REPUBLIC OF THE PHILIPPINES

OFFICE OF THE OMBUDSMAN

Agham Road, Diliman, Quezon City

Cravings Food Services Inc.

Represented by Ma. Cecilia Agir
Complainant, ______________________
For: violation of Section 3
(e) of Republic Act 3019
Misconduct, and
Oppression

-versus-

Labor Arbiter Pablo A. Gajardo,

Respondent.
x-------------------------------------x

Complaint-Affidavit

Complainant Cravings Food Services Inc. (“CFSI”), through its

authorized representative, Ma. Cecilia Agir counsel, with office address 287
Katipunan Ave. Brgy. Loyola Heights, Quezon City, after having duly sworn in
accordance with law, hereby depose and state that:

1. Complainant is a domestic corporation with business address at 287

Katipunan Ave. Brgy. Loyola Heights, Quezon City.

2. Respondent Hon. Pablo A. Gajardo, is Labor Arbiter of the National

Labor assigned in the NCR office with office address PPSTA Bldg., No. 5,
Banawe cor. P. Florentino Sts., Quezon City.

3. Complainant was indicated as one of the Respondents in the labor

complaint for Illegal Dismissal assigned to the office of Hon. Pablo A. Gajardo
with case title. “Rizza C. Cayabyab v. Cravings Food Services et al.,” with case
no. NLRC-NCR-03-04097-17.

4. Undersigned representative, with one of the named Respondent and Legal

Officer, Atty. Frederick Jonathan A. Trinidad attended a Mandatory Conciliatory
hearing in the office of the Respondent Gajardo on 30 August 2017 in Quezon
City. On the said hearing Respondent Gajardo made several made several
untoward comments and insinuations bordering on malice and conduct
unbecoming towards Atty. Trinidad.

5. Undersigned representative and Atty. Trinidad was so taken aback by the

biased behavior of the Respondent to prejudice Atty. Trinidad that he decided
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to immediately record the incident through his email1.

6. Several incidence of unbecoming and unethical conduct towards Atty.

Trinidad are as follows:

a. Instead of taking Complainant’s offer of reinstatement as a

sign of good faith to Ms. Rizza Cayabyab, the Complainant in the
labor complaint, Respondent Gajardo already prejudged
Complainant’s gesture as an admission.

b. Respondent Gajardo repeatedly uttered statements that the

gesture of reinstatements weakened CFSI’s case.

c. Respondent Gajardo added that reinstatement only happens

when there is illegal dismissal and even added our gesture of
reinstatement, in effect, impliedly admitted the illegal dismissal.

d. That Complainant’s representative use of the word

“reinstatement” already weakened CFSI’s case.

e. Respondent Gajardo then proceeded to ask unnecessary and

invasive questions about the status of CFSI and the relation of Atty.
Trinidad to CFSI. Asking questions on whether Atty. Trinidad
owns CFSI and other businesses Atty. Trinidad may have owned.

f. Respondent also asked Atty. Trinidad if he is a practicing

lawyer cause if he is, then Atty. Trinidad should have hired a new
lawyer because the latter’s apparent lack of legal knowledge and
maybe because Atty. Trinidad has a lot of money.

g. Respondent keeps ignoring the fact CFSI sent several

notices to Ms. Rizza Cayabyab ordering her to report back to work.
Respondent Gajardo instead showed obvious prejudice towards
CFSI and Atty. Trinidad by again stating that CFSI’s case was
already weakened by the use of the term reinstatement.

h. Respondent beratement of Atty. Trinidad’s perceived lack of

legal knowledge led to Respondent asking Atty. Trinidad what law
school he graduated from. When Atty. Trinidad answered Ateneo
de Manila, Respondent asked what fraternity did he belong to, to
which Atty. Trinidad was forced into a tight spot. Atty. Trinidad
begrudgingly answered that he is Utopian. Respondent replied that
he was Aquilan.

i. Atty. Trinidad also put on notice to call Respondent up every

time Complainant has a Labor case. This utterance alone constitute
a sinister implication regarding ethical standards of a Labor Arbiter.
1 Please see copy of the email thread made by Atty. Trinidad right after the 30 August hearing
hereto attached as Annex “A”

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7. From incidents in the above-mentioned 30 August 2017 hearing that the
acts of the Respondent Labor Arbiter constitutes violation of Section 3(e) of
Republic Act no. 3019, misconduct, and oppression.

