Turks Shawarma Company vs. Feliciano Z. Pajaron
G.R. No. 207156, January 16, 2017


Turks Shawarma and Zeñarosa hired Feliciano J. Pajaron as service crew and Larey A. Carbonilla (Carbonilla) as head crew. On April 15, 2010, Pajaron and Carbonilla filed their respective Complaints for constructive and actual illegal dismissal, non-payment of overtime pay, holiday pay, holiday premium, rest day premium, service incentive leave pay and 13th month pay against Turks Shawarma and Zeñarosa. Both Complaints were consolidated.

Pajaron alleged that Zeifarosa asked him to sign a piece of paper stating that he was receiving the correct amount of wages and that he had no claims whatsoever from Turks Shawarma and Zeñarosa. Disagreeing to the truthfulness of the statements, Pajaron refused to sign the paper prompting Zeñarosa to fire him from work.

Carbonilla, on the other hand, alleged that he had an altercation with his supervisor Conchita Marcillana (Marcillana) while at work. When the incident was brought to the attention of Zeñarosa, he was immediately dismissed from service. He was also asked by Zeñarosa to sign a piece of paper acknowledging his debt amounting to Both Pajaron and Carbonilla claimed that there was no just or authorized cause for their dismissal and that Turks Shawarma and Zeñarosa also failed to comply with the requirements of due process.

As such, they prayed for separation pay in lieu of reinstatement due to strained relations with Turks Shawarma and Zeñarosa and backwages as well as nominal, moral and exemplary damages.

Turks Shawarma and Zeñarosa denied having dismissed Pajaron and Carbonilla; they averred that they actually abandoned their work. They alleged that Pajaron would habitually absent himself from work for an unreasonable length of time without notice; and while they rehired him several times whenever he returned, they refused to rehire him this time after he abandoned work in April 2009. As for Carbonilla, he was reprimanded and admonished several times for misbehavior and disobedience of lawful orders and was advised that he could freely leave his work if he could not follow instructions. Unfortunately, he left his work without any reason and without settling his unpaid obligation in the amount of P78,900.00, which compelled them to file a criminal case for estafa against him.

In addition, criminal complaints for slander were filed against both Pajaron and Carbonilla for uttering defamatory words that allegedly compromised Zeñarosa’s reputation as a businessman. Turks Shawarma and Zeñarosa, thus, insisted that their refusal to rehire Pajaron and Carbonilla was for valid causes and did not amount to dismissal from employment. Finally, Turks Shawarma and Zeñarosa claimed that Pajaron and Carbonilla failed to substantiate their claims that they were not paid labor standards benefits.

LA Ruling:

the Labor Arbiter found credible Pajaron and Carbonilla’s version and held them constructively and illegally dismissed by Turks Shawarma and Zeñarosa. The Labor Arbiter found it suspicious for Turks Shawarma and Zeñarosa to file criminal cases against Pajaron and Carbonilla only after the complaints for illegal dismissal had been filed.

NLRC Ruling:

Due to alleged non-availability of counsel, Zeñarosa himself filed a Notice of Appeal with Memorandum and Motion to Reduce Bond with the NLRC. Along with this, Zeñarosa posted a partial cash bond in the amount of P15,000.00, maintaining that he cannot afford to post the full amount of the award since he is a mere backyard micro-entrepreneur.

He begged the NLRC to reduce the bond. The NLRC denied the motion to reduce bond. It ruled that financial difficulties may not be invoked as a valid ground to reduce bond; at any rate, it was not even substantiated by proof.

Moreover, the partial bond in the amount of P15,000.00 is not reasonable in relation to the award which totalled to P197,936.27. Turks Shawarma and Zeñarosa’ appeal was thus dismissed by the NLRC for non-perfection.

On April 7, 2011, Turks Shawarma and Zeñarosa, through a new counsel, filed a Motion for Reconsideration (with plea to give due course to the appeal) averring that the outright dismissal of their appeal was harsh and oppressive considering that they had substantially complied with the Rules through the posting of a partial bond and their willingness to post additional bond if necessary. Moreover, their motion to reduce bond was meritorious since payment of the full amount of the award will greatly affect the company’s operations; besides the appeal was filed by Zeñarosa without the assistance of a counsel. Turks Shawarma and Zeñarosa thus implored for a more liberal application of the Rules and prayed that their appeal be given due course. Along with this motion for reconsideration, Turks Shawarma and Zeñarosa tendered the sum of P207,435.53 representing the deficiency of the appeal bond.

