APPEAL TO NLRC-PROCEDURE

What are the requisites for perfection of appeal?

The appeal shall be: (1) filed within the reglementary period provided in Section 1 of the Rule; (2)
verified by the appellant himself/herself in accordance with Section 4, Rule 7 of the Rules of Court, as
amended; (3) in the form of a memorandum of appeal which shall state the grounds relied upon and
the arguments in support thereof, the relief prayed for, and with a statement of the date the appellant
received the appealed decision, award or order; (4) in three (3) legibly typewritten or printed copies;
and (5) accompanied by proof of payment of the required appeal fee and legal research fee, posting of
a cash or surety bond as provided in Section 6 of this Rule, and proof of service upon the other parties.

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Frequently Asked Questions (FAQs)

 What is the constitutional provision on protection to labor?

The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for
all. It shall guarantee the rights of all workers to self-organization, collective bargaining
and negotiations, and peaceful concerted activities, including the right to strike in
accordance with law. They shall be entitled to security of tenure, humane conditions of
work, and a living wage. They shall also participate in policy and decision-making
processes affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and
employers and the preferential use of voluntary modes in settling disputes, including
conciliation, and shall enforce their mutual compliance therewith to foster industrial
peace.

The State shall regulate the relations between workers and employers, recognizing the
right of labor to its just share in the fruits of production and the right of enterprises to
reasonable returns on investments, and to expansion and growth.

What rules govern the proceedings before the Labor Arbiters and the NLRC?
 The proceedings before the Labor Arbiters and the NLRC are governed by the Labor
Code, as amended, the 2011 NLRC Rules of Procedure, and suppletorily, the Rules of
Court.

What is the nature of the proceedings before the Labor Arbiter?

The NLRC Rules describe the proceedings before the Labor Arbiter as non-litigious.
Subject to the requirements of due process, the technicalities of law and procedure in
the regular courts do not apply in the labor arbitration proceedings.

What are the cases falling under the jurisdiction of the Labor Arbiters?

Under Article 217 of the Labor Code, Labor Arbiters have jurisdiction over the following
cases:

1. Unfair labor practice (ULP) cases;

2. Termination disputes (or illegal dismissal cases);

3. If accompanied with a claim for reinstatement, those cases that workers may file
involving wages, rates of pay, hours of work and other terms and conditions of
employment;

4. Claims for actual, moral, exemplary and other forms of damages arising from
employer-employee relations;

5. Cases arising from any violation of Article 264 of the Labor Code, including questions
involving the legality of strikes and lockouts;

6. Except claims for employees compensation not included in the next succeeding
paragraph, social security, medicare and maternity benefits, all other claims arising from
employer-employee relations, including those of persons in domestic or household
service, involving an amount exceeding Five Thousand Pesos (P5,000.00), whether or
not accompanied with a claim for reinstatement;

7. Wage distortion disputes in unorganized establishments not voluntarily settled by the

parties pursuant to Republic Act No. 6627;

8. Enforcement of compromise agreements when there is non-compliance by any of the

parties pursuant to Article 227 of the Labor Code, as amended;

9. Money claims arising out of employer-employee relationship or by virtue of any law

or contract, involving Filipino workers for overseas employment, including claims for
actual, moral, exemplary and other forms of damages as provided by Section 10 of R.A.
No. 8042, as amended by R.A. No. 10022;

10.Contested cases under the exception clause of Article 128(b) of the Labor Code, as
amended by R.A. 7730; and

11.Other cases as may be provided by law.

 May a non-lawyer appear in any of the proceedings before the Labor Arbiter or
Commission?

