EQUI-ASIA PLACEMENT, INC.
, Petitioner, versus POLO is awaiting signed statements from the
DEPARTMENT OF FOREIGN AFFAIRS (DFA)
represented by the HON. DOMINGO L. SIAZON,
JR., SECRETARY, DEPARTMENT OF LABOR AND
EMPLOYMENT (DOLE), represented by HON.
BIENVENIDO LAGUESMA, Respondents. 2006
Sep 19 1st Division G.R. No. 152214
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari of the
Decision dated 4 October 2001[1] and Resolution dated 18
February 2002 of the Court of Appeals in CA-G.R. SP No.
61904. The Decision denied petitioner’s petition for certiorari
while the Resolution denied its Motion for Reconsideration.
The Court of Appeals summarized the facts of this
case in this wise:
On September 16, 2000, Manny dela Rosa Razon, a
native of Lemery, Batangas and an overseas Filipino worker,
died of acute cardiac arrest while asleep at the dormitory of
the Samsong Textile Processing Factory in South Korea.
Informed thereof, the Philippine Overseas Labor Office
(POLO) at South Korea immediately relayed the incident to
the Philippine Embassy in South Korea. Forthwith, the
[Labor] Attaché of the Philippine Embassy dispatched a
letter to Eleuterio N. Gardiner, administrator of the Overseas
Workers Welfare Administration (OWWA). The letter reads:
“VERY URGENT, POLO has recently received a report that
OFW Manny dela Rosa RAZON, an undocumented worker,
died last Saturday, 16 September, from an apparent
pancreatic attack or ‘bangungot.’
According to the verbal reports of Moises and Ronald
Recarde, Manny’s co-workers, he was found already lifeless
inside their quarters at around 11:00 in the morning of the
above date. They rushed him to Uri Hospital where the
Doctor declared him dead on arrival.
Per information gathered, the deceased is single, 29
years old, from Bukal, Lemery, Batangas. His next-of-kins
are Mrs. Rowena Razon (Auntie) and Mr. Razon (Uncle) with
telephone number (043)411-2308.
“In connection with your telegram, dated 09/22/2000,
aforementioned workers who promised to send it by fax this
afternoon.
We are also coordinating with the deceased’s
employer for documentation requirements and financial
assistance for the repatriation of the remains.
We will highly appreciate if Home Office could advise
the next-of-kins of the urgent need to issue a Special Power
of Attorney (SPA) to facilitate the repatriation requirements
of the subject.
In anticipation of the next-of-kins’ likely move to seek
financial assistance from OWWA for the repatriation of their
loved [one], please be advised in advance that we will need
about US$4,000.00 to repatriate the cadaver (to include
hospital and morgue costs) to Manila. xxx”
In turn, the OWWA, through Atty. Cesar L. Chavez, indorsed
the matter, for appropriate action, to Director R. Casco of the
Welfare Employment Office of the Philippine Overseas
Employment Administration (WEO-POEA).
Upon verification by the WEO-POEA on its data base, it was
discovered that Manny Razon was recruited and deployed
by petitioner Equi-Asia Placement, Inc., and was sent to
South Korea on April 3, 2000 to work-train at Yeongjin
Machinery, Inc. Thereupon, POEA addressed the herein
first assailed telegram-directive dated September 22, 2000
to the President/General Manager of the petitioner. We
quote the telegram:
“PLEASE PROVIDE PTA [Prepaid Ticket Advice] FOR THE
REPATRIATION OF REMAINS AND BELONGINGS OF
OFW MANNY DELA ROSA RAZON AS PER REQUEST OF
PHILIPPINE EMBASSY, KOREA, YOU CAN COORDINATE
WITH YOUR FOREIGN EMPLOYER AND TO WAD/OWWA
(MLA) AS REGARDS TO THIS MATTER. YOU ARE GIVEN
TWO (2) DAYS FROM RECEIPT HEREOF WITHIN WHICH
TO PROVIDE SAID TICKET AND ASSISTANCE, KINDLY
SUBMIT YOUR REPORT TO ASSISTANCE AND
WELFARE DIVISION (AWD), 2/F POEA, FAILURE TO DO
SO WILL CONSTRAIN US TO IMPOSE APPROPRIATE
SANCTION UNDER OUR RULES”
Responding thereto, petitioner, thru its President
Daniel Morga, Jr., faxed on September 26, 2000 the
following message to the Assistance and Welfare Division of
the POEA:
requiring us to report the circumstances surrounding the
death of OFW MANNY DELA ROSA RAZON in Korea and
requesting us to issue a PTA, etc., for the repatriation of the
remains of said OFW, this is to report to your good office the
following:
1. The deceased was deployed by our agency on April
3, 2000 to Yeongjin Machine Company in South Korea;
2. He violated his employment/training/dispatching
contracts on June 25, 2000 by unlawfully escaping/running
away (TNT) from his company assignment without prior
KFSMB authorization and working/staying in unknown
company/place;
3. He allegedly died of ‘bangungot’ thereafter;
In view thereof, we cannot heed your requests as embodied
in your telegram. However, his relatives can avail of the
benefits provided for by OWWA in cases involving
undocumented/illegal Filipino workers abroad.
