

determination of their [the employer financial capability to post the
required bond, without necessarily passing upon the merits. Since the
intention is merely to give the NLRC an idea of the justification for
the reduced bond, the evidence for the purpose would be necessarily
be less than the evidence required for a ruling on the merits.

Indeed, it only bears stressing that the NLRC is not precluded

from receiving evidence on appeal as technical rules of evidence are
not binding in labor cases. On the contrary, the Labor Code explicitly
mandates it to use every and all reasonable means to ascertain the
facts in each case speedily and objectively without regard to
technicalities of law.

Public respondent should have consider the appeal of the

petitioners and allow the submission of evidence to prove its financial
incapacity to post the required appeal bond in line with the desired
objective of resolving the controversies on the merits.

When public respondent dismissed the petitioners appeal on the

ground of non-perfection for failure to post sufficient bond, it failed to
scrutinize the evidence on record that there was no illegal termination;
and that private respondents contract with his foreign employer was
pre-terminated due to health problem and there is sufficient
documentary evidence basis to support the said allegation. The record
clearly demonstrates that an accredited medical clinic in KSA issued a
medical certificate showing that private respondent is unfit to work.
The contents of said medical certificate was never disputed by private
respondent, hence, the same is the credible evidence to prove his
medical condition, but the same was disregarded by the Labor Arbiter
in deciding the instant case. It is a rule that an evidence which was
not objected to nor denied is deemed admitted and can be validly
considered by the court in arriving in its judgement. (Section 7 and 8,
Rule 8 of the Rules of Court.

Granting without admitting that the private respondent was

illegally terminated, the awardable monetary claims in his favor should
not be more than his three (3) months salary.

The labor arbiter committed a serious error in awarding the

monetary award in favour of the private respondent because it is not
consistent under the MIGRANT WORKERS ACT OF 1995 or R.A. 8042 as
amended by R.A. 10022 which is the applicable law in the instant case.

It appears that there was erroneous application of said

MIGRANT WORKERS ACT OF 1995. Under the said law. It is expressly
provided that in case of illegal termination of the worker, the same
worker is entitled for the salaries of the unexpired portions of his
employment contract or THREE (3) MONTHS SALARIES FOR EVERY
YEAR OF THE UNEXPIRED TERM WHICHEVER LESS. The said provision
of the MIGRANT WORKERS ACT OF 1995 which is R.A. 8042, reads:

Section 10, R.A. 8042

In case of termination of overseas employment without just,

valid or authorized cause as defined by law or contract, the worker
shall be entitled to the full reimbursement of his placement fee with
interest at twelve percent (12%) per annum. Plus his salaries for the
unexpired portion of his employment contract OR for three (3) months
for every year of unexpired term, whichever less.
Section 7 of R.A. 10022 provides among others:

In case of termination of overseas employment without just,

valid or authorized cause as defined by law or contract, or any
unauthorized deductions from the migrant workers salary, the worker
shall be entitled to the full reimbursement of his placement fee and
the deductions made with his salaries for the unexpired portion of his
employment contract or FOR THREE MONTHS FOR EVERY YEAR OF
THE UNEXPIRED TERMS WHICHEVER IS LESS.

It is very unfortunate the Decision of the Labor Arbiter failed to

consider the afore-qouted provisions of the R.A. 8042 and R.A. 10022
to the damage and prejudice of the petitioners.

Assuming therefore that private respondent was illegally

terminated, the awardable amount should not be more that
SR15,000.00 or equivalent to three months salary of the private
respondent consistent with the afore-qouted provisions of law.

Clearly, if the Decision of the public respondent affirming the

erroneous decision of the labor arbiter will not be corrected, it will
cause irreparable damage and prejudice on the petitioners.

Private respondent filed an Urgent Motion for Issuance of Writ

of Execution, copy of which hereto as Annex B.

On July 8, 2013 petitioner filed an Comment/Opposition with

Motion to Set the Case for Conference on the said motion, copy of
which is attached hereto as Annex C.

On July 19, 2013, private respondent filed before the Honorable

Court of Appeals a Motion for Time to file Comment on petitioners
Petition for Certiorari, copy of which is attached hereto as Annex D.
 Also, on July 19, 2013, public respondent Labor Arbiter issued
an Order (Annex A thereof), the dispositive portion of which reads
as follows:

WHEREFORE, the complainants motion is granted.

Let a Writ of Execution issue.

SO ORDERED

GROUNDS TO JUSTIFY THE ANNULMENT OF THE ASSAILED

ORDER DATED JULY 19, 2013 AND TO JUSTIFY THE
ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION AND A
TEMPORARY RESTRAINING ORDER

This petition is filed on the following grounds:

FIRST GROUND

THAT THERE IS PRIMA FACIE EVIDENCE OF GRAVE ABUSE OF

DISCRETION ON THE PART OF THE LABOR ARBITER.

