digests re migrant workers

8/9/2019 Digests Re Migrant Workers

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IMELDA DARVIN v. HON. COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES

G.R. No. 125044, July 13, 1998, THIRD DIVISION, (ROMERO, J.)

According to the prosecution, Macaria Toledo, shows that she met Darvin in the latter’s residence at Dimasalang , Imus,

Cavite, through the introduction of their common friends, Florencio Jake Rivera and Leonila Rivera. Accused-appellant

allegedly convinced Toledo that by giving her P150,000.00, the latter can immediately leave for the United States

without any appearance before the U.S. embassy. Thus, Toledo gave Darvin the amount of P150,000.00, as evidenced

by a receipt stating that the ‘amount of P150,000.00 was for U.S. Visa and Air fare However, when after a week, there was no word from Darvin, Toledo went to her residence to inquire about any development, but could not find Darvin.

Thereafter,Toledo filed a complaint with the Bacoor Police Station against Imelda Darvin. Upon further investigation, a

certification was issued by the Philippine Overseas Employment Administration (POEA) stating that Imelda Darvin is

neither licensed nor authorized to recruit workers for overseas employment.[5] Accused-appellant was then charged for

estafa and illegal recruitment by the Office of the Provincial Prosecutor of Cavite.

Accused-appellant, on the other hand, testified that she used to be connected with Dale Travel Agency. Toledo sought

her help to secure a passport, US visa and airline tickets to the States. She claims that she did not promise any

employment in the U.S. to Toledo. She, however, admits receiving the amount of P150,000.00 from the latter for

necessary expenses of an intended trip to the United States of Toledo and her friend, Florencio Rivera.

RTC found accused-appellant guilty of the crime of simple illegal recruitment but acquitted her of the crime of

estafa.CA affirmed the decision of the trial court. Hence, this petition on certiorari.

ISSUE: Is Toledo guilty of Illegal Recruitment?

HELD:

NO. Article 13 of the Labor Code, as amended, provides the definition of recruitment and placement as:

“x x x; b) any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers, and includes

referrals, contract services, promising or advertising for employment. locally or abroad, whether for profit or not:Provided , that any person or entity which, in any manner, offers or promises for a fee employment to two or more

persons shall be deemed engaged in recruitment and placement.”

On the other hand, Article 38 of the Labor Code provides:

a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be

undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this

Code. The Ministry of Labor and Employment or any law enforcement officer may initiate complaints under this

Article.

Applied to the present case, to uphold the conviction of accused-appellant, two elements need to be shown: (1) the

person charged with the crime must have undertaken recruitment activities; and (2) the said person does not have a

license or authority to do so.

Applying the rule laid down in the case of People v. Goce, to prove that accused-appellant was engaged in recruitment

activities as to commit the crime of illegal recruitment, it must be shown that the accused appellant gave private

respondent the distinct impression that she had the power or ability to send the private respondent abroad for work

such that the latter was convinced to part with her money in order to be so employed.

In this case, we find no sufficient evidence to prove that accused-appellant offered a job to private respondent. It is not

clear that accused gave the impression that she was capable of providing the private respondent work abroad. What is

established, however, is that the private respondent gave accused-appellant P150,000.00. The claim of the accused that


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the P150,000.00 was for payment of private respondent’s air fare and US visa and other expenses cannot be ignored

because the receipt for the P150,000.00, which was presented by both parties during the trial of the case, stated that it

was “for Air Fare and Visa to USA.” Had the amount been for something else in addition to air fare and visa expenses,

such as work placement abroad, the receipt should have so stated.

In criminal cases, the burden is on the prosecution to prove, beyond reasonable doubt, the essential elements of the

offense with which the accused is charged; and if the proof fails to establish any of the essential elements necessary to

constitute a crime, the defendant is entitled to an acquittal. Proof beyond reasonable doubt does not mean such adegree of proof as, excluding the possibility of error, produces absolute certainty. Moral certainty only is required, or

that degree of proof which produces conviction in an unprejudiced mind.

ANTONIO SERRANO v . GALLANT MARITIME SERVICES INC.

& MARLOW NAVIGATION CO. INC.

G.R. No. 167614, March 24, 2009, EN BANC (Austria-Martinez, J.)

Serrano was hired by Gallant Maritime Services, Inc. and Marlow Navigation Co., Ltd. under a Philippine

Overseas Employment Administration (POEA)-approved Contract of Employment. On the date of his departure,

Serrano was constrained to accept a downgraded employment contract for the position of 2nd Officer with a monthly

salary of US$1,000.00, upon the assurance and representation of respondents that he would be made Chief Officer

however the latter did not deliver their promise. Serrano refused to stay on as 2nd Officer and was repatriated to the

Philippines. Serrano's employment contract was for a period of 12 months but at the time of his repatriation he had

served only 2 months and 7 days of his contract, leaving an unexpired portion of 9 months and 23 days. Serrano filed

with the LA a complaint against respondents for constructive dismissal and for payment of his money claims. The LA

declared the dismissal of Serrano illegal and awarding him monetary benefits.

In awarding Serrano a lump-sum salary of US$8,770.00, the LA based his computation on the salary period of 3months only, rather than the entire unexpired portion of 9 months and 23 days of petitioner's employment contract,

applying the subject clause1. However, the LA applied the salary rate of US$2,590.00, consisting of Serrano's "basic

salary, US$1,400.00/month + US$700.00/month, fixed overtime pay, + US$490.00/month, vacation leave pay =

US$2,590.00/compensation per month.” Respondents appealed to the NLRC to question the finding of the LA that

Serrano was illegally dismissed. Serrano also appealed on the sole issue that the LA erred in not applying the previous

ruling of the Court that in case of illegal dismissal, OFWs are entitled to their salaries for the unexpired portion of their

contracts. The NLRC corrected the LA's computation of the lump-sum salary awarded to Serrano by reducing the

applicable salary rate from US$2,590.00 to US$1,400.00 because R.A. No. 8042 "does not provide for the award of

overtime pay, which should be proven to have been actually performed, and for vacation leave pay." Serrano questioned

the constitutionality of the subject clause.

ISSUE: Is the subject clause unconstitutional?

HELD:

YES. The subject clause violates Section 1, Article III of the Constitution, and Section 18, Article II and

Section 3, Article XIII on labor as a protected sector. Upon cursory reading, the subject clause appears facially neutral,

1 Sec. 10. Money Claims . - x x x In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of 12% per annum, plus his salaries for the unexpired portion of hisemployment contract or for three (3) months for every year of the unexpired term, whichever is less.


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for it applies to all OFWs. However, a closer examination reveals that the subject clause has a discriminatory intent

against, and an invidious impact on, OFWs at two levels:

First, OFWs with employment contracts of less than one year vis-à-vis OFWs with employment contracts of one year

or more;

Second, among OFWs with employment contracts of more than one year; and

Third, OFWs vis-à-vis local workers with fixed-period employment; OFWs with employment contracts of less than

one year vis-à-vis OFWs with employment contracts of one year or more.

As pointed out by Serrano, it was in Marsaman Manning Agency, Inc. v. National Labor Relations Commission, that the

Court laid down the following rules on the application of the periods prescribed under Section 10(5) of R.A. No. 804,

to wit:

“ A plain reading of Sec. 10 clearly reveals that the choice of which amount to award an illegally dismissed

overseas contract worker, i.e., whether his salaries for the unexpired portion of his employment contract or three (3)

months' salary for every year of the unexpired term, whichever is less, comes into play only when the employment

contract concerned has a term of at least one (1) year or more. This is evident from the words "for every year of the

unexpired term" which follows the words "salaries x x x for three months." To follow petitioners' thinking that private

respondent is entitled to three (3) months salary only simply because it is the lesser amount is to completely disregard

and overlook some words used in the statute while giving effect to some. This is contrary to the well-established rule inlegal hermeneutics that in interpreting a statute, care should be taken that every part or word thereof be given effect

since the law-making body is presumed to know the meaning of the words employed in the statue and to have used

them advisedly.

The enactment of the subject clause in R.A. No. 8042 introduced a differentiated rule of computation of the

money claims of illegally dismissed OFWs based on their employment periods, in the process singling out one

category whose contracts have an unexpired portion of one year or more and subjecting them to the peculiar

disadvantage of having their monetary awards limited to their salaries for 3 months or for the unexpired portion

thereof, whichever is less, but all the while sparing the other category from such prejudice, simply because the latter's

unexpired contracts fall short of one year.