Trusting for your kind understanding”
On the same date – September 26, 2000 – Director Ricardo
R. Casco of the WEO-POEA sent to the petitioner the herein
second assailed letter-directive, which pertinently reads:
“We have received a copy of your fax message dated 26
September 2000 as regards to your response to our request
for PTA for aforesaid deceased OFW. Nevertheless, may
we remind you that pursuant to Sections 52, 53, 54 and 55
of the Implementing Rules Governing RA 8042, otherwise
known as the Migrant Workers and Overseas Filipino Act of
1995, the repatriation of OFW, his/her remains and transport
of his personal effects is the primary responsibility of the
principal or agency and to immediately advance the cost of
plane fare without prior determination of the cause of
worker’s repatriation. The Rules further provide for the
procedure to be followed in cases when the foreign
employer/agency fails to provide for the cost of the
repatriation, compliance of which is punishable by
suspension of the license of the agency or such sanction as
the Administration shall deem proper. Hence, you are
required to provide the PTA for the deceased OFW in
compliance with the requirement in accordance with R.A.
8042. You are given forty-eight (48) hours upon receipt
hereof within which to provide said ticket. Failure in this
regard will constrain us to impose the appropriate sanction
under our rules.”
 On September 27, 2000, petitioner wrote back Director
Ricardo R. Casco, thus:
“In connection with your fax letter dated September 26,
2000, re: the repatriation of the remains of the deceased, ex-
trainee (OFW) MANNY DELA ROSA RAZON, please be
informed that the provisions of Section 53 as well as, and in
relation to, Section 55 of the Omnibus Rules and
Regulations Implementing the Migrant Workers and
Overseas Filipinos Act of 1995 on the matters covering the
following:
1. The responsibility of the agency to advance the cost of
plane fare without prior determination of the cause of the
deceased worker’s termination.
2. The recovery of the same costs from the estate of the
dead worker before the NLRC.
3. The action to be imposed by POEA for non-
compliance therewith within 48 hours are violative of due
process and/or the principle on due delegation of power.
This is so because Sec. 15 of R.A. 8042 clearly
contemplates prior notice and hearing before responsibility
thereunder could be established against the agency that sets
up the defense of sole fault – in avoidance of said
responsibility -. Besides, the sections in question unduly
grant the powers to require advance payment of the plane
fare, to impose the corresponding penalty of suspension in
case of non-compliance therewith, within 48 hours and to
recover said advance payment from the dead worker’s
estate upon the return of his remains to the country before
the NLRC, when the law itself does not expressly provide for
the grant of such powers.
xxx xxx x x x.
Please provide us immediately with the death
certificate/post mortem report/police report pertinent to
above as proof of death and cause thereof.”
Nonetheless, and apprehensive of the adverse
repercussions which may ensue on account of its non-
compliance with the directive, petitioner, on September 29,
2000, advanced under protest the costs for the repatriation
of the remains of the late Manny dela Rosa Razon.
