DATEM INCORPORATED, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION, LABOR ARBITER JOEL S. LUSTRIA AND JESSIE S. OGBAC, RESPONDENTS.

Assailed in the instant petition filed under Rule 65 of the 1997 Rules of Civil Procedure are the following:

a) The NLRC (Fifth Division) Resolution (Rollo, pp. 47-50) dated April 25, 2012 which Denied the appeal of petitioner;

b) The Resolution (Rollo, pp. 63-65) dated May 31, 2012 which denied petitioner’s motion for reconsideration likewise issued by public respondent NLRC (Fifth Division) in NLRC NCR-00-08-1287811; NLRC LAC-04-001188-12.

The facts:

The case for illegal dismissal, underpayment-ecola, non-payment of separation pay and attorney’s fees arose from herein private respondent Jessie S. Ogbac’s complaint against herein petitioner, Datem Inc., a company engaged in the construction business.

Private respondent alleged that he was hired on July 13, 2007 as a mason and was allegedly dismissed on August 18, 2011 without a valid cause by petitioner company’s president, Arch. Lesley P. Espiritu. Private respondent rendered continuous service for more than four (4) years with a daily wage of P450.00 and working hours from Monday to Saturday 7:00 a.m. to 4:00 p.m. From the time that private respondent was hired, he was not informed that at a certain time, his services will be discontinued. He was asked to sign a three (3) month Employment Contract and several more employment contracts even if it was for one and the same project. Due to his refusal to sign a resignation letter forced upon him, he was told that his services were no longer needed by the company.

Meanwhile, petitioner averred that private respondent was hired for a specific project only and he is notified whenever there is a temporary lay off after every project completion. They also filed a Notice of Termination at the nearest DOLE office to comply with the requirements of Policy Instruction No. 20 and Department Order No. 19, series of 1993. Petitioner alleged that private respondent got a wrong impression regarding his entitlement to a separation pay after his temporary lay off every project completion. Private respondent was not aware that he is a project employee, meaning his job is co-terminous to every project completion.

Petitioner further declared that private respondent did not report for work on August 16 and 18 without a valid leave of absence. On August 19, 2011, private respondent reported back for work and asked for a lay-off paper from the time keeper, Mr. Abraham Carpena. However, private respondent was not issued with such since his services are still needed for the project yet to be completed. Private respondent then discontinued to report for work and filed the instant complaint since he believes that he is a regular employee of petitioner and was dismissed without a valid reason.

On February 27, 2012, Labor Arbiter Joel S. Lustria ruled in favor of private respondent ruling that the latter was a regular employee and there was illegal dismissal for failure of petitioner to observe due process of law. The dispositive portion of the said decision reads:

“WHEREFORE, premises considered, judgment is hereby rendered, declaring respondents guilty of illegal dismissal. Accordingly, respondents are ordered jointly and severally liable:

1) To pay complainant the amount of P76,711.95, representing his backwages, computed only up to the promulgation of this decision;

2) To pay complainant the amount of P55,380.00, representing his separation pay;

3) To pay complainant the amount of P1,088.10, representing his underpayment of wages;

4) To pay complainant an amount equivalent to ten (10%) percent of the total judgment award, as and for attorney’s fees.

Other claims are dismissed for lack of merit.

SO ORDERED.” (Rollo, p. 29)

On April 10, 2012, petitioner filed an appeal before the public respondent National Labor Relations Commission (NLRC) together with the Motion to Reduce the Bond. Petitioner deposited with the NLRC a partial cash bond in the amount of Thirty Thousand (P30,000.00) Pesos.

For failure of the petitioner to post a reasonable amount of bond, the NLRC issued the appealed Resolution dated April 25, 2012, the dispositive portion of which states:

“WHEREFORE, premises considered, the Motion to Reduce Bond is hereby DENIED and the appeal of respondent is DISMISSED for non-perfection.

SO ORDERED.” (Rollo, p. 50)

A Motion for Reconsideration was filed on May 14, 2012 of the decision of the public respondent NLRC. However, said Motion was denied on May 31, 2012. Hence, this appeal before Us with the following issues:

I.