The Court concludes that the subject clause contains a suspect classification in that, in the

computation of the monetary benefits of fixed-term employees who are illegally discharged, it imposes a 3-

month cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but none

on the claims of other OFWs or local workers with fixed- term employment. The subject clause singles out

one classification of OFWs and burdens it with a peculiar disadvantage.

The subject clause does not state or imply any definitive governmental purpose; and it is for that precise reason

that the clause violates not just Serrano's right to equal protection, but also the right to substantive due process under

Section 1, Article III of the Constitution.

The subject clause being unconstitutional, Serrano is entitled to his salaries for the entire unexpired period of

nine months and 23 days of his employment contract, pursuant to law and jurisprudence prior to the enactment of R.A.

No. 8042.


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DANTE D. DE LA CRUZ vs. MAERSK FILIPINAS CREWING, INC. and ELITE SHIPPING A.S.

Respondent Elite Shipping A.S hired Dante De La Cruz as third engineer for the vessel M/S Arktis Morning

through its local agency in the Philippines, Maersk Filipinas Crewing Inc. The contract of employment was for 9

months. De La Cruz was deployed to Jebel, UAE and boarded M/S Arktis on May 14, 1999.

However, chief engineer Normann Per Nielsen expressed his dissatisfaction over petitioner’s performance, the

latter has been informed that if he does not improve his Job/Working performance within a short time he will besigned off according to CBA Article 1 (7) which provides that the first sixty (60) days of service is to be considered a

probationary period.

On June 27, 1999, petitioner was informed of his discharge and was made to disembark at the port of Houston,

Texas. On July 17, 1999 he was repatriated to the Philippines. He then filed a complaint for illegal dismissal with

claims for the monetary equivalent of the unexpired portion of his contract, damages, and atty.’s fees in the NLRC.

The Labor Arbiter ruled in favor of petitioner, finding that he was dismissed without just cause and due

process. The NLRC upheld LA’s ruling but deleted the award of moral and exemplary damages. CA, however,

reversed their ruling.

ISSUE. WON petitioner Dante De La Cruz was illegally dismissed.

HELD.

YES. An employer has the burden of proving that an employee's dismissal was for a just cause. Failure to

show this necessarily means that the dismissal was unjustified and therefore illegal. Furthermore, not only must the

dismissal be for a cause provided by law, it should also comply with the rudimentary requirements of due process, that

is, the opportunity to be heard and to defend oneself.

These requirements are of equal application to cases of Filipino seamen recruited to work on board foreign vessels.

Procedural due process requires that a seaman must be given a written notice of the charges against him andafforded a formal investigation where he can defend himself personally or through a representative before he

can be dismissed and disembarked from the vessel. The employer is bound to furnish him (1) the written charge and

(2) the written notice of dismissal (in case that is the penalty imposed). Furthermore, the notice must state with

particularity the acts or omissions for which his dismissal is being sought.

Contrary to respondents' claim, the logbook entries did not substantially comply with the first notice, or the written notice of

charge(s). It did not state the particular acts or omissions for which petitioner was charged. The statement therein that petitioner

had “not been able to live up to the company's SMS job description for 3 rd Engineer” and that he had “been informed that if he

[does] not improve his job/working performance within [a] short time he will have to be signed off according to CBA Article 1 (7)”

was couched in terms too general for legal comfort. The logbook entries were too general and vague as to justify his dismissal with

just cause.

-----------------------------------------------

It was petitioner’s position that he was already a regular employee when his services were terminated; respondents, on

the other hand, insisted that he was then still on probationary status. This, according to respondents, entitled them to

dismiss him in accordance with the provisions of Article 1 (7) of the CBA (which allows the master to terminate the

contract of one under probation by merely serving a written notice 14 days prior to the contemplated discharge).


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It is well to remind both parties that, as early as Brent School, Inc. v. Zamora , we already held that seafarers are not

covered by the term regular employment , as defined under Article 280 of the Labor Code. This was reiterated

in Coyoca v. National Labor Relations Commission. Instead, they are considered contractual employees whose rights and

obligations are governed primarily by the POEA Standard Employment Contract for Filipino Seamen (POEA Standard

Employment Contract), the Rules and Regulations Governing Overseas Employment, and, more importantly, by

Republic Act No. 8042, otherwise known as The Migrant Workers and Overseas Filipinos Act of 1995. Even the

POEA Standard Employment Contract itself mandates that in no case shall a contract of employment

concerning seamen exceed 12 months.

It is an accepted maritime industry practice that the employment of seafarers is for a fixed period only. The Court

acknowledges this to be for the mutual interest of both the seafarer and the employer. Seafarers cannot stay for a long

and indefinite period of time at sea as limited access to shore activity during their employment has been shown to

adversely affect them. Furthermore, the diversity in nationality, culture and language among the crew necessitates the

limitation of the period of employment.

While we recognize that petitioner was a registered member of the Associated Marine Officers and Seamen's Union of

the Philippines which had a CBA with respondent Elite Shipping A.S. providing for a probationary period of

employment, the CBA cannot override the provisions of the POEA Standard Employment Contract.

In Millares v. NLRC , this Court had occasion to rule on the use of the terms “permanent and probationary masters and

employees” vis-à-vis contracts of enlistment of seafarers. In that case, petitioners made much of the fact that they were

continually re-hired for 20 years by private respondent Esso International. By such circumstances, they claimed to have

acquired regular status with all the rights and benefits appurtenant thereto. The Court quoted with favor the NLRC's

explanation that the reference to permanent and probationary masters and employees was a misnomer. It did not

change the fact that the contract for employment was for a definite period of time. In using the terms

“probationary” and “permanent” vis-à- vis seafarers, what was really meant was “eligible for re-hire.”

This is the only logical explanation possible as the parties cannot and should not violate the POEA's directive that a

contract of enlistment must not exceed 12 months.

Petition granted. CA’s decision is reversed and set aside.

PAUL V. SANTIAGO, PETITIONER, VS. CF SHARP CREW MANAGEMENT, INC., RESPONDENT.

Petitioner, Paul V. Santiago, had been working as a seafarer for Smith Bell Management, Inc. (respondent) for about

five (5) years. On 3 February 1998, petitioner signed a new contract of employment with respondent, with the duration

of nine (9) months. He was assured of a monthly salary of US$515.00, overtime pay and other benefits. The following

day or on 4 February 1998, the contract was approved by the Philippine Overseas Employment Administration

(POEA). Petitioner was to be deployed on board the "MSV Seaspread" which was scheduled to leave the port ofManila for Canada on 13 February 1998.

A week before the scheduled date of departure, Capt. Pacifico Fernandez, respondent's Vice President, sent a facsimile

message to the captain of "MSV Seaspread," which reads:

I received a phone call today from the wife of Paul Santiago in Masbate asking me not to send her husband to

MSV Seaspread anymore. Other callers who did not reveal their identity gave me some feedbacks that Paul

Santiago this time if allowed to depart will jump ship in Canada like his brother Christopher Santiago, O/S who

jumped ship from the C.S. Nexus in Kita-kyushu, Japan last December, 1997.


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We do not want this to happen again and have the vessel penalized like the C.S. Nexus in Japan.

Forewarned is forearmed like his brother when his brother when he was applying he behaved like a Saint but in

his heart he was a serpent. If you agree with me then we will send his replacement.

Kindly advise.

To this message the captain of "MSV Seaspread" replied:Many thanks for your advice concerning P. Santiago, A/B. Please cancel plans for him to return to Seaspread.

On 9 February 1998, petitioner was thus told that he would not be leaving for Canada anymore, but he was reassured

that he might be considered for deployment at some future date.

Petitioner filed a complaint for illegal dismissal, damages, and attorney's fees against respondent and its foreign

principal, Cable and Wireless (Marine) Ltd.

ISSUE:

1.

Whether the seafarer, who was prevented from leaving the port of Manila and refused deployment without

valid reason but whose POEA-approved employment contract provides that the employer-employee

relationship shall commence only upon the seafarer's actual departure from the port in the point of hire, is

entitled to relief?

2.

Is petitioner entitled to the supposed overtime pay and moral damages?

3. Is the petitioner entitled to attorney’s fee in the concept of damages?

HELD.

1.