Yes. A non-lawyer may appear in any of the proceedings before the Labor Arbiter or
Commission only under the following conditions:

1. he/she represents himself/herself as party to the case;

2. he/she represents a legitimate labor organization, as defined under Article 212 and
242 of the Labor Code, as amended, which is a party to the case: Provided, that he/she
presents to the Commission or Labor Arbiter during the mandatory conference or initial
hearing: (i) a certification from the Bureau of Labor Relations (BLR) or Regional Office of
the Department of Labor and Employment attesting that the organization he/she
represents is duly registered and listed in the roster of legitimate labor organizations; (ii)
a verified certification issued by the secretary and attested to by the president of the said
organization stating that he/she is authorized to represent the said organization in the
said case; and (iii) a copy of the resolution of the board of directors of the said
organization granting him such authority;

3. he/she represents a member or members of a legitimate labor organization that is

existing within the employers establishment, who are parties to the case: Provided, that
he/she presents: (i) a verified certification attesting that he/she is authorized by such
member or members to represent them in the case; and (ii) a verified certification issued
by the secretary and attested to by the president of the said organization stating that the
person or persons he/she is representing are members of their organization which is
existing in the employers establishment;
 4. he/she is a duly-accredited member of any legal aid office recognized by the
Department of Justice or Integrated Bar of the Philippines: Provided, that he/she (i)
presents proof of his/her accreditation; and (ii) represents a party to the case;

5. he/she is the owner or president of a corporation or establishment which is a party

to the case: Provided, that he/she presents: (i) a verified certification attesting that
he/she is authorized to represent said corporation or establishment; and (ii) a copy of
the resolution of the board of directors of said corporation, or other similar resolution or
instrument issued by said establishment, granting him/her such authority.

Does the counsel or authorized representatives have the authority to bind their
clients?

Yes. Counsel or other authorized representatives of parties shall have authority to bind
their clients in all matter of procedure. However, they cannot, without a special power of
attorney or express consent, enter into a compromise agreement with the opposing party
in full or partial discharge of a clients claim.

What is the purpose of mandatory conciliation and mediation conference?

The mandatory conciliation and mediation conference shall be called for the purpose of
(1) amicably settling the case upon a fair compromise; (2) determining the real parties in
interest; (3) determining the necessity of amending the complaint and including all
 causes of action; (4) defining and simplifying the issues in the case; (5) entering into
admissions or stipulations of facts; and (6) threshing out all other preliminary matters.

What is the effect of non-appearance of the parties in the mandatory conciliation

and mediation conference?

The non-appearance of the complainant or petitioner during the two (2) settings for
mandatory conciliation and mediation conference scheduled in the summons, despite due
notice thereof, shall be a ground for the dismissal of the case without prejudice.

In case of non-appearance by the respondent during the first scheduled conference, the
second conference as scheduled in the summons shall proceed. If the respondent still
fails to appear at the second conference despite being duly served with summons,
he/she shall be considered to have waived his/her right to file position paper. The Labor
Arbiter shall immediately terminate the mandatory conciliation and mediation conference
and direct the complainant or petitioner to file a verified position paper and submit
evidence in support of his/her causes of action and thereupon render his/her decision on
the basis of the evidence on record.

What is the role of the Labor Arbiter in hearing and clarificatory conference?
 The Labor Arbiter shall take full control and personally conduct the hearing or
clarificatory conference and may ask questions for the purpose of clarifying points of law
or facts involved in the case. The Labor Arbiter may allow the presentation of testimonial
evidence with right of cross-examination by the opposing party and shall limit the
presentation of evidence to matters relevant to the issue before him/her and necessary
for a just and speedy disposition of the case.

The Labor Arbiter shall make a written summary of the proceedings, including the
substance of the evidence presented, in consultation with the parties. The written
summary shall be signed by the parties and shall form part of the records.

What is the period within which to conduct clarificatory conference?

The parties and their counsels appearing before the Labor Arbiter shall be prepared for
continuous hearing or clarificatory conference. No postponement or continuance shall be
allowed by the Labor Arbiter, except upon meritorious grounds and subject to the
requirement of expeditious disposition of cases. The hearing or clarificatory conference
shall be terminated within thirty (30) calendar days from the date of the initial
clarificatory conference. In cases involving overseas Filipino workers, the aggregate
period for conducting the mandatory conciliation and mediation conference, including
hearing on the merits or clarificatory conference, shall not exceed sixty (60) days, which
will be reckoned from the date of acquisition of jurisdiction by the Labor Arbiter over the
person of the respondents.

What is the effect of non-appearance of the parties during clarificatory conference?

 In case of non-appearance of any of the parties during the hearing or clarificatory
conference despite due notice, proceedings shall be conducted ex parte. Thereafter, the
case shall be deemed submitted for decision.