PUBLIC RESPONDENT COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN DISMISSING THE APPEAL ON PURE TECHNICAL GROUND INSTEAD OF REQUIRING THE PETITIONER TO POST ADDITIONAL AMOUNT OF BOND AND RESOLVE THE CASE BASED ON ITS MERIT IN THE INTEREST OF JUSTICE AND FAIR PLAY.

II.
PUBLIC RESPONDENT LABOR ARBITER ACTED WITHOUT AND IN EXCESS OF JURISDICTION IN DECLARING PRIVATE RESPONDENTS AS REGULAR EMPLOYEE DESPITE THE CLEAR PROVISION OF ART.280 OF THE LABOR CODE AND POLICY INSTRUCTION NO.20 OF THE DEPARTMENT OF LABOR AND EMPLOYMENT AND DEPARTMENT ORDER NO.19 SERIES OF 1993 AND IN DISREGARDING THE EXISTING JURISPRUDENCE ON MATTER IN ISSUE.

In a special civil action for certiorari, the petitioner carries the burden of proving not merely reversible error, but grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the public respondent for its issuance of the impugned decision. (Suliguin v. Commission on Elections, 485 SCRA 219, 233 [2006]) The term grave abuse of discretion, in its juridical sense, connotes capricious, despotic, oppressive or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse must be of such degree as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary and capricious manner by reason of passion and hostility. The word capricious, usually used in tandem with the term arbitrary, conveys the notion of willful and unreasoning action. Thus, when seeking the corrective hand of certiorari, a clear showing of caprice and arbitrariness in the exercise of discretion is imperative. (Torres v. Abundo, Sr., 512 SCRA 564, 565 [2007] )

Applying the foregoing criterion in the case at bench, this court finds no grave abuse of discretion committed by the public respondent.

Petitioner contends that the NLRC erred when it dismissed the appeal when they were not able to post a bond equivalent to the monetary award of the labor arbiter. Petitioner claims that the posting of a partial appeal bond was justified by their allegation that it was due to financial reason since petitioner is just a small construction company whose income is derived from the projects it is able to contract. Its income is still unexpected and unrealized until full completion of the projects. Hence, the filing of a reduce bond in the amount of P30,000.00 is a reasonable amount in relation to the monetary award of P133,179.65 as required by Section 6, Rule VI of the 2011 Revised Rules of Procedure of the NLRC. (Rollo, p. 9)

The NLRC has full discretion to grant or deny the motion to reduce bond. (McBurnie v. Ganzon, 600 SCRA 658, 671 [2009]) Hence, at the time of the filing of the motion to reduce bond and posting of a bond in a reasonable amount, there is no assurance whether petitioner’s motion is indeed based on “meritorious ground” and whether the bond it posted is of a “reasonable amount.” Petitioner runs the risk of failing to perfect an appeal in not posting the required bond.

The right to appeal is not a natural right. It is also not part of due process. It is merely a statutory privilege and may be exercised only in the manner and in accordance with the provisions of law. Thus, one who seeks to avail of the right to appeal must comply with the requirements of the Rules. Failure to do so often leads to the loss of the right to appeal. (Neypes v. Court of Appeals, 506 Phil. 613, 621 [2005])

Article 223 of the Labor Code provides for the procedure in case of appeal to the NLRC:

“Art. 223. Appeal. — Decisions, awards, or orders of the Labor Arbiter are final and executory unless appealed to the Commission by any or both parties within ten (10) calendar days from receipt of such decisions, awards, or orders. Such appeal may be entertained only on any of the following grounds:

1. If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter;
2. If the decision, order or award was secured through fraud or coercion, including graft and corruption;
3. If made purely on questions of law; and
4. If serious errors in the finding of facts are raised which would cause grave or irreparable damage or injury to the appellant.

In case of a judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from.” (Emphasis Supplied)

Also, Section 6 of Rule VI of the New Rules of Procedure of the NLRC, as amended, supports the jurisdictional principle of filing of an appeal bond in Article 223 even as it allows in justifiable cases the reduction thereof. The relevant provision states:

“SECTION 6. BOND. — In case the decision of the Labor Arbiter or the Regional Director involves a monetary award, an appeal by the employer may be perfected only upon the posting of a bond, which shall either be in the form of cash deposit or surety bond equivalent in amount to the monetary award, exclusive of damages and attorney’s fees.

xxx xxx xxx
No motion to reduce bond shall be entertained except on meritorious grounds, and only upon the posting of a bond in a reasonable amount in relation to the monetary award.