YES. Though employment contract did not commence, and no employer-employee relationship was created

between the parties, respondent's act of preventing petitioner from departing the port of Manila and boarding

"MSV Seaspread" constitutes a breach of contract, giving rise to petitioner's cause of action.

The perfection of the contract, which in this case coincided with the date of execution thereof, occurred when

petitioner and respondent agreed on the object and the cause, as well as the rest of the terms and conditions therein.

The commencement of the employer-employee relationship, would have taken place had petitioner been actually

deployed from the point of hire. Thus, even before the start of any employer-employee relationship, contemporaneous

with the perfection of the employment contract was the birth of certain rights and obligations, the breach of which may

give rise to a cause of action against the erring party. Thus, if the reverse had happened, that is the seafarer failed or

refused to be deployed as agreed upon, he would be liable for damages.

Article 2199 of the Civil Code provides that one is entitled to an adequate compensation only for such pecuniary loss

suffered by him as he has duly proved. Respondent is thus liable to pay petitioner actual damages in the form of the loss

of nine (9) months' worth of salary as provided in the contract.

2.

NO, petitioner is not entitled to the supposed overtime pay and moral damages.

While the contract indicated a fixed overtime pay, it is not a guarantee that he would receive said amount regardless of

whether or not he rendered overtime work. Even though petitioner was "prevented without valid reason from

rendering regular much less overtime service," the fact remains that there is no certainty that petitioner will perform

overtime work had he been allowed to board the vessel. The amount of US$286.00 stipulated in the contract will be


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paid only if and when the employee rendered overtime work. This has been the tenor of our rulings in the case of Stolt-

Nielsen Marine Services (Phils.), Inc. v. National Labor Relations Commission where we discussed the matter in this light:

The contract provision means that the fixed overtime pay of 30% would be the basis for computing the overtime pay if

and when overtime work would be rendered. Simply stated, the rendition of overtime work and the submission of

sufficient proof that said work was actually performed are conditions to be satisfied before a seaman could be entitled

to overtime pay which should be computed on the basis of 30% of the basic monthly salary.

In short, the contract provision guarantees the right to overtime pay but the entitlement to such benefit must first be

established. Realistically speaking, a seaman, by the very nature of his job, stays on board a ship or vessel beyond the

regular eight-hour work schedule. For the employer to give him overtime pay for the extra hours when he might be

sleeping or attending to his personal chores or even just lulling away his time would be extremely unfair and

unreasonable.

Moral damages cannot be awarded in this case. While respondent's failure to deploy petitioner seems baseless and

unreasonable, we cannot qualify such action as being tainted with bad faith, or done deliberately to defeat petitioner's

rights, as to justify the award of moral damages. At most, respondent was being overzealous in protecting its interest

when it became too hasty in making its conclusion that petitioner will jump ship like his brother.

3. YES, petitioner is entitled to attorney's fees in the concept of damages and expenses of litigation.

Attorney's fees are recoverable when the defendant's act or omission has compelled the plaintiff to incur expenses to

protect his interest. The Court notes that respondent's basis for not deploying petitioner is the belief that he will jump

ship just like his brother, a mere suspicion that is based on alleged phone calls of several persons whose identities were

not even confirmed. Time and again, this Court has upheld management prerogatives so long as they are exercised in

good faith for the advancement of the employer's interest and not for the purpose of defeating or circumventing the

rights of the employees under special laws or under valid agreements. Respondent's failure to deploy petitioner is

unfounded and unreasonable, forcing petitioner to institute the suit below. The award of attorney's fees is thus

warranted.

COASTAL SAFEWAY MARINE SERVICES, INC., PETITIONER, LEONISA M. DELGADO,

RESPONDENT.

G.R. No. 168210, June 17, 2008, QUISUMBING, J., SECOND DIVISION

Coastal Safeway Marine Services, Inc. (Coastal), with Arabian Marine and Terminal Services Co. Ltd. as its principal,

hired Jerry M. Delgado, with the position of General Purpose 2 on board M/V "Lulu 1." Upon arrival in Saudi Arabia,

however, Jerry was instructed to board another vessel, the M/V "Karan 7," and was deployed as a Chief Engineer on

August 3, 2001. On December 22, 2001, while on board, Jerry complained of stomach pain. He was immediately

treated, but on December 29, 2001, he again fell ill. On January 8, 2002, while confined at the city hospital in Dharan,Saudi Arabia, Jerry died due to "acute cessation of blood circulation and respiration." Thereafter, his remains were

transported to Manila.

After her claim for death benefits was denied by Coastal, respondent filed a complaint with the NLRC. Thereafter,

NLRC rendered a decision2 in favor of respondent awarding her death benefits and $7,000 for each of their four

2 Considering that based on records, complainant's husband was issued a fit to work certification by [Coastal's] accredited physician prior to hisdeployment and was reported by the ship's captain to be "healthy and energetic"...when he joined the vessel, but barely 5 months thereafter hedied as a result of illness during the term of his contract and not from his own willful or criminal act. The employer/principal is therefore


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children. On appeal the decision was affirmed by the CA. It ruled that based on Section 20(A)of the Philippine

Overseas Employment Administration (POEA) Standard Employment Contract, it is sufficient that Jerry's death

occurred during the term of his employment as to entitle his beneficiaries to claim death benefits.

Petitioner contends that in determining whether Jerry's death is compensable, Department of Labor and Employment

(DOLE) Department Order No. 4, series of 2000 and POEA Memorandum Circular No. 9, series of 2000 should apply

because these were the laws embodied in Jerry's employment contract.

ISSUE.

1. WON the Court of Appeals erred in awarding death benefits to Jerry's heirs based on Section 20(A) of the

POEA Standard Employment Contract?

2.

WON an affidavit of waiver executed regarding such benefits is valid

DECISION.

1.

No, The employment of seafarers, including claims for death benefits, is governed by the contracts they sign

every time they are hired or rehired; and as long as the stipulations therein are not contrary to law, morals,

public order or public policy, they have the force of law between the parties. While the seafarer and his

employer are governed by their mutual agreement, the POEA rules and regulations require that the POEA

Standard Employment Contract be integrated in every seafarer's contract.

Jerry’s contract reveals that what was expressly integrated therein by the parties was DOLE DO No. 4, series of 2000 3

and POEA Memorandum Circular No. 9, series of 2000. However, POEA had issued Memorandum Circular No. 11,

series of 2000 stating that:

In view of the Temporary Restraining Order issued by the Supreme Court in a Resolution dated September 11, 2000 on

the implementation of certain amendments of the Revised Terms and Conditions Governing the Employment of

Filipino Seafarers on Board Ocean-Going Vessels as contained in DOLE Department Order No. 04 and POEA

Memorandum Circular No. 09, both Series of 2000, please be advised of the following Section 20, Paragraphs (A),

(B) and (D) of the former Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board

Ocean-Going Vessels, as provided in DOLE Department Order No. 33, and POEA Memorandum Circular No. 55,both Series of 1996 shall apply in lieu of Section 20 (A), (B) and (D) of the Revised Version;

In effect, POEA Memorandum Circular No. 11-00 thereby paved the way for the application of the POEA Standard

Employment Contract based on POEA Memorandum Circular No. 055, series of 1996. Worth noting, Jerry boarded

the ship on August 2001 before the said temporary restraining order was lifted on June 5, 2002 by virtue of

Memorandum Circular No. 2, series of 2002. Consequently, Jerry's employment contract with Coastal must conform to

Section 20(A)4 of the POEA Standard Employment Contract based on POEA.

Stated differently, for death of a seafarer to be compensable, the death must occur during the term of his contract of

employment. It is the only condition for compensability of a seafarer's death. Once it is established that the seaman died

during the effectivity of his employment contract, the employer is liable. In Jerry's case, the parties did not dispute that Jerry died due to heart ailment during the term of his employment. Aside from the fact that respondent had submitted

Jerry's death certificate, petitioner admits such fact of death as early as the time it had submitted its first position paper

liable... [Coastal] is also answerable for such death benefits because the law (Sec. 10 of R.A. No. 8042) provides for the solidary liability of theprincipal and the local agent for any and all claims of an overseas worker

3 POEA Amended Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean-Going Vessels4 Sec. 20 thereof provides that - In case of death of the seafarer during the term of his contract, the employer shall pay his beneficiaries thePhilippine Currency equivalent to the amount of Fifty Thousand US dollars (US$50,000) and an additional amount of Seven Thousand US dollars(US$7,000) to each child under the age of twenty-one (21) but not exceeding four (4) children, at the exchange rate prevailing during the time ofpayment.


