REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT

NATIONAL LABOR RELATIONS COMMISSION
QUEZON CITY

FOURTH DIVISION

JOHN ALBERT LUANSING,

Complainant,

-versus- NLRC LAC NO. 07-002695-19

RAB CASE NO. RAB IV 7-01352-18-C

AMERICAN POWER
CONVERSION BY SCHNEIDER
ELECTRIC, AND/OR NIKHIL
PATHAK,
Respondents.
x--------------------------------------------------------------------------------x

VERIFIED MOTION FOR RECONSIDERATION

(Re: Decision dated October 30, 2019)

Complainant JOHN ALBERT ANTONELLO D.

LUANSING, respectfully moves this Honorable Commission for a
reconsideration of its Decision dated October 30, 2019, a copy of
which was received on February 21, 2020, upon the following
consideration and further states that:

1. On October 30, 2019, the Honorable Commission issued

the assailed Decision granting respondents’ Partial Appeal dated June
14, 2019 and reversing the Labor Arbiter’s Decision dated April 30,
2019. The dispositive portion of the said Decision reads as follows:

WHEREFORE, premises considered, the Partial

Appeal dated 14 June 2019 is GRANTED. The
assailed Decision dated 30 April 2019 is
REVERSED and SET ASIDE.

There is no illegal dismissal to speak of.

The Complaint dated 26 July 2018 is

DISMISSED for lack of merit, AS IT SHOULD
BE.

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 SO ORDERED. x x x

2. In the said Decision, the Honorable Commission ruled that

(a) Respondents both complied with the substantive process and
procedural due process in order to justify the dismissal of the
Complainant, and (b) the Complainant’s act constitutes as serious
misconduct which is a just cause for the termination of his
employment. Thus, the deletion of damages.

3. With all due respect to the Honorable Commission, it

seriously erred when it ruled that there was no illegal dismissal
committed against herein Complainant.

GROUNDS AND ARGUMENTS

THE HONORABLE
COMMISSION SERIOUSLY
ERRED IN FINDING THAT
THE COMPLAINANT
COMMITTED A SERIOUS
MISCONDUCT THAT WOULD
WARRANT HIS DISMISSAL
FROM HIS EMPLOYMENT

4. In order to support its finding that the Complainant has

committed a serious misconduct which would warrant his dismissal
from his employment, the Honorable Commission held in this
manner:

We are convinced that the incident on 25 May 2018

took place in the midst of a company event and outing.
We are not persuaded by complainant-appellee’s
defense that the alleged gathering on the eve of the
Summer Outing on 25 May 2018 was not part of the
company event or outing. As employees of respondent-
appellant company, complainant-appelee and his fellow
co-workers were gathered there together and spent the
night at the same venue (Sheracon Hotel) for the
purpose of taking part in the Summer Outing. This is
clear in the narration of facts, testimonials of the
employees and reimbursement receipts/official receipts
in Our Records.1

5. Respondents cited in their position paper that the alleged

act of the Complainant constitutes as an offense and violation of Rule
2, Section 20 of their Company’s Code of Conduct that prohibits the
“carrying of firearms, bombs and other explosives, flammable or
1
Emphasis supplied.

2
harmful materials or weapons that poses a threat to the saftey and
well-being of the Company and its members within the Company
premises or facilities and other Company authorized events.”

6. As such, respondents have the burden of proving that the

alleged act was committed by the Complainant while he is in the
company premises or its any authorized events.

7. It is an age-old rule that the one who alleges a fact has the
burden of proving it and the proof should be clear, positive and
convincing.2 Mere allegation is not evidence.3

8. To reiterate, May 25, 2018 which is the date of the alleged

incident is not in any way an authorized event of the company which
the respondents failed to prove otherwise.

9. The Honorable Commission totally overlooked the fact that

even respondents have confused with themselves the correct date of
the alleged incident, and their desperate attempt of changing the
dates in their Notices to Explain just to comply with the requisites of
their Code of Conduct and to eventually find a way to illegally dismiss
the Complainant.

10. Worse, it failed to notice that the company even

acknowledged the fact that May 25, 2018 was the date when the
incident happen and not on May 26, 2018 as evidenced by the
Company’s second Notice to Explain dated June 25, 2018, 4 which
states that: “The date indicated in the Incident Report is referring to
the Official Summer Outing event.”