What is the period within which to file a motion for postponement?

No motion for postponement shall be entertained except on meritorious grounds and

when filed at least three (3) days before the scheduled hearing.

1. What is the period within which to cause an amendment of the complaint or

petition?

No amendment of the complaint or petition shall be allowed after the filing of position
papers, unless with leave of the Labor Arbiter.

What are the prohibited pleadings and motions?

 The following pleadings and motions shall not be allowed and acted upon nor elevated to
the Commission: (a) Motion to dismiss the complaint except on the ground of lack of
jurisdiction over the subject matter, improper venue, res judicata, prescription and forum
shopping; (b) Motion for a bill of particulars; (c) Motion for new trial; (d) Petition for
Relief from Judgment; (e) Motion to declare respondent in default; (f) Motion for
reconsideration of any decision or any order of the Labor Arbiter; (g) Appeal from any
interlocutory order of the Labor Arbiter, such as but not limited to, an order: denying a
motion to dismiss, denying a motion to inhibit; denying a motion for issuance of writ of
execution, or denying a motion to quash writ of execution; (h) Appeal from the issuance
of a certificate of finality of decision by the Labor Arbiter; (i) Appeal from orders issued
by the Labor Arbiter in the course of execution proceedings; and (j) Such other
pleadings, motions and petitions of similar nature intended to circumvent above
provisions.

May the Commission blacklist bonding companies?

Yes. The Commission through the Chairman may on justifiable grounds blacklist a
bonding company, notwithstanding its accreditation by the Supreme Court. Upon
verification by the Commission that the bond is irregular or not genuine, the Commission
shall cause the immediate dismissal of the appeal, and censure the responsible parties
and their counsels, or subject them to reasonable fine or penalty, and the bonding
company may be blacklisted.

May a party file a motion to revive and re-open a case dismissed without prejudice?
 Yes. A party may file a motion to revive or re-open a case dismissed without prejudice,
within ten (10) calendar days from receipt of notice of the order dismissing the same;
otherwise, the only remedy shall be to re-file the case. A party declared to have waived
his/her right to file position paper may, at any time after notice thereof and before the
case is submitted for decision, file a motion under oath to set aside the order of waiver
upon proper showing that his/her failure to appear was due to justifiable and meritorious
grounds.

What is the effect of rehabilitation receivership on monetary claims of workers?

Rehabilitation receivership of a company has the effect of suspending all proceedings

at whatever stage it may be found - in all judicial or quasi-judicial bodies. The NLRC may
not proceed with hearing of monetary claims. If already decided, the monetary awards
cannot be executed. If due for execution, no such execution may be had. Only when
there is liquidation that the monetary claims may be asserted. The suspension of the
proceedings is necessary to enable the rehabilitation receiver to effectively exercise its
powers free from any judicial or extra-judicial interference that might unduly hinder the
rescue of the distressed company. Once the receivership proceedings have ceased and
the receiver/liquidator is given the imprimatur to proceed with corporate liquidation, the
SEC order becomes functus officio. Thus, there is no legal impediment for the execution
of the decision of the Labor Arbiter for the payment of separation pay by presenting it
with the rehabilitation receiver and liquidator, subject to the rules on preference of
credits.

What are the two kinds of jurisdiction of the NLRC?

The National Labor Relations Commission exercises two (2) kinds of jurisdiction:
(1) Original jurisdiction; and (2) Exclusive appellate jurisdiction.

1. Original jurisdiction:

1. Injunction in ordinary labor disputes to enjoin or restrain any actual or threatened commission
of any or all prohibited or unlawful acts or to require the performance of a particular act in any
labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable
damage to any party;
2. Injunction in strikes or lockouts under Article 264 of the Labor Code; and
3. Certified labor disputes causing or likely to cause a strike or lockout in an industry
indispensable to the national interest, certified to it by the Secretary of Labor and Employment for
compulsory arbitration.

2. Exclusive appellate jurisdiction:

1. All cases decided by the Labor Arbiters including contempt cases; and
2. Cases decided by the DOLE Regional Directors or his duly authorized Hearing Officers (under
Article 129) involving recovery of wages, simple money claims and other benefits not exceeding
P5,000 and not accompanied by claim for reinstatement.
 What is the power to assume jurisdiction or certify national interest labor
disputes to NLRC?