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with the NLRC. Further, it is not important that a reasonable work connection must be established between the death

and the illness. Compensability of Jerry's death does not depend on whether his illness was work-connected or not.

What is material is that his death occurred during the term of his employment contract. By provision of Section 20(A)

of the POEA Standard Employment Contract, based on POEA Memorandum Circular No. 055, series of 1996,

payment of death benefit pension is mandated in case of death of a seafarer during the term of his employment.

2. NO, Respondent cannot escape liability on the mere basis of the affidavit of waiver supposedly executed by the

deceased seaman. The basic reason is that waivers and quitclaims are against public policy and therefore nulland void. More especially, the court is inclined to regard said document as spurious or fabricated because it was

only brought out on appeal after the Labor Arbiter has awarded death benefits in favor of the complainant and

her 4 minor children.

Petition Denied.

CRYSTAL SHIPPING, INC., AND/OR A/S STEIN LINE BERGEN, PETITIONERS, VS. DEO P.

NATIVIDAD, RESPONDENT.

Petitioner A/S Stein Line Bergen, through its local manning agent, petitioner Crystal Shipping, Inc., employed

respondent Natividad as Chief Mate of M/V Steinfighter for 10 months. Within the contract period, respondent

became sick and was diagnosed with "swelling neck and lymphatic glands right side in neck", declared unfit for duty,

and advised to see an ear-nose- throat specialist in Manila. He was then referred to ClinicoMed Inc., the company-

designated clinic, for check-up and later thoroughly examined at the Manila Doctors Hospital. He was diagnosed with

"papillary carcinoma, metastatic to lymphoid tissue consistent with thyroid primary" and "reactive hyperplasis, lymph

node". He then underwent operation but thereafter, he developed chest complications and pleural effusion, and had to

undergo operation. His attending physician diagnosed him permanently disabled with a grade 9 impediment, with grade

1 as the most serious.

A second opinion by Marine Medical Services and Dr. Lim of Metropolitan Hospital, likewise foundrespondent was disabled with a grade 9 impediment. While being treated, respondent sought the opinion of Dr.

Vicaldo, finding him totally and permanently disabled for labor with a grade 1 impediment.

All expenses incurred in respondent's examination and treatments were shouldered by the petitioners.

Respondent was also paid the grade 9 impediment illness allowances. Thereafter, petitioners offered $13,060 disability

benefits which respondent rejected. Respondent claimed that he deserves to be paid $60,000 for a grade 1 impediment.

Failing to reach an agreement, respondent filed a complaint for disability benefits. The Labor Arbiter ruled and ordered

petitioners to pay the monetary claims prayed for. On appeal, the NLRC and CA affirmed said decision. On this instant

appeal, the petitioners assert that the NLRC erred when it said that findings of company-designated doctors are self-

serving. They point out that there were three doctors who came up with the same findings. They argue that these

findings were more credible than the findings of respondent's doctor. In addition, petitioners claim that the award of agrade 1 impediment/disability benefit was wrong considering that respondent subsequently gained employment as chief

mate of another vessel.

ISSUE. WON the findings of company-designated doctors are self-serving

RULING

YES.


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Section 30 of the POEA Memorandum Circular No. 55, S. 1996, provides the schedule of disability or

impediment for injuries suffered and illness contracted. The particular illness of the respondent is not within those

enumerated. But, the same provision supplies us with the guideline that any item in the schedule classified under

grade 1 constitutes total and permanent disability.

Permanent disability is the inability of a worker to perform his job for more than 120 days, regardless of

whether or not he loses the use of any part of his body. As gleaned from the records, respondent was unable to

work from August 18, 1998 to February 22, 1999, at the least, or more than 120 days, due to his medical treatment. Thisclearly shows that his disability was permanent. On the other hand, total disability means the disablement of an

employee to earn wages in the same kind of work of similar nature that he was trained for, or accustomed to

perform, or any kind of work which a person of his mentality and attainments could do. It does not mean

absolute helplessness. In disability compensation, it is not the injury which is compensated, but rather it is the

incapacity to work resulting in the impairment of one's earning capacity.

Although the company-designated doctors and respondent's physician differ in their assessments of the degree of

respondent's disability, both found that respondent was unfit for sea-duty due to respondent's need for regular

medical check-ups and treatment which would not be available if he were at sea . There is no question in our

mind that respondent's disability was total.

Petitioners tried to contest the above findings by showing that respondent was able to work again as a chief mate in

March 2001. Nonetheless, this information does not alter the fact that as a result of his illness, respondent was unable

to work as a chief mate for almost three years. It is of no consequence that respondent was cured after a couple of

years. The law does not require that the illness should be incurable. What is important is that he was unable to

perform his customary work for more than 120 days which constitutes permanent total disability. An award of a

total and permanent disability benefit would be germane to the purpose of the benefit, which is to help the employee in

making ends meet at the time when he is unable to work.

JESUS E. VERGARA v. HAMMONIA MARITIME SERVICES, INC. & ATLANTIC MARINE LTD.G.R. No. 172933, 6 October 2008, SECOND DIVISION, (Brion, J.)

On 2000, Vergara was hired by Hammonia for its foreign principal, Atlantic Marine. He was assigned to work on board

the vessel British Valour under contract for nine months, with a basic monthly salary of US$ 642.00 as a pumpman. The

petitioner was a member of the Associated Marine Officers’ and Seaman’s Union of the Philippines ( AMOSUP ).

AMOSUP had a collective bargaining agreement ( CBA ) with Atlantic Marine, represented in this case by Hammonia.

While attending to a defective hydraulic valve, he felt he was losing his vision. He complained to the Ship Captain that

he was seeing black dots and hairy figures floating in front of his right eye. His condition developed into a gradual visual

loss. The ship’s medical log entered his condition as “internal bleeding in the eye” or “glaucoma.” He was given eye

drops to treat his condition. He went on furlough in Port Galveston, Texas and consulted a physician who diagnosedhim to be suffering from “vitreal hemorrhage with small defined area of retinal traction. Differential diagnosis includes

incomplete vitreal detachment ruptured macro aneurism and valsulva retinopathy.”

When back at home, the company-designated physician, Dr. Robert D. Lim of the Marine Medical Services of the

Metropolitan Hospital, confirmed the correctness of the diagnosis at Port Galveston, Texas. Dr. Lim then referred the

petitioner to an ophthalmologist at the Chinese General Hospital who subjected the petitioner’s eye to focal laser

treatment; vitrectomy with fluid gas exchange and a second session of focal laser treatment Then, the ophthalmologist


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pronounced Vergara fit to resume his seafaring duties per the report of Dr. Robert D. Lim. Vergara then executed a

“certificate of fitness for work” in the presence of Dr. Lim.

Claiming that he continued to experience gradual visual loss despite the treatment, he sought a second opinion from

another ophthalmologist, Dr. Patrick Rey R. Echiverri, who was not a company-designated physician. Dr. Echiverri

gave the opinion that the petitioner was not fit to work as a pumpman because the job could precipitate the resurgence

of his former condition. Then petitioner submitted himself to another examination, this time by Dr. Efren R. Vicaldo, a

physician who was not also designated by the company. Dr. Vicaldo opined that although the petitioner was fit to work,he had a Grade X (20.15%) disability which he considered as permanent partial disability.

Armed with these two separate diagnoses, the petitioner demanded from his employer payment of disability and

sickness benefits, pursuant to the POEA Standard Employment Contract , and the existing CBA in the company. The

company did not heed his demand. The LA found in favor of Vergara. The NLRC reversed it. The CA dismissed

petition by Vergara.

ISSUE: Is Vergara entitled to permanent total disability benefits by virtue of the findings of 2 non-company-

designated physicians?

RULING:

NO.

As we outlined above, a temporary total disability only becomes permanent when so declared by the

company physician within the periods he is allowed to do so, or upon the expiration of the maximum 240-day

medical treatment period without a declaration of either fitness to work or the existence of a permanent

disability. In the present case, while the initial 120-day treatment or temporary total disability period was exceeded, the

company-designated doctor duly made a declaration well within the extended 240-day period that Vergara was fit to

work. Viewed from this perspective, both the NLRC and CA were legally correct when they refused to recognize any

disability because Vergara had already been declared fit to resume his duties. In the absence of any disability after his

temporary total disability was addressed, any further discussion of permanent partial and total disability, their existence,

distinctions and consequences, becomes a surplusage that serves no useful purpose.