8. True to its previous manifestation of bias against Complainant and Atty.

Trinidad. Respondent Gajardo rendered a Decision2 dated 31 August 2018 only
one day after the aforementioned 30 August hearing. The Decision was ruled in
favor of Ms. Rizza Cayabyab proclaiming her to be illegally dismissed and order
Complainant and Atty. Trinidad to pay for her backwages and separation pay.

9. How can the Respondent conduct a hearing on 30 August 2018 and

render a decision on 31 August 2018? This is highly irregular and suspect. The
release of the Decision only shows that Respondent Labor Arbiter already made
the Decision even before the 31 August 2018 hearing. If this is not bias or
manifest partiality then undersigned don’t know what is.

10. Atty. Trinidad even executed an Affidavit to this effect and attached the
same in the Motion for Reconsideration34 of the labor case filed by Complainant
before the National Labor Relations Commission (“NLRC”). This only proves
that CFSI is still suffering from the unlawful acts of Respondent evident in the
Decision he issued.

10. The unlawful acts of the Respondent is violative of section 3(e) R.A. 3019
or the Anti-Graft and Corrupt Practices Act which reads:

Section 3. Corrupt practices of public officers. In addition to acts

or omissions of public officers already penalized by existing law,
the following shall constitute corrupt practices of any public officer
and are hereby declared to be unlawful:

(e) Causing any undue injury to any party, including the

Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence.
This provision shall apply to officers and employees of offices or
government corporations charged with the grant of licenses or
permits or other concessions. (emphasis supplied)

11. It is all but clear that Respondent already made the Decision for the labor
case without even considering the gestures in good faith Complainant and Atty.
Trinidad. In the case of Fuentes vs. Ombudsman5 the Supreme Court ruled:

2 Please see a copy of the Decision dated 31 August 2018, by Respondent hereto attached as
Annex “B”.
3 Please see a copy of the Motion for Reconsideration dated 26 March 2018 hereto attached as

Annex ”C”.
4 Please see a copy of the Affidavit filed by Atty. Trinidad attached to the Motion for

Reconsideration hereto attached as Annex”C-1”.

5 G.R. No. 164865, 11 November 2005.

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 In Gallego v. Sandiganbayan, the Court ruled that "unwarranted
means lacking adequate or official support; unjustified;
unauthorized; or without justification or adequate
reasons.”Advantage" means a more favorable or improved position
or condition; benefit or gain of any kind; benefit from course of
action. "Preference" signifies priority or higher evaluation or
desirability; choice or estimation above another.
Section (e) of Rep. Act No. 3019, which was approved by Congress
in Spanish reads:
(e) Causar algun perjuicio indebido a cualquiera, incluyendo al
Gobierno, o dar a alguna persona particular cualesquier beneficios,
vengaja o preferencia injustificados en el desempeño de sus
funciones administrativas judiciales de indole oficial con manifesta
parcialidad, evidente mala fe o crasa negligencia inexecusable. Esta
disposicion se aplicara a los funcionarios y empleados de oficinas o
de las corporaciones del gobierno encargados de otogar licencias o
permisos u otras concesiones.
"Perjuicio" means prejudice, mischief, injury, damages. Prejudice
means injury or damage, due to some judgment or action of another.
Mischief connotes a specific injury or damage caused by another.
"Indebido" means undue, illegal, immoral, unlawful, void of equity
and moderations.
In Pecho v. Sandiganbayan, the Court en banc defined injury
as "any wrong or damage done to another, either in his person,
or in his rights, reputation or property; the invasion of any
legally protected interests of another. It must be more than
necessary or are excessive, improper or illegal. It is required
that the undue injury caused by the positive or passive acts of
the accused be quantifiable and demonstrable and proven to
the point of moral certainty. Undue injury cannot be presumed
even after a wrong or a violation of a right has been
established.
12. Moreover, the case of Santos vs. People of the Philippines6
elucidates further the elements for violating section 3(e) of R.A. 3019, to wit:

6 G.R. No. 161877, March 23, 2006.

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 “In Jacinto vs. Sandiganbayan the Court en banc enumerated the
essential elements of the crime punishable under the aforequoted
statutory provision, to wit:
1. The accused must be a public officer discharging administrative,
judicial or official functions;
2. He must have acted with manifest partiality, evident bad faith or
inexcusable negligence; and
3. That his action caused any undue injury to any party, including
the government, or giving any private party unwarranted benefits,
advantage or preference in the discharge of his functions.

