REPUBLIC OF THE PHILIPPINES
Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch
Cordillera Administrative Region
Baguio City
MARIA OGANDA Q. GATBONTON,
Complainant,
--versus -- NLRC Case No. RAB-
CAR-09-037-18-S.O.06-
BUKWANG INTERNATIONAL PRIME 09(2018)
AGENCY AND
VICTORIA B. PENETRANTE,
Respondents.
x------------------------------------------x
ANSWER TO THE APPEAL
(WITH MOTION TO DISMISS)
Complainant-appellee MARIA OGANDA Q. GATBONTON
through the undersigned counsel, with all due respect submits
this ANSWER TO THE APPEAL WITH MOTION TO DISMISS.
Moreover, the complainant received a copy of the Notice of
Appeal with Memorandum dated September 26, 2019 on October
16, 2019.
THE PARTIES
Complainant-appellee MARIA OGANDA Q. GATBONTON, is
of legal age, Filipino and a resident of 4A-1 Dangwa Street,
Cresencia Village, Guisad, Baguio City. She can be served with
summons and other lawful processes of this Honorable Office
through the undersigned counsel’s address.
Respondent-appellants VICTORIA PENTRANTE, of legal
age, Filipino citizen and BUKWANG PRIME INTERNATIONAL
AGENCY Inc. is a corporation duly organized and existing under
Philippine laws, engaged in recruitment and deployment of
Overseas Filipino Workers abroad. Summons and other
processes of this Honorable Office for both may be served in 4th
Flor, Queen Rose Building, 911 San Andres corner Leon Guinto
Street, Malate, Manila.
STATEMENT OF FACTS
Complainant-appellee was hired by respondent-appellant to
work in Singapore. After complying with the training and
documentary requirements, she signed her employment contract
stating among others that she will be working in Singapore for
two years. She will be receiving 400USD on a monthly basis.
Complainant-appellee was deployed in Singapore. Upon her
arrival, she was fetched by the foreign broker in the airport and
went to the Ministry of Manpower for a briefing. After, she was
brought to the office of the foreign broker ready to be deployed to
her employer.
She was then brought to the residence of her foreign
employer where she worked diligently without any complaint of
her services. She was even required to work not only for her
employer but for her employer’s relatives. However, after three
months of working, she was instructed to clean two houses she
was informed that her service is not needed anymore.
Having in mind her purpose in going to Singapore, she
pleaded her employer not to return her to the foreign agency
because she finished her salary deductions stage and will receive
her salary at last to be able to send some to her family in the
Philippines. Despite her pleas, she was returned to the foreign
agency where she was forced to suffer work because she cannot
buy her own ticket to come back to the Philippines.
While complainant-appellee was in the agency,
complainant-appellee requested the agency that she be
repatriated but she was required to buy her own ticket.
Considering that she did not earn any from her employment, she
cannot buy her ticket so she was allowed to stay in the
accommodation but she will work as helper to earn her keeps.
She was then informed that she has new employer. Her
second employer again sent her back to the agency due to the
mistake of another househelper. She was sold further to her
third employer. For the third time, her employer just informed
her that her employer does not like her face and terminated her
employment. Complainant-appellee respectfully informed her last
employer to send her directly in the Philippines and not to the
foreign agency. Lucky enough her last employer bought her
ticket going to the Philippines.
She has the same experience with her three employers. Her
employment was terminated during the month when she is still
suffering from salary deduction. This resulted to her inability to
receive any salary to send to her family in the Philippines.
Answer to the Appeal with Motion to Dismiss Page 2 of 8
Complainant-appellee was repatriated to the Philippines.
She then filed the instant case. Despite numerous conferences,
settlement of the case was not reached thus complainant-
appellee filed a regular complaint.
When the scheduled mandatory conference was terminated
due to the absences of respondents-appellants, the Honorable
Labor Arbiter ordered parties to submit that Position Papers
shall be submitted.
After the filing of the last pleading, the Honorable Labor
Arbiter decided in favor of complainant-appellee. Unsatisfied
with the decision, respondents-appellants filed their
Memorandum on Appeal. Thus this pleading was filed.
ISSUES
1. Whether Honorable Labor Arbiter erred in holding that
complainant-appellee was illegally dismissed and ordering
the respondents-appellants to pay the following:
1.1. Salary corresponding to the unexpired portion of her
contract in the amount of USD 7,600;
1.2. Unpaid salaries in the amount of USD 1,960;
1.3. Attorney’s Fees equivalent to 10% of the foregoing
judgment award.