Thus, while Vergara had the right to seek a second and even a third opinion, the final determination of whose

decision must prevail must be done in accordance with an agreed procedure. Unfortunately, Vergara did not

avail of this procedure; hence, we have no option but to declare that the company-designated doctor’s certification is

the final determination that must prevail. We do so mindful that the company had exerted real effort to provide Vergara

with medical assistance, such that he finally ended with a 20/20 vision. The company-designated physician, too,

monitored his case from the beginning and we cannot simply throw out his certification, as Vergara suggested, because

he has no expertise in ophthalmology. Under the facts of this case, it was the company-designated doctor who referred

his case to the proper medical specialist whose medical results are not essentially disputed; who monitored Vergara’s

case during its progress; and who issued his certification on the basis of the medical records available and the results

obtained.

Crystal Shipping was a case where the seafarer was completely unable to work for three years and was undisputably unfit

for sea duty “due to respondent’s need for regular medical check-up and treatment which would not be available if he

were at sea.” While the case was not clear on how the initial 120-day and subsequent temporary total disability period

operated, what appears clear is that the disability went beyond 240 days without any declaration that the

seafarer was fit to resume work. Under the circumstances, a ruling of permanent and total disability was

called for, fully in accordance with the operation of the period for entitlement that we described above. Viewed

from this perspective, Vergara cannot cite the Crystal Shipping ruling as basis for his claim for permanent total disability.


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Remigio v. NLRC

On November 27, 1997, petitioner Bernardo Remigio entered into a Contract of Employment as a drummer with

respondent C.F. Sharp Crew Management, Inc. (respondent agency), for and in behalf of its foreign principal, co-

respondent New Commodore Cruise Line, Ltd. (respondent principal).

Petitioner was diagnosed of severe coronary artery disease. A triple coronary artery bypass was performed on petitioner

on April 2, 1998 by a Dr. Everson.

After twelve (12) days of confinement, petitioner's cardiologist found him "not fit for sea duty" and recommended for

him to be "[r]epatriated to home port for follow up with a cardiologist." He was repatriated to Manila on April 23,

1998.

In a letter dated June 25, 1998 addressed to the manager of respondent agency, Jose Enrique P. Desiderio, the

company-designated physician, Dr. Leticia C. Abesamis, of the American Outpatient Clinic wrote, “He may go back to sea

duty as piano player or guitar player after 8-10 more months. He was unfit from April 27, 1998 to June 25, 1998.”

ISSUES.

1. Whether heart ailment suffered during the term of the contract is compensable under the 1996 POEA SEC

even if there is no proof of work-connection.

2. Whether the concept of permanent total disability under the Labor Code applies to the case of a seafarer's

claim for disability benefits under the 1996 POEA SEC.

HELD.

1. YES.

"Disability" is generally defined as "loss or impairment of a physical or mental function resulting from injury or

sickness." Clearly, "disability" is not synonymous with "sickness" or "illness," the former being a potential effect of the

latter. The schedule in Sec. 30 of the POEA SEC is a Schedule of Disability or Impediment for Injuries Suffered andDiseases or Illness Contracted. It is not a list of compensable sicknesses. Unlike the 2000 POEA SEC, nowhere in the

1996 POEA SEC is there a list of "Occupational Diseases."

The unqualified phrase "during the term" in Section 20(B) of the 1996 POEA SEC covers all injury or illness occurring

in the lifetime of the contract. The injury or illness need not be shown to be work-related. In Sealanes Marine Services,

Inc. v. NLRC, we categorically held: “Significantly, under the contract, compensability of the death or illness of

seam[e]n need not be dependent upon whether it is work connected or not. Therefore, proof that the working

conditions increased the risk of contracting a disease or illness, is not required to entitle a seaman who dies during the

term thereof by reason of such disease or illness, of the benefits stipulated thereunder which are, under Section C(2) of

the same Circular No. 2, separate and distinct from, and in addition to whatever benefits which the seaman is entitled to

under Philippine laws.

2. YES.

The standard employment contract for seafarers was formulated by the POEA pursuant to its mandate under E.O. No.

247 to "secure the best terms and conditions of employment of Filipino contract workers and ensure compliance

therewith" and to "promote and protect the well-being of Filipino workers overseas." Section 29 of the 1996 POEA

SEC itself provides that "[a]ll rights and obligations of the parties to [the] Contract, including the annexes thereof, shall

be governed by the laws of the Republic of the Philippines, international conventions, treaties and covenants where the

Philippines is a signatory." Even without this provision, a contract of labor is so impressed with public interest that the


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New Civil Code expressly subjects it to "the special laws on labor unions, collective bargaining, strikes and lockouts,

closed shop, wages, working conditions, hours of labor and similar subjects."

In ECC v. Sanico, GSIS v. CA, and Bejerano v. ECC it was held that "disability should not be understood more on its

medical significance but on the loss of earning capacity. Permanent total disability means disablement of an employee

to earn wages in the same kind of work, or work of similar nature that [he] was trained for or accustomed to perform,

or any kind of work which a person of [his] mentality and attainment could do. It does not mean absolute

helplessness." It likewise cited Bejerano v. ECC, that in a disability compensation, it is not the injury which iscompensated, but rather it is the incapacity to work resulting in the impairment of one's earning capacity.

JMM PROMOTIONS & MANAGEMENT, INC. v. NATIONAL LABOR RELATIONS COMMISSION

AND ULPIANO L. DE LOS SANTOS

G.R. No. 109835, November 22, 1993, FIRST DIVISION, ( CRUZ, J.)

The case raises the validity of the order of respondent National Labor Relations Commission dated October 30, 1992,

dismissing the petitioner's appeal from a decision of the Philippine Overseas Employment Administration on theground of failure to post the required appeal bond.

The petitioner insists that the appeal bond is not necessary in the case of licensed recruiters for overseas employment

because they are already required under Section 4, Rule II, Book II of the POEA Rules not only to pay a license fee of

P30,000.00 but also to post a cash bond of P100,000.00 and a surety bond of P50,000.00. In addition, the petitioner

claims it has placed in escrow the sum of P200,000.00 with the Philippine National Bank in compliance with Section 17,

Rule II, Book II of the same Rule, "to primarily answer for valid and legal claims of recruited workers as a result of

recruitment violations or money claims."

The Solicitor General sustains the appeal bond requirement but suggests that the rules cited by the NLRC are applicable

only to decisions of the Labor Arbiters and not of the POEA.

ISSUE: Having posted the total bond of P150,000.00 and placed in escrow the amount of P200,000.00 as required by

the POEA Rules, was the petitioner still required to post an appeal bond to perfect its appeal from a decision of the

POEA to the NLRC?

HELD:

YES.

The POEA Rules are clear. A reading thereof readily shows that in addition to the cash and surety bonds and

the escrow money, an appeal bond in an amount equivalent to the monetary award is required to perfect an appeal from

a decision of the POEA. Obviously, the appeal bond is intended to further insure the payment of the monetary award

in favor of the employee if it is eventually affirmed on appeal to the NLRC.

It is true that the cash and surety bonds and the money placed in escrow are supposed to guarantee the payment of all

valid and legal claims against the employer, but these claims are not limited to monetary awards to employees whose

contracts of employment have been violated. The POEA can go against these bonds also for violations by the recruiter

of the conditions of its license, the provisions of the Labor Code and its implementing rules, E.O. 247 (reorganizing the

POEA) and the POEA Rules, as well as the settlement of other liabilities the recruiter may incur.

As for the escrow agreement, it was presumably intended to provide for a standing fund, as it were, to be used only as a

last resort and not to be reduced with the enforcement against it of every claim of recruited workers that may be

http://void%280%29/http://void%280%29/http://void%280%29/http://void%280%29/


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adjudged against the employer. This amount may not even be enough to cover such claims and, even if it could initially,

may eventually be exhausted after satisfying other subsequent claims.

As it happens, the decision sought to be appealed grants a monetary award of about P170,000.00 to the dismissed

employee, the herein private respondent. The standby guarantees required by the POEA Rules would be depleted if this

award were to be enforced not against the appeal bond but against the bonds and the escrow money, making them

inadequate for the satisfaction of the other obligations the recruiter may incur.