SECOND GROUND

THAT SERIOUS ERRORS IN THE FINDINGS OF FACTS ARE RAISED

WHICH, IF NOT CORRECTED, WOULD CAUSE GRAVE OR
IRREPARABLE DAMAGE OR INJURY TO PETITIONERS.

THIRD GROUND

THAT THE ASSAILED ORDER WILL CAUSE INJUSTICE TO THE

PETITIONERS IF NOT RECTIFIED.

ARGUMENTS / DISCUSSIONS
 The Decision of the Honorable Commission which includes the
Decision of the public respondent Labor Arbiter in NLRC-LAC Case No.
(OFW-M) 11-000959-12/NLRC NCR Case No. (L) 11-17330-11 are under
review through Petition for Certiorari by the Honorable Court of
Appeals in CA-G.R. No. CV-98251, entitled Pacific Mediterrenean Intl.
Manpower Agency, Inc, et. Al., vs. NLRC., et. Al., and the herein
petitioners honestly believe that they have valid and meritorious
grounds to sustain said petition.

Perusal of the petitioners Petition for Certiorari before the

Court of Appeals would show patent errors in the assailed Decisions
warranting its reversal and annulment, and consequently declaring the
dismissal of private respondent valid.

It should be noted the said petition was given due course by

the Court of Appeals. Petitioners were directed to submit additional
documents instead of ordering the outright dismissal of the same.
Private respondent is likewise ordered to file his Comment and/or
Opposition on the said petition, in fact, he asked for time to comply
with said order through his Motion dated July 19, 2013.

The implementation and execution of the assailed Decision in

NLRC NCR Case NO. (L) 11-17330-11, through the assailed Order of
public respondent, and garnishment of petitioners cash bond during
the pendency of petitioners Petition for Certiorari before the
Honorable Court of Appeals would probably work injustice to the
petitioners. It will pre-empt and render moot and ineffectual whatever
decision of the Honorable Court of Appeals may render, to petitioners
irreparable damage and prejudice. In that case, herein petitioners
would be left without recourse to recover from private respondents
the money he may collect from the cash bond posted therein.

The premature issuance of the assailed Order is a clear case of

grave abuse of discretion on the part of public respondent Labor
Arbiter which if not corrected, would cause grave or irreparable
damage or injury as well as injustice to the petitioners.
 In view thereof, there is urgrent necessity for the grant of
Temporary Restraining Order and a Writ of Preliminary Injunction to
enjoin the implementation of the assailed Order dated July 19, 2013
of public respondent Labor Arbiter, in order to protect the substantive
rights of the petitioners.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed

of this Honorable Commission that the Order Dated July 19, 2013 of
public respondent Labor Arbiter, be reversed and set aside for having
been issued in grave of discretion.

It is likewise prayed that writ of preliminary injunction or

restraining order be issued, in the meantime, restraining public
respondent Labor Arbiter from implementing and executing the assaile
Decision to preserve the right of the parties and the status qou
pending resolution of this petition.

Other relief just and equitable is likewise prayed for.

Quezon City, August 19, 2013.

GEMMA A. DOLLENTAS
Authorized Representative

Copy furnished:
 EXPLANATION

Copies of this Petition were served upon the above named

Counsel and parties by registered mail with return card due to
distance and time constrains as well as lack of personnel to effect
personal service thereof.

GEMMA A. DOLLENTAS

VERIFICATION

I, GEMMA a. DOLLENTAS, after being duly sworn, depose and

say:

That I am authorized representative of the petitioner companies

in the above-entitled case as shown by the SECRETARYS CERTIFICATE
(Annex E of the Petition); that I caused the preparation of the
foregoing Petition with this Honorable Commission; that I read the
contents thereof and the same are true and correct of my own
personal knowledge and after verification of the authenticity of the
records from which the documents attached were taken.

GEMMA A. DOLLENTAS
Affiant

SUBSCRIBED AND SWORN to before me this _______ of August

1, 2013, in ___________ by affiant Gemma A. Dollentas, who has
satisfactorily proven to me her identity after exhibiting to me her
__________________; that she is the same person who personally
signed the foregoing Verification before me, and acknowledged that
she executed the same as her own free and voluntary act and deed.

Notary Public
Doc. No.__________
Page No. _________
Book No._________
Series of 2013

Mr. Joseph Q. Sison

Atty. Irene D.T. Alogoc

Gemma A. Dollentas

ORIGINAL COPY RECEIVING COPY

ANNEX A ANNEX B

ANNEX C ANNEX D

ANNEX E