2. Whether respondent-appellants’ instant appeal was
perfected.
DISCUSSION
Complainant-appellee hereby re-pleads all her allegations
in her prior pleadings.
It is the contention of the respondents-appellants that
complainant-appellee was not illegally dismissed because she
resigned. Thus, she cannot file any case against the local agency.
Complainant-appellee respectfully begs to disagree.
Complainant-appellee’s employment was terminated by her
employer when she was told that her service is not needed in
their household. Her employer brought her back to the
agency/foreign broker where she was required to work as helper
to the accommodation for her food and shelter.
Answer to the Appeal with Motion to Dismiss Page 3 of 8
It is clear that complainant-appellee was dismissed from
her employment by her employer without any just or authorized
causes provided by law but by her employer’s voluntary act and
decision. Complainant-appellee’s employment contract provided
for the period of her employment which is two years however her
employer ended it when her service was not needed anymore.
Moreover, when complainant-appellee reached the foreign
agency instead of helping her to return to the Philippines, she
was still required to pay for her ticket when in fact they know
they collected her salaries from her employer. And she was sold
further to another employer whom she suffered the same salary
deductions despite her request for repatriation.
It must be expressed that special protection is given to
Overseas Filipino Workers in order to protect them from
exploitation, abuses and injustices committed by foreign
employer. Under the law, OFW is protected against their foreign
employer and recruitment agency in cases of illegal termination
of service and other violations to their respective employment
contract.
Having been illegally dismissed complainant-appellee is
entitled to the payment of the full unexpired portion of the
contract as provided for by law. In the case of Serrano vs.
Gallant Marine Services1 the Honorable Supreme court ruled
that in case of termination of overseas employment without just
cause, valid or authorized cause as defined by law and contract,
the worker shall be entitled to the unauthorized deductions
made to his salary with 12% interest per annum, plus his
salaries for the unexpired portion of his employment contract.
The law also provides that for purposes of recovering such
money claims, the principal shall be solidarily liable with the
agency involved.
Article 10 of Republic Act 8042 or the Migrant Workers and
Overseas Filipinos Act of 1995 provides:
SEC. 10. MONEY CLAIMS. Notwithstanding any provision of law
to the contrary, the Labor Arbiters of the National Labor Relations
Commission (NLRC) shall have the original and exclusive
jurisdiction to hear and decide, within ninety (90) calendar days
after filing of the complaint, the claims arising out of an employer-
employee relationship or by virtue of any law or contract involving
Filipino workers for overseas deployment including claims for
actual, moral, exemplary and other forms of damages.
1
G.R. No. 167614, March 24, 2009
Answer to the Appeal with Motion to Dismiss Page 4 of 8
The liability of the principal/employer and the
recruitment/placement agency for any and all claims under this
section shall be joint and several. This provision shall be
incorporated in the contract for overseas employment and shall be
a condition precedent for its approval. The performance bond to be
filed by the recruitment/placement agency, as provided by law,
shall be answerable for all money claims or damages that may be
awarded to the workers. If the recruitment/placement agency is a
juridical being, the corporate officers and directors and partners
as the case may be, shall themselves be jointly and solidarily
liable with the corporation or partnership for the aforesaid claims
and damages.
Such liabilities shall continue during the entire period or
duration of the employment contract and shall not be affected by
any substitution, amendment or modification made locally or in a
foreign country of the said contract.
Further, before complainant-appellee was deployed she
signed employment contract which was approved by the
Philippine Overseas Employment Administration. This contract
provides among others that she will receive 400USD.
Clearly, in the Complainant-appellee’s employment contract
it provides that:
…
Voluntary binding themselves to the following terms and condition
...
15.c.The employer shall not deduct any amount from the
regular salary of the household service worker other than
compulsory contribution prescribed by law…
Further, salary deductions are allowed by law when the
amount is reasonable or within the amount of prescribed fees.
Deduction beyond these expenses would result to illegal
deduction. Such as in this case, complainant did not receive her
salaries because she was told that it will be given to the foreign
agency to defray its expenses in connection to her employment.
Furthermore, the dismissal of complainant-appellee was
accompanied by bad faith because, the foreign broker instead of
aiding the OFW, it required her to buy her own ticket or she she
remain in Singapore and wait for another employer.