Indeed, it is possible for the monetary award in favor of the employee to exceed the amount of P350,000.00, which is

the sum of the bonds and escrow money required of the recruiter.

It is true that these standby guarantees are not imposed on local employers, as the petitioner observes, but there is a

simple explanation for this distinction. Overseas recruiters are subject to more stringent requirements because of the

special risks to which our workers abroad are subjected by their foreign employers, against whom there is usually no

direct or effective recourse. The overseas recruiter is solidarily liable with the foreign employer. The bonds and the

escrow money are intended to insure more care on the part of the local agent in its choice of the foreign principal to

whom our overseas workers are to be sent.

It is a principle of legal hermeneutics that in interpreting a statute (or a set of rules as in this case), care should be taken

that every part thereof be given effect, on the theory that it was enacted as an integrated measure and not as a hodge-

podge of conflicting provisions. Ut res magis valeat quam pereat.[2] Under the petitioner's interpretation, the appeal bond

required by Section 6 of the aforementioned POEA Rule should be disregarded because of the earlier bonds and

escrow money it has posted. The petitioner would in effect nullify Section 6 as a superfluity but we do not see any such

redundancy; on the contrary, we find that Section 6 complements Section 4 and Section 17. The rule is that a

construction that would render a provision inoperative should be avoided; instead, apparently inconsistent provisions

should be reconciled whenever possible as parts of a coordinated and harmonious whole.

Accordingly, we hold that in addition to the monetary obligations of the overseas recruiter prescribed in Section 4, Rule

II, Book II of the POEA Rules and the escrow agreement under Section 17 of the same Rule, it is necessary to post theappeal bond required under Section 6, Rule V, Book VII of the POEA Rules, as a condition for perfecting an appeal

from a decision of the POEA.

Every intendment of the law must be interpreted in favor of the working class, conformably to the mandate of the

Constitution. By sustaining rather than annulling the appeal bond as a further protection to the claimant employee, this

Court affirms once again its commitment to interests of labor.

WHEREFORE, the petition is DISMISSED

BECMEN SERVICE EXPORTER AND PROMOTION, INC. v . SPOUSES SIMPLICIO AND MILA

CUARESMA, et al.G.R. No. 182978-79, April 7, 2009, THIRD DIVISION (Ynares-Santiago, J.)

Jasmin Cuaresma was deployed by Becmen to serve as assistant nurse in Al-Birk Hospital in the Kingdom of Saudi

Arabia (KSA), for a contract duration of 3 years, with a corresponding salary of US$247.00 per month. Over a year

later, she died allegedly of poisoning. Jessie Fajardo, a co-worker of Jasmin, narrated that Jasmin was found dead by a


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female cleaner lying on the floor inside her dormitory room with her mouth foaming and smelling of poison. Based on

the police report and the medical report of the examining physician of the Al-Birk Hospital, who conducted an autopsy

of Jasmin's body, the likely cause of her death was poisoning.

Jasmin's body was repatriated to Manila. The following day, the City Health Officer (CHO) of Cabanatuan City

conducted an autopsy and the resulting medical report indicated that Jasmin died under violent circumstances, and not

poisoning as originally found by the KSA examining physician. The CHO found that Jasmin had abrasions at her inner

lip and gums; lacerated wounds and abrasions on her left and right ears; lacerated wounds and hematoma (contusions)on her elbows; abrasions and hematoma on her thigh and legs; intra-muscular hemorrhage at the anterior chest; rib

fracture; puncture wounds; and abrasions on the labia minora of the vaginal area. Jasmin's remains were exhumed and

examined by the NBI. The toxicology report of the NBI, however, tested negative for non-volatile, metallic poison and

insecticides.

Cuaresmas filed a complaint against Becmen and its principal in the KSA, Rajab & Silsilah Company (Rajab), claiming

death and insurance benefits, as well as moral and exemplary damages for Jasmin's death. In their complaint, the

Cuaresmas claim that Jasmin's death was work-related, having occurred at the employer's premises. While the case was

pending, Becmen filed a manifestation and motion for substitution alleging that Rajab terminated their agency

relationship and had appointed White Falcon Services, Inc. (White Falcon) as its new recruitment agent in the

Philippines. Thus, White Falcon was impleaded as respondent as well, and it adopted and reiterated Becmen's

arguments in the position paper it subsequently filed. The LA concluded that Jasmin committed suicide however the

NLRC reversed the decision which was later affirmed by the CA.

ISSUE: Are the Cuaresmas entitled to monetary claims, by way of benefits and damages, for Jasmin’s death?

HELD:

YES. The Court holds that the Cuaresmas are entitled to moral damages, which Becmen and White Falcon are

jointly and solidarily liable to pay, together with exemplary damages for wanton and oppressive behavior, and by way of

example for the public good.

Becmen and White Falcon, as licensed local recruitment agencies, miserably failed to abide by the provisions of

R.A. 8042. Recruitment agencies are expected to extend assistance to their deployed OFWs, especially those in distress.

Instead, they abandoned Jasmin's case and allowed it to remain unsolved to further their interests and avoid anticipated

liability which parents or relatives of Jasmin would certainly exact from them. They willfully refused to protect and tend

to the welfare of the deceased Jasmin, treating her case as just one of those unsolved crimes that is not worth wasting

their time and resources on. The evidence does not even show that Becmen and Rajab lifted a finger to provide legal

representation and seek an investigation of Jasmin's case. Worst of all, they unnecessarily trampled upon the person and

dignity of Jasmin by standing pat on the argument that Jasmin committed suicide, which is a grave accusation given its

un-Christian nature.

We cannot reasonably expect that Jasmin's parents should be the ones to actively pursue a just resolution of her case inthe KSA, unless they are provided with the finances to undertake this herculean task. Sadly, Becmen and Rajab did not

lend any assistance at all in this respect. The most Jasmin's parents can do is to coordinate with Philippine authorities as

mandated under R.A. 8042, obtain free legal assistance and secure the aid of the Department of Foreign Affairs, the

Department of Labor and Employment, the POEA and the OWWA in trying to solve the case or obtain relief, in

accordance with Section 23[27] of R.A. 8042. To our mind, the Cuaresmas did all that was within their power, short of

actually flying to the KSA. Indeed, the Cuaresmas went even further. To the best of their abilities and capacities, they

ventured to investigate Jasmin's case on their own: they caused another autopsy on Jasmin's remains as soon as it

arrived to inquire into the true cause of her death. Beyond that, they subjected themselves to the painful and distressful


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experience of exhuming Jasmin's remains in order to obtain another autopsy for the sole purpose of determining

whether or not their daughter was poisoned. Their quest for the truth and justice is equally to be expected of all loving

parents. All this time, Rajab and Becmen - instead of extending their full cooperation to the Cuaresma family - merely

sat on their laurels in seeming unconcern.

Thus, more than just recruiting and deploying OFWs to their foreign principals, recruitment agencies have equally

significant responsibilities. In a foreign land where OFWs are likely to encounter uneven if not discriminatory treatment

from the foreign government, and certainly a delayed access to language interpretation, legal aid, and the Philippineconsulate, the recruitment agencies should be the first to come to the rescue of our distressed OFWs since they know

the employers and the addresses where they are deployed or stationed. Upon them lies the primary obligation to protect

the rights and ensure the welfare of our OFWs, whether distressed or not. Who else is in a better position, if not these

recruitment agencies, to render immediate aid to their deployed OFWs abroad?

Private employment agencies are held jointly and severally liable with the foreign-based employer for any violation of

the recruitment agreement or contract of employment. This joint and solidary liability imposed by law against

recruitment agencies and foreign employers is meant to assure the aggrieved worker of immediate and sufficient

payment of what is due him.If the recruitment/placement agency is a juridical being, the corporate officers and

directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or

partnership for the aforesaid claims and damages. White Falcon's assumption of Becmen's liability does not

automatically result in Becmen's freedom or release from liability. This has been ruled in ABD Overseas Manpower

Corporation v. NLRC . Instead, both Becmen and White Falcon should be held liable solidarily, without prejudice to each

having the right to be reimbursed under the provision of the Civil Code that whoever pays for another may demand

from the debtor what he has paid.

PEOPLE OF THE PHILIPPINES v. FRANCISCO HERNANDEZ (at large), KARL REICHL and

YOLANDA GUTIERREZ DE REICHL

In April 1993, 8 informations for syndicated and large scale illegal recruitment and 8 informations for estafa were filed against accused-appellants, spouses Karl and Yolanda Reichl, together with Francisco Hernandez. Only the

Recihl spouses were tried and convicted by the trial court while Hernandez remained at large.