The mere filing of a motion to reduce bond without complying with the requisites in the preceding paragraphs shall not stop the running of the period to perfect an appeal.” (Emphasis Supplied)

In Nicol v. Footjoy Industrial Corporation, (528 SCRA 300 [2007]) the Supreme Court reviewed the jurisprudence respecting the bond requirement for perfecting appeal and summarized the guidelines under which the NLRC must exercise its discretion in considering an appellant’s motion for reduction of bond, viz.:

“[T]he bond requirement on appeals involving monetary awards has been and may be relaxed in meritorious cases. These cases include instances in which (1) there was substantial compliance with the Rules, (2) surrounding facts and circumstances constitute meritorious grounds to reduce the bond, (3) a liberal interpretation of the requirement of an appeal bond would serve the desired 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.

Conversely the reduction of the bond is not warranted when no meritorious ground is shown to justify the same; the appellant absolutely failed to comply with the requirement of posting a bond, even if partial; or when the circumstances show the employer’s unwillingness to ensure the satisfaction of its workers’ valid claims.” (528 SCRA 300,318 [2007])

In the case at bench, petitioner posted an inadequate appeal bond, as it was not equivalent to the monetary award of the Labor Arbiter. In addition, petitioner did not even come near to substantially complying with the requirements of Art. 223 of the Labor Code and NLRC Rule of Procedure when they merely alleged that the company is incapable of raising the amount of the bond. The NLRC justifiably denied the motion to reduce bond, as it had no basis upon which it could actually and completely determine petitioner’s motion to reduce bond. Petitioner did not present any proof or documents such as financial statements of the corporation, cash flows and books of accounting to prove that the company is incapable of raising the amount of the bond or its sources of income. Thus, without proof that petitioner is incapable of raising the amount of the bond, the NLRC did not err when it declared the appeal of the petitioner to be non-perfected.

Moreover, in Colby Construction and Management Corporation v. National Labor Relations Commission (539 SCRA 159 [2007]), the Supreme Court held that an employer who files a motion to reduce the appeal bond is still required to post the full amount of cash or surety bond within the ten-day reglementary period, even pending resolution of his motion.

In addition, the allegation of petitioner that it manifested its willingness to post an additional amount if required by the NLRC is of no moment. The scheme of filing a bond on a staggered basis cannot be countenance since it would extend the period to appeal which is limited by law to ten (10) days from receipt of the decision.

Petitioner urges a liberal interpretation of Article 223 of the Labor Code to give way for the resolution of the case on its merits. However, the desired leniency cannot be accorded absent valid and compelling reasons for not complying with the law. It must be stressed that Article 223, which prescribes the appeal bond requirement, is a rule of jurisdiction and not of procedure. The filing of a bond is intended to assure the workers that if they prevail in the case, they will receive the money judgment in their favor upon the dismissal of the employer’s appeal. It is intended to discourage employers from using an appeal to delay or evade their obligation to satisfy their employees’ just and lawful claims. (Accessories Specialist, Inc. v. Alabanza, 559 SCRA 550 [2008]) There is little leeway for condoning a liberal interpretation thereof, and certainly none premised on the ground that its requirements are mere technicalities. It must be emphasized that there is no inherent right to an appeal in a labor case, as it arises solely from grant of statute, namely, the Labor Code. (Computer Innovations Center v. National Labor Relations Commission, 462 SCRA 193 [2005])

WHEREFORE, in view of the foregoing, the petition is hereby DISMISSED. The NLRC (Fifth Division) Resolution dated April 25, 2012 which denied the appeal of petitioner and Resolution dated May 31, 2012 which denied petitioner’s motion for reconsideration likewise issued by public respondent NLRC (Fifth Division) in NLRC NCR-00-08-1287811; NLRC LAC-04-001188-12 are AFFIRMED.

SO ORDERED.

Lopez, M.V., and Inting, S.B., JJ., concur.