When, in his opinion, there exists a labor dispute causing or likely to cause a strike or
lockout in an industry indispensable to the national interest, the Secretary of Labor and
Employment may assume jurisdiction over the dispute and decide it or certify the same
to the Commission for compulsory arbitration.

In case of conflict, who has jurisdiction over termination disputes, Labor Arbiter or
Voluntary Arbitrator?

Jurisdiction over termination disputes belongs to Labor Arbiters and not with the
grievance machinery or Voluntary Arbitrator. Under Article 262, the Voluntary Arbitrator
may assume jurisdiction only when agreed upon by the parties. Policy Instructions No.
56 issued by DOLE Secretary Confesor clarifying the jurisdiction of Labor Arbiters and
Voluntary Arbitrations does not apply. It reiterated the ruling that dismissal is not a
grievable issue.

What is the mode of appeal from the decision of the Labor Arbiters?

Appeal from the decision of the Labor Arbiter is brought by ordinary appeal to the NLRC
within ten (10) calendar days from receipt by the party of the decision. From the decision
 of the NLRC, there is no appeal. The only way to elevate the case to the Court of Appeals
is by way of the special civil action of certiorari under Rule 65 of the Rules of Civil
Procedure. From the ruling of the Court of the Appeals, it may be elevated to the
Supreme Court by way of ordinary appeal under Rule 45 of the Rules of Civil Procedure.

What are the grounds for appeal?

There are four (4) grounds, to wit:

(a) If there is prima facie evidence of abuse of discretion on the part of the Labor
Arbiter;

(b) If the decision, order or award was secured through fraud or coercion, including
graft and corruption;

(c) If made purely on questions of law; and

(d) If serious errors in the findings of facts are raised which would cause grave or
irreparable damage or injury to the appellant.
 What are the requisites for perfection of appeal?

The appeal shall be: (1) filed within the reglementary period provided in Section 1 of the
Rule; (2) verified by the appellant himself/herself in accordance with Section 4, Rule 7 of
the Rules of Court, as amended; (3) in the form of a memorandum of appeal which shall
state the grounds relied upon and the arguments in support thereof, the relief prayed
for, and with a statement of the date the appellant received the appealed decision,
award or order; (4) in three (3) legibly typewritten or printed copies; and (5)
accompanied by proof of payment of the required appeal fee and legal research fee,
posting of a cash or surety bond as provided in Section 6 of this Rule, and proof of
service upon the other parties.

What is the reinstatement aspect of the Labor Arbiters decision?

If reinstatement is ordered by the Labor Arbiter in an illegal dismissal case, it

is immediately executory even pending appeal. Such award does not require a writ of
execution.

Is posting a bond stay the execution of immediate reinstatement?

 No. The posting of a bond by the employer does not have the effect of staying the
execution of the reinstatement aspect of the decision of the Labor Arbiter.

Can the Labor Arbiter issue a partial writ pending appeal?

Yes. In case the decision includes an order of reinstatement and the employer disobeys it
or refuses to reinstate the dismissed employee, the Labor Arbiter should immediately
issue a writ of execution, even pending appeal, directing the employer to immediately
reinstate the dismissed employee either physically or in the payroll, and to pay the
accrued salaries as a consequence of such reinstatement at the rate specified in the
decision. The Sheriff should serve the writ of execution upon the employer or any other
person required by law to obey the same. If he disobeys the writ, such employer or
person may be cited for contempt. While the perfection of appeal will stay the execution
of the decision of a Labor Arbiter, the partial execution for reinstatement pending appeal
is not affected by such perfection.

Is the award of reinstatement pending appeal by the Labor Arbiter self-executory?

Yes. An award or order of reinstatement is self-executory and, therefore, does not

require a writ of execution to implement and enforce it. To require the application for
and issuance of a writ of execution as pre-requisite for the execution of a reinstatement
award would certainly betray and run counter to the very object and intent of Article
223, i.e., the immediate execution of a reinstatement order. The reason is simple. An
application for a writ of execution and its issuance could be delayed for numerous
reasons. A mere continuance or postponement of a scheduled hearing, for instance, or
an inaction on the part of the Labor Arbiter or the NLRC, could easily delay the issuance
 of the writ thereby setting at naught the strict mandate and noble purpose envisioned by
Article 223.