Thereafter, petitioner went to this Court via the instant
petition for certiorari, posing, for Our consideration, the sole
issue of –
“WHETHER OR NOT SECTIONS 52, 53, 54 AND 55 OF
THE OMNIBUS RULES AND REGULATIONS
IMPLEMENTING THE MIGRANT WORKERS AND
OVERSEAS FILIPINOS ACT OF 1995 (R.A. 8042), ISSUED
BY DFA AND POEA, WHICH POEA SUMMARILY
ORDERED THE HEREIN PETITIONER TO COMPLY VIZ-A-
VIZ THE PAYMENT IN ADVANCE OF THE EXPENSES
FOR THE REPATRIATION OF THE REMAINS OF A
DECEASED WORKER-TRAINEE WHO, AT THE TIME OF
HIS DEATH, HAS NO EXISTING EMPLOYMENT
(DISPATCHING) CONTRACT WITH EITHER SAID
PETITIONER OR HIS FOREIGN PRINCIPAL AND NO
VALID VISA OR IS NOT WORKING WITH THE FOREIGN
PRINCIPAL TO WHICH PETITIONER DEPLOYED HIM, IS
ILLEGAL AND/OR VIOLATIVE OF DUE PROCESS SUCH
THAT POEA ACTED WITHOUT [OR IN] EXCESS OF ITS
JURISDICTION AND/OR IN GRAVE ABUSE OF
DISCRETION IN ISSUING SAID ORDER TO PAY SAID
EXPENSES.”[2]
On 4 October 2001, the Court of Appeals rendered
the Decision which is now the subject of the present petition.
The dispositive portion of the Court of Appeals’ Decision
states:
WHEREFORE, for lack of merit, the instant petition is
DENIED and is accordingly DISMISSED.[3]
In dismissing the petition for certiorari, the Court of
Appeals stated that petitioner was mainly accusing the
Philippine Overseas Employment Administration (POEA) of
grave abuse of discretion when it ordered petitioner to pay,
in advance, the costs for the repatriation of the remains of
the deceased Manny dela Rosa Razon.
The Court of Appeals ruled that the POEA did not
commit any grave abuse of discretion as its directives to
petitioner were issued pursuant to existing laws and
regulations.[4] It likewise held that a petition for certiorari,
which was the remedy availed of by petitioner, is not the
proper remedy as the same is only available when “there is
no appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law.”[5] Section 62 of the Omnibus Rules
and Regulations Implementing the Migrant Workers and
Overseas Filipinos Act of 1995 or Republic Act 8042
(“Omnibus Rules”) states that “the Labor Arbiters of NLRC
shall have the original and exclusive jurisdiction to hear and
decide all claims arising out of employer-employee
relationship or by virtue of any law or contract involving
Filipino workers for overseas deployment including claims for
actual, moral, exemplary and other forms of damages,
subject to the rules and procedures of the NLRC.” There is,
therefore, an adequate remedy available to petitioner.
Lastly, the Court of Appeals declared that it could not
strike down as unconstitutional Sections 52, 53, 54, and 55
of the Omnibus Rules as the unconstitutionality of a statute
or rules may not be passed upon unless the issue is directly
raised in an appropriate proceeding.[6]
In the present recourse, petitioner submits the
following issues for our consideration:
1. The Court of Appeals erred in the appreciation of the
issue as it mistakenly considered, in dismissing the petition
before it, that petitioner is contesting the compliance and
conformity of the POEA directives with Sections 52, 53, 54,
and 55 of the Omnibus Rules and Regulations implementing
in particular Section 15 of RA 8042;
2. The Court of Appeals, in dismissing the petition,
again erred in ruling that constitutional questions cannot be
passed upon and adjudged in a special civil action for
certiorari under Rule 65 of the 1997 Rules of Civil
Procedure;
3. The Court of Appeals erred in not holding that, under
the facts of the case that gave rise to the petition before it,
the same sections of the said rules and regulations are
illegal, invalid and/or violative of the right of petitioner to due
process of law and, therefore, the POEA directives issued
pursuant thereto constitute acts committed without, or in
excess of, jurisdiction and/or in grave abuse of discretion.[7]
In Our Resolution of 20 November 2002, we gave due
course to the present petition and directed the parties to
submit their respective memoranda.[8] On 28 August 2006,
we resolved to dispense with the memorandum of the
estate/heirs of deceased Manny dela Rosa Razon.
At the center of this petition are the following
provisions of the omnibus rules:
Section 52. Primary Responsibility for Repatriation.