The evidence for the prosecution consisted of the testimonies of private complainants; a certification from the POEA

that Francisco Hernandez, Karl Reichl and Yolanda Gutierrez Reichl in their personal capacities were neither licensed

nor authorized to recruit workers for overseas employment; the receipts for the payment made by private complainants;

and two documents signed by the Reichl spouses where they admitted that they promised to secure Austrian tourist

visas for private complainants and that they would return all the expenses incurred by them if they are not able to leave

by March 24, 1993, and where Karl Reichl pledged to refund to private complainants the total sum of P1,388,924.00

representing the amounts they paid for the processing of their papers.

In his defense, Karl denied knowledg e about Hernandez’s recruitment activities and said that the latter merely

told him that he wanted to help his relatives to go to Europe. As regards the document allegedly signed by Karl Reichl,

he claimed that he was made to sign under duress and threat that Hernandez would harm his family if he refused to sign

the said document.

Trial court convicted the spouses of 1 count of syndicated and large scale illegal recruitment and 6 counts of estafa.


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ISSUE.

1.

WON trial court erred in finding accused-appellant Karl Reichl guilty of the crimes of estafa and illegal

recruitment committed by syndicate and in large scale based on the evidence presented by the prosecution

which miserably failed to establish guilt beyond reasonable doubt.

2.

WON the trial court erred in convicting the accused-appellant of the crime of illegal recruitment on a large

scale by cumulating five separate cases of illegal recruitment each filed by a single private complainant.

HELD.1.

NO. Article 38 of the Labor Code defines illegal recruitment as "any recruitment activities, including the

prohibited practices enumerated under Article 34 of (the Labor Code), to be undertaken by non-licensees

or non-holders of authority." The term "recruitment and placement" refers to any act of canvassing,

enlisting, contracting, transporting, utilizing, hiring or procuring workers, including referrals, contract

services, promising or advertising for employment, locally or abroad, whether for profit or not, provided

that any person or entity which, in any manner, offers or promises for a fee employment to two or more

persons shall be deemed engaged in recruitment and placement. The law imposes a higher penalty when

the illegal recruitment is committed by a syndicate or in large scale as they are considered an offense

involving economic sabotage. Illegal recruitment is deemed committed by a SYNDICATE if carried out

by a group of three (3) or more persons conspiring and/or confederating with one another in

carrying out any unlawful or illegal transaction, enterprise or scheme . It is deemed committed in

LARGE SCALE if committed against three (3) or more persons individually or as a group .

In the case at bar, the prosecution was able to prove beyond reasonable doubt that accused-appellants engaged in

activities that fall within the definition of recruitment and placement under the Labor Code. The evidence on record

shows that they promised overseas employment to private complainants and required them to prepare the necessary

documents and to pay the placement fee, although they did not have any license to do so. There is illegal recruitment

when one who does not possess the necessary authority or license gives the impression of having the ability to send a

worker abroad.

It appears that the three accused worked as a team and they conspired and cooperated with each other in recruitingdomestic helpers purportedly to be sent to Italy. Francisco Hernandez introduced Karl and Yolanda Reichl to the job

applicants as his business partners. Karl and Yolanda Reichl themselves gave assurances to private complainants that

they would seek employment for them in Italy. Francisco Hernandez remitted the payments given by the applicants to

the Reichl spouses and the latter undertook to process the applicants' papers. There being conspiracy, each of the

accused shall be equally liable for the acts of his co-accused even if he himself did not personally take part in its

execution.

2. NO. We note that each information was filed by only one complainant. We agree with accused-appellants

that they could not be convicted for illegal recruitment committed in large scale based on several

informations filed by only one complainant. The Court held in People vs. Reyes:

“x x x When the Labor Code speaks of illegal recruitment ‘committed against three (3) or more persons individually oras a group,’ it must be understood as referring to the number of complainants in each case who are complainants

therein, otherwise, prosecutions for single crimes of illegal recruitment can be cumulated to make out a case of large

scale illegal recruitment. In other words, a conviction for large scale illegal recruitment must be based on a

finding in each case of illegal recruitment of three or more persons whether individually or as a group.”

This, however, does not serve to lower the penalty imposed upon accused-appellants. The charge was not only for

illegal recruitment committed in large scale but also for illegal recruitment committed by a syndicate which was proved

the spouses Reichl and Hernandez indeed conspired with each other in convincing the complainants. Thus, we hold


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that accused-appellants should be held liable for illegal recruitment committed by a syndicate which is also punishable

by life imprisonment and a fine of one hundred thousand pesos (P100,000.00) under Article 39 of the Labor Code.

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SAMINA ANGELES Y CALMA,

ACCUSED-APPELLANT.

Maria Tolosa Sardeña was working in Saudi Arabia when she received a call from her sister, Priscilla Agoncillo, who was

in Paris, France. Priscilla advised Maria to return to the Philippines and await the arrival of her friend, accused-

appellant Samina Angeles, who will assist in processing her travel and employment documents to Paris,

France. Heeding her sister’s advice, Maria immediately returned to the Philippines.

Marceliano Tolosa who at that time was in the Philippines likewise received instructions from his sister Priscilla to meet

accused-appellant who will also assist in the processing of his documents for Paris, France.

During the meeting of Maria, Marceliano and Angeles, accused-appellant asked if they had the money required for the

processing of their documents. Maria and Marceliano gave the money in their subsequent meetings.

Analyn Olpindo met accused-appellant in Belgium. At that time, Analyn was working in Canada but she went to

Belgium to visit her in-laws. After meeting accused-appellant, Analyn Olpindo called up her sister, Precila Olpindo, in

the Philippines and told her to meet accused-appellant upon the latter’s arrival in the Philippines because accused -

appellant can help process her documents for employment in Canada.

Precila Olpindo eventually met accused-appellant at the Expert Travel Agency on September 7, 1994. Accused-

appellant asked for the amount of $4,500.00, but Precila was only able to give $2,500.00.

Accused-appellant told Precila Olpindo and Vilma Brina that it was easier to complete the processing of their papers if

they start from Jakarta, Indonesia rather than from Manila. Thus, Precila Olpindo, Vilma Brina and accused-appellant

flew to Jakarta, Indonesia. However, accused-appellant returned to the Philippines after two days, leaving behindPrecila and Vilma. They waited for accused-appellant in Jakarta but the latter never returned. Precila and Vilma

eventually came home to the Philippines on November 25, 1994.

When she arrived in the Philippines, Precila tried to get in touch with accused-appellant at the Expert Travel Agency,

but she could not reach her. Meanwhile, Maria and Marceliano Tolosa also began looking for accused-appellant after

she disappeared with their money.

The Philippine Overseas Employment Agency presented a certification to the effect that accused-appellant was not duly

licensed to recruit workers here and abroad.

Accused-appellant Samina Angeles y Calma was charged with four (4) counts of estafa and one (1) count of illegalrecruitment.

In her defense, Angeles averred that, contrary to the prosecution’s allegations, she never represented to the

complainants that she can provide them with work abroad. She insisted that she was a marketing consultant and an

international trade fair organizer. In June 1994, she went to Paris, France to organize a trade fair. There she met

Priscilla Agoncillo, a domestic helper, and they became friends. Priscilla asked her to assist her siblings, Maria and

Marceliano, particularly in the processing of their travel documents for France. Accused-appellant told Priscilla that she

can only help in the processing of travel documents and nothing more. It was Priscilla who promised employment to


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Maria and Marceliano. She received money from complainants not in the form of placement fees but for the cost of

tickets, hotel accommodations and other travel requirements.

ISSUE. Is the accused guilty of illegal recruitment?

HELD.

NO. Article 13(b), of the Labor Code provides, thus:

(b) “Recruitment and placement” refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiringor procuring workers, and includes referrals, contract services, promising or advertising for employment locally or

abroad, whether for profit or not: Provided, that any person or entity which, in any manner, offers or promises for a fee

employment to two or more persons shall be deemed engaged in recruitment and placement.

To prove illegal recruitment, it must be shown that the accused-appellant gave complainants the distinct impression that

he had the power or ability to send complainants abroad for work such that the latter were convinced to part with their

money in order to be employed. To be engaged in the practice of recruitment and placement, it is plain that there must

at least be a promise or offer of an employment from the person posing as a recruiter whether locally or abroad.