11. Despite these, the Commission erroneously made a finding

that there was no illegal dismissal in the present case albeit the
evidence are clear that there is indeed an illegal dismissal just
because it was convinced on the testimonies, which were not verified
in the first place, and documents which are inconsistent with the
other and inconsistent even the testimonies of the the persons
mentioned in respondents’ pleadings.

12. Even assuming that the incident took place in an

authorized event of the company, which it did not, Complainant did
not commit a serious misconduct which would justify his dismissal
from his employment.

13. Under Department Order No. 147-15, Serious Misconduct

can be a ground for a just cause of termination only when:
2
Machica v. Roosevelt Services Center, Inc. and/or Dizon,523 Phil. 199, 209-210 (2006).
3
General Milling Corporation – Independent Labor Union v. General Milling Corporation,
G.R. No. 183122, June 15, 2011, 652 SCRA 235, 258.
4
See Annex F of Complainant’s Position Paper.

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 (1) There is a misconduct;

(2) The misconduct must be of such grave and

aggravated character;

(3) It must relate to the performance of the

employee’s duty; and

(4) There must be showing that the employee

becomes unfit to continue working for the employer.

14. In the case of Colegio de San Juan de Letran-Calamba vs.

Tardeo, G.R. No. 190303, July 9, 2014, the Supreme Court expound
upon the concept of “Serious Misconduct” and held that:

Misconduct is defined as improper and

wrongful conduct. It is the transgression of
some established and definite rule of action, a
forbidden act, a dereliction of duty, willful in
character, and implies wrongful intent and not
mere error in judgment. Of course, ordinary
misconduct would not justify the termination of the
services of an employee. The law is explicit that the
misconduct should be serious. It is settled that in order
for misconduct to be serious, it must be of such grave
and aggravated character and not merely trivial or
unimportant. As amplified by jurisprudence, the
misconduct must (1) be serious; (2) relate to the
performance of the employee’s duties; and (3) show
that the employee has become unfit to continue
working for the employer.5

15. In simpler terms, serious misconduct must be

characterized by wrongful intent and should impair the employee’s
ability to render his services to the employer. The act must be so
severe as to show that the employee had ill motives.

16. Respondents miserably failed to discharge their burden of

proving that Complainant had ill motives and that he committed such
act. No any substantial evidence was submitted in support of their
claim but mere self-serving statements, hearsay and baseless claims.

17. In this case, it is clear that Complainant was never driven

with an ill or wrongful intent. The facts of the case show that he kept
his firearm in secured storage places in order to avoid ill-willed
individuals from obtaining it and also to avoid getting unwanted
attention from his colleagues.

5
Emphasis supplied.

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 18. The Honorable Commission likewise disregarded the fact
that Complainant has been receiving death threats prior to the
incident. Thus, there is a sufficient cause to carry his licensed firearm
with him.

19. Instead, the Honorable Commission found that the

Complainant should have informed the Company of the same without
challenging the capability of the Company to give full protection of its
employee from any harm or death threats that are personal to the
latter.

20. Attention must likewise be given to the fact that the alleged
act does not relate to the Complainant’s duties nor does it show that
he has become unfit to perform his function and continue working
for the employer. Practicing safety does not render him unfit to work
for the respondents.

21. Considering that the respondents’ allegation of serious

misconduct was not duly proven in the present case, there is no just
cause to terminate the employment of the Complainant. The
respondents are thus liable for illegal dismissal committed against
the Complainant.

THE ALLEGED ACT OF

SHOWING THE FIREARM
DURING THE ALLEGED
COMPANY-SPONSORED
EVENT WAS NOT DULY
ESTABLISHED

22. The Honorable Commission made an erroneous finding

that Complainant brought a firearm and showed it during the
company-sponsored event. In its Decision, the Honorable
Commission stated:

To Our mind, complainant-appellee’s acts of bringing

his firearm and needlessly showing it has no place in
any company-sponsored event or outing. His acts are
serious in nature and clearly shows that he has become
unfit to continue working for respondent-appellant
company.