– The repatriation of the worker, or his/her remains, and the
transport of his/her personal effects shall be the primary
responsibility of the principal or agency which recruited or
deployed him/her abroad. All costs attendant thereto shall
be borne by the principal or the agency concerned.
Section 53. Repatriation of Workers. – The primary
responsibility to repatriate entails the obligation on the part of
principal or agency to advance the cost of plane fare and to
immediately repatriate the worker should the need for it
arise, without a prior determination of the cause of the
termination of the worker’s employment. However, after the
worker has returned to the country, the principal or agency
may recover the cost of repatriation from the worker if the
termination of employment was due solely to his/her fault.
Every contract for overseas employment shall
provide for the primary responsibility of agency to advance
the cost of plane fare, and the obligation of the worker to
refund the cost thereof in case his/her fault is determined by
the Labor Arbiter.
Section 54. Repatriation Procedure. – When a need
for repatriation arises and the foreign employer fails to
provide for it cost, the responsible personnel at site shall
simultaneously notify OWWA and the POEA of such need.
The POEA shall notify the agency concerned of the need for
repatriation. The agency shall provide the plane ticket or the
prepaid ticket advice (PTA) to the Filipinos Resource Center
or to the appropriate Philippine Embassy; and notify POEA
of such compliance. The POEA shall inform OWWA of the
action of the agency.
Section 55. Action on Non-Compliance. – If the
employment agency fails to provide the ticket or PTA within
48 hours from receipt of the notice, the POEA shall suspend
the license of the agency or impose such sanctions as it may
deem necessary. Upon notice from the POEA, OWWA shall
advance the costs of repatriation with recourse to the agency
or principal. The administrative sanction shall not be lifted
until the agency reimburses the OWWA of the cost of
repatriation with legal interest.
Said provisions, on the other hand, are supposed to
implement Section 15 of Republic Act No. 8042[9] which
provides:
SEC. 15. Repatriation of Workers; Emergency
Repatriation Fund. – The repatriation of the worker and the
transport of his personal belongings shall be the primary
responsibility of the agency which, recruited or deployed the
worker overseas. All costs attendant to repatriation shall be
borne by or charged to the agency concerned and/or its
principal. Likewise, the repatriation of remains and transport
of the personal belongings of a deceased worker and all
costs attendant thereto shall be borne by the principal and/or
the local agency. However, in cases where the termination
of employment is due solely to the fault of the worker, the
principal/employer or agency shall not in any manner be
responsible for the repatriation of the former and/or his
belongings.
Petitioner contends that the Court of Appeals
misappreciated the issue it presented in its petition for
certiorari when, instead of resolving whether Sections 52,
53, 54, and 55 of the Omnibus Rules are illegal and violative
of due process, it merely confined itself to the question of
whether or not the POEA committed grave abuse of
discretion in issuing its directives of 22 September 2000 and
27 September 2000.
Petitioner also contends that, contrary to the finding of
the Court of Appeals, a special civil action for certiorari is the
appropriate remedy to raise constitutional issues.
Also, petitioner insists that the subject portions of the
omnibus rules are invalid on the ground that Section 15 of
Republic Act No. 8042 does not impose on a recruitment
agency the primary responsibility for the repatriation of a
deceased Overseas Filipino Worker (OFW), while Section 52
of the Omnibus Rules unduly imposes such burden on a
placement agency.
Moreover, petitioner argues that the word “likewise” at the
start of the third sentence of Section 15 of Republic Act No.
8042 is used merely as a connective word indicating the
similarity between a recruitment agency’s financial obligation
in the repatriation of living and a deceased OFW. It does
not, however, necessarily make a placement agency
primarily responsible for the repatriation of a deceased OFW
unlike in the case of an OFW who is alive.
As for Section 53 of the Omnibus Rules, petitioner submits
that the same is invalid as Section 15 of Republic Act No.
8042 clearly states that a placement agency shall not in any
manner be responsible for the repatriation of the deceased
OFW and his or her belongings should the termination of the
OFW’s employment be due to his or her fault. However, as
Section 53 of the Omnibus Rules stipulates that a placement
agency or principal shall bear the primary responsibility of
repatriating an OFW and of advancing the payment for his or
her plane fare, the omibus rules, as far as this section is
concerned, is an invalid exercise of legislative power by an
administrative agency.