In the case at bar, none of the complainants testified that accused-appellant offered jobs abroad. Hence, accused-

appellant Samina Angeles cannot be lawfully convicted of illegal recruitment.

SAMEER OVERSEAS PLACEMENT AGENCY, INC., PETITIONER, VS. JOY C. CABILES,

RESPONDENT.

G.R. No. 170139, August 05, 2014, EN BANC, LEONEN, J.

Responding to published ad, respondent Cabiles, submitted her application for a quality control job in Taiwan to

Sameer Overseas Placement Agency, Inc. Afterwards, Joy was later asked to sign a one-year employment contract for a

monthly salary of NT$15,360.00 (New Taiwan Dollar). She alleged that Sameer Overseas Agency (SOPA) required her

to pay a placement fee of P70,000.00 when she signed the employment contract. Joy was deployed to work for Taiwan Wacoal, Co. Ltd. (Wacoal) on June 26, 1997. She alleged that in her employment contract, she agreed to work as quality

control for one year. However in Taiwan, she was asked to work as a cutter. Sameer Overseas Placement Agency claims

that on July 14, 1997, a certain Mr. Huwang from Wacoal informed Joy, without prior notice that she was terminated

and that ―she should immediately report to their office to get her salary and passport. She was asked to prepare for

immediate repatriation. Joy claims that she was told that from June 26 to July 14, 1997, she only earned a total of

NT$9,000.According to her, Wacoal deducted NT$3,000 to cover her plane ticket to Manila.

Claiming that she was illegally dismissed, Joy filed a complaint with the NLRC asking for the return of her placement

fee, the withheld amount for repatriation costs, payment of her salary for 23 months as well as moral and exemplary

damages against SOPA and its principal, Wacoal. SOPA in its defense claimed that it did not ask for a placement fee,

the termination was due to the inefficiency of Cabiles, and that that Wacoal's accreditation with SOPA had already beentransferred to the Pacific Manpower & Management Services, Inc. (Pacific) as of August 6, 1997. Thus, petitioner

asserts that it was already substituted by Pacific Manpower.

The labor arbiter dismissed the complaint on the ground that the complaint was based on mere allegation. On appeal,

the NLRC overturned the decision and reiterated the doctrine that the burden of proof to show that the dismissal was


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based on a just or valid cause belongs to the employer5. CA affirmed the decision and remanded the case to NLRC to

address the validity of SOPA’s allegations against Pacific.

ISSUE.

1. WON respondent was illegally dismissed.

2. WON respondent was entitled to the amount for the unexpired period of the contract due to the illegal

dismissal.

DECISION.

1. YES, respondent was illegally dismissed. Indeed, employers have the prerogative to impose productivity and

quality standards at work. This prerogative, however, should not be abused. It is tempered with the employee’s

right to security of tenure as guaranteed by the constitution in Article XIII, Section 3. This public policy should

be borne in mind in this case because to allow foreign employers to determine for and by themselves whether

an overseas contract worker may be dismissed on the ground of illness would encourage illegal or arbitrary pre-

termination of employment contracts. In the case herein, SOPA failed to show that there was just cause for

causing Joy‘s dismissal. The employer, Wacoal, also failed to accord her due process of law.

Established is the rule that lex loci contractus (the law of the place where the contract is made) governs in this

jurisdiction. There is no question that the contract of employment in this case was perfected here in the Philippines.

Therefore, the Labor Code, its implementing rules and regulations, and other laws affecting labor apply in this case.

On Illegal Dismissal

Article 282 of the Labor Code enumerates the just causes of termination by the employer. Thus:

Art. 282. Termination by employer. An employer may terminate an employment for any of the following causes:

a)

Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or

representative in connection with his work;

b)

Gross and habitual neglect by the employee of his duties;

c)

Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorizedrepresentative;

d) Commission of a crime or offense by the employee against the person of his employer or any

immediate member of his family or his duly authorized representatives; and

e) Other causes analogous to the foregoing.

Petitioner‘s allegation that respondent was inefficient in her work and negligent in her duties may, therefore, constitute

a just cause for termination under Article 282(b), but only if petitioner was able to prove it. The burden of proving that

there is just cause for termination is on the employer. ―The employer must affirmatively show rationally adequate

evidence that the dismissal was for a justifiable cause. Failure to show that there was valid or just cause for termination

would necessarily mean that the dismissal was illegal. To show that dismissal resulting from inefficiency in work is valid,

it must be shown that: (1) the employer has set standards of conduct and workmanship against which the employee will

be judged; (2) the standards of conduct and workmanship must have been communicated to the employee; and 3) thecommunication was made at a reasonable time prior to the employee‘s performance assessment. In this case, petitioner

merely alleged that respondent failed to comply with her foreign employer‘s work requirements and was inefficient in

her work.

5 The National Labor Relations Commission awarded respondent only three (3) months’ worth of salary in the amount of NT$46,080, the

reimbursement of the NT$3,000 withheld from her, and attorney‘s fees of NT$300 .


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On deprivation of Due Process

A valid dismissal requires both a valid cause and adherence to the valid procedure of dismissal. The employer is

required to give the charged employee at least two written notices before termination. One of the written notices must

inform the employee of the particular acts that may cause his or her dismissal. The other notice must inform the

employee of the employer‘s decision. Aside from the notice requirement, the employee must also be given ―an

opportunity to be heard. Petitioner failed to comply with the twin notices and hearing requirements. Respondent started

working on June 26, 1997. She was told that she was terminated on July 14, 1997 effective on the same day and barely a

month from her first workday. She was also repatriated on the same day that she was informed of her termination.(2) Respondent is entitled for the amount of the unexpired period of the contract due to the illegal dismissal. Sec. 106 of

Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, states that

overseas workers who were terminated without just, valid, or authorized cause shall be entitled to the full

reimbursement of his placement fee with interest of twelve (12%) per annum, plus his salaries for the unexpired portion

of his employment contract or for three (3) months for every year of the unexpired term, whichever is less.

Further, Sec. 15 of RA 8042 states that ―repatriation of the worker and the transport of his [or her] personal

belongings shall be the primary responsibility of the agency which recruited or deployed the worker overseas. The

exception is when termination of employment is due solely to the fault of the worker, which as we have established, is

not the case.

However, the award of the three-month equivalent of respondent’s salary should, however, be increased to the amount

equivalent to the unexpired term of the employment contract. Serrano v. Gallant Maritime Services, Inc. and

Marlow Navigation Co., Inc ., this court ruled that the clause ―”or for three (3) months for every year of the

unexpired term, whichever is less 7 is unconstitutional for violating the equal protection clause and substantive due

process. In such case, the court rule that there are no distinctions between fixed-period overseas workers compared to

fixed-period local workers, and overseas workers with employment contracts of less than one year and overseas workers

with employment contracts of at least one year. Overseas workers regardless of their classifications are entitled to

security of tenure, at least for the period agreed upon in their contracts. This means that they cannot be dismissed

before the end of their contract terms without due process.

This is so notwithstanding the fact that the clause “for three (3) months for every year of the unexpired term, whichever

is less” has been was reinstated in Republic Act No. 8042 upon promulgation of Republic Act No. 10022 in 2010. Such

provision is still unconstitutional for when a law or a provision of law is null because it is inconsistent with the

Constitution, the nullity cannot be cured by reincorporation or reenactment of the same or a similar law or provision. A

law or provision of law that was already declared unconstitutional remains as such unless circumstances have so

changed as to warrant a reverse conclusion especially in this case where there are no substantial circumstances

considered to merit the reinstatement of the provision.

On the interest rate, the BSP Circular No. 799 of June 21, 2013, which revised the interest rate for loan or forbearance

from 12% to 6% in the absence of stipulation, applies in this case.

PETITION DENIED. SOPA was ordered to pay respondent the amount equivalent to her salary for the unexpiredportion of her employment contract at an interest of 6% per annum from the finality of the judgment.

6 The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several.

This provision shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. 7 Which had the effect of those who are illegally dismissed with less than one year left in their contracts shall be entitled to their salaries for the

entire unexpired portion thereof, while those who are illegally dismissed with one year or more remaining in their contracts shall be covered by thereinstated clause, and their monetary benefits limited to their salaries for three months only

digests re migrant workers

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