23. FIRST. It was never proven that the May 25, 2018, when
the alleged incident happen, was the official date for the company’s
summer outing. Thus, as to whatever incident happened on even
date, the same was not during a company authorized event or activity.

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 24. SECOND. It was never established by sufficient and
admissible evidence that Complainant brought a firearm on a
company-sponsored event nor the allegation that he needlessly
showed it was proven.

25. THIRD. Assuming for the sake of argument that the

Complainant brought a firearm and showed the same to others, the
Honorable Commission failed to justify its finding that the same is so
serious and that how such act has affected Complainant’s fitness to
work for the respondents.

26. Also, even assuming that the written testimonies of the

employees of the respondent were true, which are NOT, their own
testimony will show that Complainant did not cause any harm nor
they were actually harmed by the acts of the Complainant.

27. Thus, these conclusions are all erroneous in all aspect as

these were devoid of any evidence on record.

28. Considering that the respondents had failed to establish

that there is a just cause to terminate the employment of
Complainant, they are hereby liable for ILLEGAL DISMISSAL and to
pay Complainant all his monetary claims.

THE HONORABLE
COMMISSION DISREGARDED
THE SATISFACTORY
EMPLOYMENT RECORD OF
THE COMPLAINANT WITH
THE RESPONDENTS

29. The length of service and the fact that an employee has a
clean record does not mean that he is licensed to violate the company
rules. However, such fact should attest to the good character of the
employee thereby determining whether or not he is fit to remain in
the company.

30. During his period of employment until the date of the

incident, Complainant kept his employment records clean and
maintain his status as an exemplary employee. His length of service
and clean records attest to the fact that he possesses a good character
which his position necessitates.

PRAYER

IN VIEW OF THE FOREGOING, it is respectfully prayed of

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this Honorable Commission that the Decision dated October 30, 2019
be RECONSIDERED and a resolution be issued AFFIRMING the
Labor Arbiter’s findings and Decision dated April 30, 2019.
Other reliefs that are just and equitable are likewise prayed for.

Las Piñas City for Quezon City, March 9, 2020.

By:

ATTY. VITTO DUART C. LOTERTE

IBP OR No. 063049/PPLM/01-03-2019
PTR No. 11657998-J/Las Piñas/01-03-2-19
MCLE No. VI- 0022677/2 April 2019
Roll No. 59362

Address: No. 6 G/F TSVJ building, Crispina Avenue

Las Piñas Village, Las Piñas City
[email protected]
Tel. No. 874-62-19

NOTICE OF HEARING AND COPY FURNISHED:

ATTY. JUAN PAOLO B. TUMBALI

Counsel for Respondents
8/F One Corporate Plaza,
845 Arnaiz Ave., Makati City

Greetings.

Please set the foregoing Motion for the consideration and

approval of the Honorable Commission immediately upon receipt
hereof.

Counsel

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 VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING

I, JOHN ALBERT ANTONELLO D. LUANSING, of legal age,

Filipino, married and with residential address at Lot 8, Block 8,
Lavanya Subdivision P3, Bacao, General Trias, Cavite, subscribing
under oath, hereby depose and state:

1. I am the complainant in the above-mentioned case;

2. I caused the preparation of the foregoing VERIFIED

MOTION FOR RECONSIDERATION;

3. I have read the same and all the statements contained

therein are true and correct of my own personal knowledge and belief
or based on authentic records;

4. I have not theretofore commenced any other action or filed

any claim involving the same issue raised in this case in any Court,
tribunals or quasi-judicial agencies, and that to the best of our
knowledge, no such action or claim is pending therein. However,
should I thereafter learn that the same or similar action or claim has
been filed or is pending with any Court, tribunal or quasi-judicial
agencies; I hereby undertake to promptly report the fact within five
(5) days therefrom to the Honorable Commission.

JOHN ALBERT ANTONELLO D. LUANSING

Complainant-Appellee

SUBSCRIBED AND SWORN TO before me this

______________ at _______________, affiant exhibiting to me
his __________________________ issued on ____________
at ______________________.

WITNESS MY HAND AND SEAL.

Doc No. _____;

Page No. _____;
Book No. _____;
Series of 2020