In addition, petitioner claims Section 53 of the Omnibus
Rules violates the due process clause of the constitution as
it deprives the deploying agency of the right to prior notice
and hearing through which it can prove that it should not
bear the burden of repatriating an OFW.
Finally, petitioner points out that it should be the Overseas
Workers Welfare Administration which should advance the
costs of repatriation of the deceased Razon with the
resources coming out of the emergency repatriation fund of
said agency.
The Solicitor General for its part counters that Sections 52,
53, 54, and 55 of the Omnibus Rules are valid quasi-
legislative acts of respondents Department of Foreign Affairs
and Department of Labor and Employment.[10] Because of
this, the requirements of prior notice and hearing are not
essential. Besides, there are cases where even in the
exercise of quasi-judicial power, administrative agencies are
allowed, sans prior notice and hearing, to effectuate
measures affecting private property, such as:
1) [F]or the summary abatement of nuisance per se which
affects the immediate safety of persons and property, or 2)
in summary proceedings of distraint and levy upon the
property of delinquent taxpayers in the collection of internal
revenue taxes, fees or charges or any increment thereto, or
3) in the preventive suspension of a public officer pending
investigation. x x x.[11]
The Solicitor General also adds that since petitioner is
engaged in the recruitment of Filipino workers for work
abroad, the nature of its business calls for the exercise of the
state’s police power in order to safeguard the rights and
welfare of the Filipino laborers. One such measure is the
primary responsibility imposed upon placement agencies
with regard to the repatriation of an OFW or of his remains.
The Solicitor General also argues that the wording of
Section 15 of Republic Act No. 8042 leaves no doubt that a
recruitment agency shall bear the primary responsibility for
the repatriation of an OFW whether the latter is dead or
alive.
Lastly, the Solicitor General insists that actions
assailing the validity of implementing rules and regulations
are within the original jurisdiction of the regional trial courts.
We shall first address the procedural question
involved in the present petition.
There is no denying that regular courts have
jurisdiction over cases involving the validity or
constitutionality of a rule or regulation issued by
administrative agencies. Such jurisdiction, however, is not
limited to the Court of Appeals or to this Court alone for even
the regional trial courts can take cognizance of actions
assailing a specific rule or set of rules promulgated by
administrative bodies. Indeed, the Constitution vests the
power of judicial review or the power to declare a law, treaty,
international or executive agreement, presidential decree,
order, instruction, ordinance, or regulation in the courts,
including the regional trial courts.[12]
Section 1, Rule 65 of the 1997 Rules of Civil Procedure
states:
SECTION 1. Petition for Certiorari. – When any
tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no appeal, nor any
plain, speedy, and adequate remedy in the ordinary course
of law, a person aggrieved thereby may file a verified petition
in the proper court, alleging the facts with certainty and
praying that judgment be rendered annulling or modifying
the proceedings of such tribunal, board or officer, and
granting such incidental reliefs as law and justice may
require.
The petition shall be accompanied by a certified true
copy of the judgment, order or resolution subject thereof,
copies of all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum shopping as
provided in the third paragraph of Section 3, Rule 46.
From this, it is clear that in order for a petition for
certiorari to prosper, the following requisites must be
present: (1) the writ is directed against a tribunal, a board
or an officer exercising judicial or quasi-judicial functions; (2)
such tribunal, board or officer has acted without or in excess
of jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction; and (3) there is no appeal or
any plain, speedy and adequate remedy in the ordinary
course of law.
It bears emphasizing that administrative bodies are
vested with two basic powers, the quasi-legislative and the
quasi-judicial.[13] In Abella, Jr. v. Civil Service Commission,
[14] we discussed the nature of these powers to be –
In exercising its quasi-judicial function, an
administrative body adjudicates the rights of persons before
it, in accordance with the standards laid down by the law.
The determination of facts and the applicable law, as basis
for official action and the exercise of judicial discretion, are
essential for the performance of this function. On these
considerations, it is elementary that due process
requirements, as enumerated in Ang Tibay, must be
observed. These requirements include prior notice and
hearing.