Complainant-appellee’s employment did not turn out well but
the foreign agency added to her misery in compelling the
complainant-appellee to purchase her own ticket.
Moreover, complainant-appellee’s immediate dismissal was
due to her employer’s will.
Answer to the Appeal with Motion to Dismiss Page 5 of 8
Finally, in accordance with law, herein respondents-
appellants are liable to pay for the salary corresponding to the
unexpired portion of her contract, unpaid salaries and attorney’s
fees.
By way of Motion to Dismiss
Respondent-appellants served complainant-appellee her
copy of the Appeal Memorandum. This is clear violation of Rule
VI, Section 6 of the 2011 NLRC Rules of Procedure which states
that:
…an appeal by the employer may be perfected only upon posting
of a bond, which shall either be in the form of cash deposit or
surety bond equivalent in the amount of monetary award,
exclusive of damages and attorney’s fees…
Moreover, Section 4 of Rule VI of the 2011 NLRC Rules of
Procedure provides:
SECTION 4. REQUISITES FOR PERFECTION OF APPEAL. - a) The
appeal shall be:
…
(5) accompanied by:
i) proof of payment of the required appeal fee and legal
research fee;
ii) posting of a cash or surety bond as provided in
Section 6 of this Rule; and
iii) proof of service upon the other parties.
b) A mere notice of appeal without complying with the other
requisites aforestated shall not stop the running of the
period for perfecting an appeal.
…
Further, in the case of BPI Family Savings Bank Inc vs.
Pryce Gases, Inc2, the Honorable Supreme Court ruled that:
… the Court finds it necessary to emphasize the well-entrenched
doctrine that an appeal is not a matter of right, but is a mere
statutory privilege. It may be availed of only in the manner
provided by law and the rules. Thus, a party who seeks to
exercise the right to appeal must comply with the requirements of
the rules; otherwise, the privilege is lost.
2 G.R. No. 188365, 29 June 2011
Answer to the Appeal with Motion to Dismiss Page 6 of 8
For in the case of Hilario S. Ramirez vs. Hon. Court of
Appeals3, the Honorable Supreme Court has repeatedly
emphasized that the requirement for posting a surety bond is not
procedural but jurisdictional and cannot be trifled with. Non-
compliance with such legal requirement is fatal and has effect of
rendering the judgment final and executory.
In this instant case, respondents-appellants posted partial
cash bond in the amount of Php 100,000.00 and a motion to
reduce the required cash bond alleging among others that it is
suffering from financial difficulties and that the amount posted
was reasonable.
Complainant-appellee respectfully objects to the reduction
of cash bond. Firstly, the bond required is either in cash or
surety bond, respondents-appellants is indeed has no available
fund to post cash, they are allowed by the Rules to post Surety
Bond instead. Secondly, respondents-appellants did not offer
new evidence rather their pleading is the same as that of what
was presented in their earlier pleadings. Lastly, the amount
posted was not reasonable amount because it did not post at
least half of USD 8,560.00 or Php 445,120.00.
Considering the above premises, their appeal was not
perfected thus the decision of the Honorable Labor Arbiter
became final and executory.
PRAYER
WHEREFORE, in view of the foregoing facts, it is most
respectfully prayed that this instant appeal be dismissed and an
order be issued to require respondents-appellants to pay the
judgment award due to complainant-appellee. Moreover,
respondent-appellants failed to perfect as prescribed by the
NLRC Rules of Procedures.
Finally, complainant-appellee prays for other just and
equitable relief.
Tubao for City of San Fernando, La Union, October 18,
2019.
3 G.R. No. 182626, December 4, 2009
Answer to the Appeal with Motion to Dismiss Page 7 of 8
DIANA C. DULAY
Counsel for the Complainant
Roll of Attorney 68085; 05-26-17
PTR 2308424; 01-03-18
IBP Membership 1068497; 01-03-18
MCLE Compliance VI No 0007251; 04-11-2018
Poblacion, Tubao, La Union
0916-652-5569
Copy Furnished: by Registered Mail for distance and lack of
personnel.
Atty. STEPHEN J. YANSON
Bukwang Prime International Agency
4th Floor, Queen Rose Building
911 San Andres cor Leon Guinto St
Malate, Manila
Answer to the Appeal with Motion to Dismiss Page 8 of 8
