NLRC: Employer waives right to file Position Paper for non-appearance in mandatory conciliation/mediation


A client received a Summons from the National Labor Relations Commission (NLRC) around 5:00 o’clock in the afternoon with the first hearing scheduled on the next day at 9:00 o’clock in the morning. It was quite in bad taste.

Noticing that there was a new content in the Summons, I read the notice carefully and was surprised by this new paragraph:

“1. No motion for postponement shall be entertained except on meritorious grounds. Failure of the complainant to appear on the two (2) scheduled conferences shall cause the dismissal of the complaint; while a failure on the part of the respondent to appear shall be considered a waiver of the right to file position paper, and the complainant shall be allowed to file his/her position paper and submit evidence and thereafter a decision shall be rendered based on evidence on record all in accordance with Section 10, Rule V, of the 2011 NLRC Rules of Procedure, as amended.”

Really now?

I understand why the complaint may be dismissed if the complainant fails to appear for two (2) scheduled conferences.

I do not understand, however, the part where the employer is “considered to have waive[d]” his right to file position paper.

This is a blatant due process violation against the employer.

There are Supreme Court decision which have repeatedly held that the parties to a labor case should be afforded every opportunity to be heard. Even a belatedly submitted Position Paper is required to be considered in the resolution of the case.

Now, here is the NLRC saying that there is such waiver of a right to file Position Paper for non-appearance in the two (2) scheduled conferences.

Never mind that notices are sometimes received by the employers after the scheduled conferences. Never mind that notices are sometimes received by employers, as in this case, late in the afternoon, a day immediately preceding the hearing date. Never mind all possible scenarios, including force majeure such as a typhoon or a lost mail, where the employer was not able to receive the notice at all.

So long as the employer is unable to appear in the two (2) scheduled conferences, it will be considered to have waived its right to file position paper.

Now and again, we have to be reminded that there is a constitutional guarantee or should I say a mandate that: No person shall be deprived of life, liberty, and property without due process.

Being made liable for a judgment award results in deprivation of property in the form of cash or say loss of business if the monetary sum is outright ridiculous (which often is in labor cases). Employers who are unable to participate in the scheduled conferences for whatever reason will not be able to file their position paper since they are “considered to have waived” such right. There is something seriously incorrect in this situation.

There is the flawed argument that the employer can always appeal. For the uninitiated, a Labor Arbiter’s Decision may only be appealed within ten (10) calendar days. Otherwise, it is final and executory. Any appeal on an final decision is a Hail Mary.

The appellate courts tend to affirm an LA Decision which is final and executory, regardless of whether is unlawful or incorrect. Yes, this may be an eye-opener for some. Employers, who are innocent, may be held liable on pure technicality.

If I may add one more detail to my client’s case, they are a subsidiary domestic company to a foreign company. Why need to mention this point? This situation is just another example of why it is difficult to do business in the Philippines.