On the other hand, quasi-legislative power is
exercised by administrative agencies through the
promulgation of rules and regulations within the confines of
the granting statute and the doctrine of non-delegation of
certain powers flowing from the separation of the great
branches of the government. Prior notice to and hearing of
every affected party, as elements of due process, are not
required since there is no determination of past events or
facts that have to be established or ascertained. As a
general rule, prior notice and hearing are not essential to the
validity of rules or regulations promulgated to govern future
conduct.
In this case, petitioner assails certain provisions of the
Omnibus Rules. However, these rules were clearly
promulgated by respondents Department of Foreign Affairs
and Department of Labor and Employment in the exercise of
their quasi-legislative powers or the authority to promulgate
rules and regulations. Because of this, petitioner was, thus,
mistaken in availing himself of the remedy of an original
action for certiorari as obviously, only judicial or quasi-
judicial acts are proper subjects thereof. If only for these,
the petition deserves outright dismissal. Be that as it may,
we shall proceed to resolve the substantive issues raised in
this petition for review in order to finally remove the doubt
over the validity of Sections 52, 53, 54, and 55 of the
Omnibus Rules.
It is now well-settled that delegation of legislative
power to various specialized administrative agencies is
allowed in the face of increasing complexity of modern life.
Given the volume and variety of interactions involving the
members of today’s society, it is doubtful if the legislature
can promulgate laws dealing with the minutiae aspects of
everyday life. Hence, the need to delegate to administrative
bodies, as the principal agencies tasked to execute laws with
respect to their specialized fields, the authority to promulgate
rules and regulations to implement a given statute and
effectuate its policies.[15] All that is required for the valid
exercise of this power of subordinate legislation is that the
regulation must be germane to the objects and purposes of
the law; and that the regulation be not in contradiction to, but
in conformity with, the standards prescribed by the law.[16]
Under the first test or the so-called completeness test, the
law must be complete in all its terms and conditions when it
leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it.[17]
The second test or the sufficient standard test, mandates
that there should be adequate guidelines or limitations in the
law to determine the boundaries of the delegate’s authority
and prevent the delegation from running riot.[18]
We resolve that the questioned provisions of the
Omnibus Rules meet these requirements.
Basically, petitioner is impugning the subject
provisions of the Omnibus Rules for allegedly expanding the
scope of Section 15 of Republic Act No. 8042 by: first,
imposing upon it the primary obligation to repatriate the
remains of the deceased Razon including the duty to
advance the cost of the plane fare for the transport of
Razon’s remains; and second, by ordering it to do so without
prior determination of the existence of employer-employee
relationship between itself and Razon.
Petitioner’s argument that Section 15 does not provide
that it shall be primarily responsible for the repatriation of a
deceased OFW is specious and plain nitpicking. While
Republic Act No. 8042 does not expressly state that
petitioner shall be primarily obligated to transport back here
to the Philippines the remains of the deceased Razon,
nevertheless, such duty is imposed upon him as the statute
clearly dictates that “the repatriation of remains and transport
of the personal belongings of a deceased worker and all
costs attendant thereto shall be borne by the principal and/or
the local agency.” The mandatory nature of said obligation
is characterized by the legislature’s use of the word “shall.”
That the concerned government agencies opted to demand
the performance of said responsibility solely upon petitioner
does not make said directives invalid as the law plainly
obliges a local placement agency such as herein petitioner
to bear the burden of repatriating the remains of a deceased
OFW with or without recourse to the principal abroad. In this
regard, we see no reason to invalidate Section 52 of the
omnibus rules as Republic Act No. 8042 itself permits the
situation wherein a local recruitment agency can be held
exclusively responsible for the repatriation of a deceased
OFW.
Nor do we see any reason to stamp Section 53 of the
Omnibus Rules as invalid for allegedly contravening Section
15 of the law which states that a placement agency shall not
be responsible for a worker’s repatriation should the
termination of the employer-employee relationship be due to
the fault of the OFW. To our mind, the statute merely states
the general principle that in case the severance of the
employment was because of the OFW’s own undoing, it is
only fair that he or she should shoulder the costs of his or
her homecoming. Section 15 of Republic Act No. 8042,
however, certainly does not preclude a placement agency
from establishing the circumstances surrounding an OFW’s
dismissal from service in an appropriate proceeding. As
such determination would most likely take some time, it is
only proper that an OFW be brought back here in our
country at the soonest possible time lest he remains
stranded in a foreign land during the whole time that
recruitment agency contests its liability for repatriation. As
aptly pointed out by the Solicitor General –
Such a situation is unacceptable.