What is the period within which to conduct pre-execution conference?

Within two (2) working days from receipt of a motion for the issuance of a writ of
execution which shall be accompanied by a computation of a judgment award, if
necessary, the Commission or the Labor Arbiter may schedule a pre-execution
conference to thresh out matters relevant to execution including the final computation of
monetary award. The pre-execution conference shall not exceed fifteen (15) calendar
days from the initial schedule, unless the parties agreed to an extension. Any order
issued by the Labor Arbiter in the pre-execution conference is not appealable, subject to
the remedies available under Rule XII (Extraordinary Remedies).

Is writ of execution necessary in case reinstatement is ordered by the NLRC on

appeal?

Yes. While it is now well-settled that a writ of execution is not necessary to implement
the reinstatement order issued by a Labor Arbiter upon a finding of illegality of dismissal
since it is self-executory, however, if the reinstatement order is issued by the NLRC on
appeal, there is a need to secure a writ of execution from the Labor Arbiter a quo to
enforce the reinstatement of the employee.

What is the lifetime or effectivity of the writ of execution?

 Five (5) years. In case of partial satisfaction of judgment during the lifetime of the writ,
the Labor Arbiter shall motu proprio issue an updated writ reflecting the amount
collected and the remaining balance.

What is the effect of refusal of the bonding company or bank holding the cash
deposit of the losing party to release the garnished amount?

If the bonding company refuses to pay or the bank holding the cash deposit of the losing
party refuses to release the garnished amount despite the order or pertinent processes
issued by the Labor Arbiter or the Commission, the president or the responsible officers
or authorized representatives of the said bonding company or the bank who resisted or
caused the non-compliance shall be either cited for contempt, or held liable for
resistance and disobedience to a person in authority or the agents of such person as
provided under the pertinent provision of the Revised Penal Code. This rule shall likewise
apply to any person or party who unlawfully resists or refuses to comply with the break
open order issued by the Labor Arbiter or the Commission.

What is the power of the DOLE Secretary to assume jurisdiction over a labor
dispute or certify it to the NLRC for compulsory arbitration?

The DOLE Secretary may assume jurisdiction over a labor dispute, or certify it to the
NLRC for compulsory arbitration, if, in his opinion, it may cause or likely to cause a strike
or lockout in an industry indispensable to the national interest. The President may
also exercise the power to assume jurisdiction over a labor dispute.
 What is the effect of such assumption or certification of labor dispute to the NLRC?

The following are the effects: (a) on intended or impending strike or lockout
automatically enjoined even if a Motion for Reconsideration is filed; (b) on actual strike
or lockout strikers or locked out employees should immediately return to work and
employer should readmit them back; and (c) on cases filed or may be filed all shall
be subsumed/absorbed by the assumed or certified case except when the order specified
otherwise. The parties to the case should inform the DOLE Secretary of pendency
thereof.

May an injunction be issued in strike or lockout cases?

As a general rule, strikes and lockouts validly declared, enjoy the protection of law and
cannot be enjoined unless illegal acts are committed or threatened to be committed in
the course of such strikes or lockouts. Ordinarily, the law vests in the NLRC the authority
to issue injunctions to restrain the commission of illegal acts during the strikes and
pickets. This policy applies even if the strike appears to be illegal in nature. The rationale
for this policy is the protection extended to the right to strike under the constitution and
the law. It is basically treated as a weapon that the law guarantees to employees for the
advancement of their interest and for their protection.

What is the effect of defiance of assumption or certification order or return-to-work

order?
 Non-compliance with the assumption/certification order of the Secretary of Labor and
Employment or a return-to-work order issued pursuant thereto by either the Secretary or
the NLRC to which a labor dispute is certified, is considered an illegal act committed in
the course of the strike or lockout.

What is the prescriptive period for offenses penalized under the Labor Code?