The NLRC denied the Motion for Reconsideration, reiterating that the grounds for the reduction of the appeal bond are not meritorious and that the partial bond posted is not reasonable. The NLRC further held that the posting of the remaining balance on April 7, 2011 or three months and eight days from receipt of the Labor Arbiter’s Decision on December 30, 2010 cannot be allowed, otherwise, it will be tantamount to extending the period to appeal which is limited only to 10 days from receipt of the assailed Decision.

CA Ruling:

Turks Shawarma and Zeñarosa filed a Petition for Certiorari with application for Writ of Preliminary Injunction and Temporary Restraining Order with the CA.

They insisted that the NLRC gravely abused its discretion in dismissing the appeal for failure to post the required appeal bond.

The CA rendered a Decision dismissing the Petition for Certiorari. It held that the NLRC did not commit any grave abuse of discretion in dismissing Turks Shawarma and Zeñarosa’ appeal for because Turks Shawarma and Zeñarosa failed to comply with the requisites in filing a motion to reduce bond, namely, the presence of a meritorious ground and the posting of a reasonable amount of bond.

The CA stated that financial difficulties is not enough justification to dispense with the mandatory posting of a bond inasmuch as there is an option of posting a surety bond from a reputable bonding company duly accredited by the NLRC, which, unfortunately, Turks Shawarma and Zeñarosa failed to do. The CA noted that the lack of assistance of a counsel is not an excuse because Turks Shawarma and Zeñarosa ought to know the Rules in filing an appeal; moreover, ignorance of the law does not excuse them from compliance therewith.

Hence, the petition with SC.


Whether or not the appeal was perfected

Whether or not the posting of the bond deficiency constituted substantial compliance with the rules

Whether or not there was abandonment of work

SC Ruling:

The SC did not find merit in the petition.

The SC held that the CA correctly found that the NLRC did not commit grave abuse of discretion in denying motion to reduce bond as such motion was not predicated on meritorious and reasonable grounds and the amount tendered is not reasonable in relation to the award.

The NLRC correctly held that the supposed ground cited in the motion is not well-taken for there was no evidence to prove Zeñarosa’s claim that the payment of the full amount of the award would greatly affect his business due to financial setbacks.

Besides, “the law does not require outright payment of the total monetary award; the appellant has the option to post either a cash or surety bond. In the latter case, appellant must pay only a moderate and reasonable sum for the premium to ensure that the award will be eventually paid should the appeal fail.” Moreover, the absence of counsel is not a valid excuse for non-compliance with the rules.

As aptly observed by the CA, Zeñarosa cannot feign ignorance of the law considering that he was able to post a partial bond and ask for a reduction of the appeal bond. At any rate, Turks Shawarma and Zeñarosa did not advance any reason for the alleged absence of counsel except that they were simply abandoned. Neither did Turks Shawarma and Zeñarosa explain why they failed to procure a new counsel to properly assist them in filing the appeal.

Moreover, the partial bond posted was not reasonable. In the case of McBurnie v. Ganzon, the Court has set a provisional percentage of 10% of the monetary award (exclusive of damages and attorney’s fees) as reasonable amount of bond that an appellant should post pending resolution by the NLRC of a motion for a bond’s reduction.

Only after the posting of this required percentage shall an appellant’s period to perfect an appeal be suspended. Applying this parameter, the P15,000.00 partial bond posted by Turks Shawarma and Zeñarosa is not considered reasonable in relation to the total monetary award of P197,936.27.

The NLRC exercises full discretion in resolving a motion for the reduction of bond in accordance with the standards of meritorious grounds and reasonable amount. The “reduction of the bond is not a matter of right on the part of the movant [but] lies within the sound discretion of the NLRC.

While Turks Shawarma and Zeñarosa vehemently argue that Pajaron and Carbonilla abandoned their work, the records are devoid of evidence to show that there was intent on their part to forego their employment.

See also: How to Validly Dismiss Employees for Abandonment of Work (p. 156 of the book Guide to Valid Dismissal of Employees)

In fact, Turks Shawarma and Zeñarosa adamantly admitted that they refused to rehire Pajaron and Carbonilla despite persistent requests to admit them to work. Hence, Turks Shawarma and Zeñarosa essentially admitted the fact of dismissal.

However, except for their empty and general allegations that the dismissal was for just causes, Turks Shawarma and Zeñarosa did not proffer any evidence to support their claim of misconduct or misbehavior on the part of Pajaron and Carbonilla. “In termination cases, the burden of proof rests on the employer to show that the dismissal is for a just cause.” For lack of any clear, valid, and just cause in terminating Pajaron and Carbonilla’s employment, Turks Shawarma and Zeñarosa are indubitably guilty of illegal dismissal.


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