As may be noted, what contextually is punishable is the act of

causing any undue injury to any party, or the giving to any private
party of unwarranted benefits, advantage or preference in the
discharge of the public officer’s functions. In Uy vs.
Sandiganbayan, and again in Santiago vs. Garchitorena, the Court
has made it abundantly clear that the use of the disjunctive word
"or" connotes that either act of (a) "causing any undue injury to any
party, including the Government"; and (b) "giving any private party
any unwarranted benefits, advantage or preference," qualifies as a
violation of Section 3(e) of R.A. No. 3019, as amended. This is not
to say, however, that each mode constitutes a distinct offense but
that an accused may be proceeded against under either or both
modes.”
13. The collective untoward and unethical acts of Respondent Gajardo on the
30 August 2017 hearing, taken together with the hasty Decision issued on the
very next day only proves partiality and evident bad faith of Respondent which
resulted to undue injury towards Complainant and Atty. Trinidad.
14. Respondent Gajardo also committed oppression towards Complainant
and Atty. Trinidad. In the case of Office of the Ombudsman vs. Caberoy7
Oppression was defined as:
“Oppression is also known as grave abuse of authority, which is a
misdemeanor committed by a public officer, who under color of
his office, wrongfully inflict upon any person any bodily harm,
imprisonment or other injury. It is an act of cruelty, severity, or
excessive use of authority. To be held administratively liable for
Oppression or Grave Abuse of Authority, there must be substantial
evidence presented proving the complainant’s allegations.

7 G.R. No. 188066, October 22, 2014.

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 Substantial evidence is that amount of relevant evidence which a
reasonable mind might accept as adequate to support a
conclusion.”
15. Again, Respondent Gajardo oppressed Complainant and Atty. Trinidad
when he issued the Decision one day after the 30 August hearing. It is hard to
accept the issued Decision from Respondent when circumstances evidencing his
bias and partiality showed throughout the 30 August 2017 hearing and the
contents of the Decision which Complainant deemed to be without basis in facts
and in law. Respondent simply prejudged the Labor Complaint filed with his
office and monetary injury was suffered by Complainant and Atty. Trinidad as a
result.
16. Respondent also committed misconduct under the circumstances.
Misconduct as defined in Miro v. Mendoza8:
“Misconduct is a transgression of some established and definite
rule of action, more particularly, unlawful behavior or gross
negligence by a public officer. The misconduct is considered as
grave if it involves additional elements such as corruption or willful
intent to violate the law or to disregard established rules, which
must be proven by substantial evidence; otherwise, the misconduct
is only simple. Corruption, as an element of grave misconduct,
consists in the act of an official or fiduciary person who unlawfully
and wrongfully uses his station or character to procure some
benefit for himself or for another person, contrary to duty and the
rights of others”
17. By Respondent’s suspect and untoward behavior against Atty. Trinidad in
the 30 August 2017 hearing. Being the Labor Arbiter tasked assist the parties into
an amicable settlement, Respondent pretty much did the opposite. Showing
obvious unlawful behavior unbecoming of man in his position by berating Atty.
Trinidad for his perceived lack of legal knowledge almost mocking Atty. Trinidad
for his supposed shortcomings. This act confounded by the issuance of a
hastily made Decision only showed that Respondent’s treatment of Atty.
Trinidad resulted in great injury to Complainant not only by the hastily
issued Decision without basis in facts and in law but also it deprived
Complainant of someone who has a cold neutrality of an impartial judge.

18. Complainant, through undersigned has executed this Complaint-Affidavit

for the purpose of attesting to the truth of all the foregoing facts and to support
the filing of a criminal Complaint against the Respondent for violation of Section
3(e) of R.A. 3019, Oppression and Misconduct.

8 G.R. Nos. 172532 172544-45 November 20, 2013.

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18. In addition, by way of example or correction for the public good,
Respondent should be held for exemplary damages in the amount of P50,000.

AFFIANT FURTHER SAYETH NAUGHT.

IN WITNESS WHEREOF, the Complainant has hereunto set his hand

this ____ day of September 2018 in the Quezon City.

Ma. Cecilia Agir

Authorized Representative of Complainant

SUBSCRIBED AND SWORN to before me this ____ day of

___________ 2018 in the Quezon City, Philippines.

Investigating Prosecutor

CERTIFICATION

I hereby certify that I personally examined the Complaint and I am

satisfies that he voluntarily executed the foregoing Complaint-Affidavit.

Investigating Prosecutor

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