As a rule, the prescriptive period of all criminal offenses penalized under the Labor Code
and the Rules to Implement the Labor Codeis three (3) years from the time of
commission thereof. However, criminal cases arising from ULP which prescribe within one
(1) year from the time the acts complained of were committed; otherwise, they shall be
forever barred. The running of the 1 year period, however, is interrupted during the
pendency of the labor case.

What is the prescriptive period for money claims?

Prescriptive period is three (3) years from accrual of cause of action.

 What is the prescriptive period for claims for allowances and other benefits?

In cases of nonpayment of allowances and other monetary benefits, if it is established

that the benefits being claimed have been withheld from the employee for a period
longer than three (3) years, the amount pertaining to the period beyond the three-year
prescriptive period is barred by prescription. The amount that can only be demanded by
the aggrieved employee shall be limited to the amount of the benefits withheld within
three (3) years before the filing of the complaint.

What is the prescriptive period for illegal dismissal?

An action for illegal dismissal prescribes in four (4) years from accrual of cause of action.

What is the remedy of the party aggrieved by an order or resolution of the Labor
Arbiter?

A party aggrieved by any order or resolution of the Labor Arbiter including those issued
during execution proceedings may file a verified petition to annul or modify such order or
resolution. The petition may be accompanied by an application for the issuance of a
temporary restraining order and/or writ of preliminary or permanent injunction to enjoin
the Labor Arbiter, or any person acting under his/her authority, to desist from enforcing
said resolution or order.
 What are the grounds of the petition for extraordinary remedies?

The petition filed under this Rule may be entertained only on any of the following
grounds: (a) if there is prima facie evidence of abuse of discretion on the part of the
Labor Arbiter; (b) if serious errors in the findings of facts are raised which, if not
corrected, would cause grave or irreparable damage or injury to the petitioner; (c) if a
party by fraud, accident, mistake or excusable negligence has been prevented from
taking an appeal; (d) if made purely on questions of law; or (e) if the order or resolution
will cause injustice if not rectified.

What are the requisites of the petition for extraordinary remedies?

The petition for extraordinary remedies shall: (a) be accompanied by a clear original or
certified true copy of the order or resolution assailed, together with clear copies of
documents relevant or related to the said order or resolution for the proper
understanding of the issue/s involved; (b) contain the arbitral docket number and appeal
docket number, if any; (c) state the material date showing the timeliness of the petition;
(d) be verified by the petitioner himself/herself in accordance with Section 4, Rule 7 of
the Rules of Court, as amended; (e) be in the form of a memorandum which shall state
the ground/s relied upon, the argument/s in support thereof and the reliefs prayed for;
(f) be in three (3) legibly written or printed copies; and (g) be accompanied by certificate
of non-forum shopping, proof of service upon the other party/ies and the Labor Arbiter
who issued the order or resolution being assailed or questioned; and proof of payment of
the required fees.
 What is unfair labor practice?

An unfair labor practice act violates the right of workers to self-organization, is

inimical to the legitimate interests of both labor and management, including their right to
bargain collectively and otherwise deal with each other in an atmosphere of freedom and
mutual respect, disrupts industrial peace and hinders the promotion of healthy and stable
labor-management relations.

May elimination or diminution of benefits constitute demotion?

Yes. The illegal and unjustified elimination or diminution of certain benefits may result in
illegal demotion. Under established jurisprudence, there is demotion where the act of the
employer results in the lowering in position or rank or reduction in salary of the
employee. It involves a situation where an employee is relegated to a subordinate or less
important position constituting a reduction to a lower grade or rank with a corresponding
decrease in duties and responsibilities and usually accompanied by a decrease in salary.

May elimination or diminution of benefits constitute constructive dismissal?

Yes. Elimination or diminution of certain benefits may result in the constructive dismissal
of an employee. Constructive dismissal is an involuntary resignation resorted to when
continued employment is rendered impossible, unreasonable or unlikely; when there is a
demotion in rank and/or a diminution in pay; or when a clear discrimination, insensibility
or disdain by an employer becomes unbearable to the employee that it could foreclose
any choice by him except to forego his continued employment.

-oOo-
 2011 The National Labor Relations Commission, Republic of the Philippines