24. This is the same reason why repatriation is
made by law an obligation of the agency and/or its principal
without the need of first determining the cause of the
termination of the worker’s employment. Repatriation is in
effect an unconditional responsibility of the agency and/or its
principal that cannot be delayed by an investigation of why
the worker was terminated from employment. To be left
stranded in a foreign land without the financial means to
return home and being at the mercy of unscrupulous
individuals is a violation of the OFW’s dignity and his human
rights. These are the same rights R.A. No. 8042 seeks to
protect.[19]
As for the sufficiency of standard test, this Court had,
in the past, accepted as sufficient standards the following:
“public interest,” “justice and equity,” “public convenience
and welfare,” and “simplicity, economy and welfare.”[20]
In this case, we hold that the legislature’s pronouncements
that Republic Act No. 8042 was enacted with the thought of
upholding the dignity of the Filipinos may they be here or
abroad and that the State shall at all times afford full
protection to labor, both here and abroad, meet the
requirement and provide enough guidance for the
formulation of the omnibus rules.
WHEREFORE, the Petition for Review is DENIED. The
Court of Appeals’ Decision dated 4 October 2001 and
Resolution dated 18 February 2002 are hereby AFFIRMED.
With costs.
SO ORDERED.
PETROLEUM SHIPPING LIMITED (formerly ESSO
INTERNATIONAL SHIPPING (BAHAMAS) CO.,
LTD.) and TRANS-GLOBAL MARITIME AGENCY,
INC., Petitioners, versus NATIONAL LABOR
RELATIONS COMMISSION and FLORELLO W.
TANCHICO, Respondents. 2006 Jun 16 3rd
Division G.R. No. 148130
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review[1] assailing the
25 January 2001 Decision[2] and 7 May 2001 Resolution[3]
of the Court of Appeals in CA-G.R. SP No. 54756.
The Antecedent Facts
On 6 March 1978, Esso International Shipping
(Bahamas) Co., Ltd., (“Esso”) through Trans-Global
Maritime Agency, Inc. (“Trans-Global”) hired Florello W.
Tanchico (“Tanchico”) as First Assistant Engineer. In 1981,
Tanchico became Chief Engineer. On 13 October 1992,
Tanchico returned to the Philippines for a two-month
vacation after completing his eight-month deployment.
On 8 December 1992, Tanchico underwent the
required standard medical examination prior to boarding the
vessel. The medical examination revealed that Tanchico
was suffering from “Ischemic Heart Disease, Hypertensive
Cardio-Muscular Disease and Diabetes Mellitus.” Tanchico
took medications for two months and a subsequent stress
test showed a negative result. However, Esso no longer
deployed Tanchico. Instead, Esso offered to pay him
benefits under the Career Employment Incentive Plan.
Tanchico accepted the offer.
On 26 April 1993, Tanchico filed a complaint against
Esso, Trans-Global and Malayan Insurance Co., Inc.
(“Malayan”) before the Philippine Overseas Employment
Administration (POEA) for illegal dismissal with claims for
backwages, separation pay, disability and medical benefits
and 13th month pay. In view of the enactment of Republic
Act No. 8042 (“RA 8042”)[4] transferring to the National
Labor Relations Commission (NLRC) the jurisdiction over
money claims of overseas workers, the case was indorsed to
the Arbitration Branch of the National Capital Region. In a
Decision[5] dated 16 October 1996, Labor Arbiter Jose G.
De Vera (“Labor Arbiter De Vera”) dismissed the complaint
for lack of merit. Tanchico appealed to the NLRC.
The Ruling of the NLRC
In its Resolution[6] of 3 September 1998, the NLRC
affirmed the Decision of Labor Arbiter De Vera. Tanchico
filed a motion for reconsideration. In a Resolution[7]
promulgated on 29 March 1999, the NLRC reconsidered its
3 September 1998 Resolution, as follows:
On the claim of illegal dismissal, the same is
unavailing as complainant had been declared as one with
partial permanent disability. Thus, he should be entitled to
disability benefit of 18 days for every year of credited service
of fourteen (14) years less the amount he already received
under the Company’s Disability Plan.
On the claim of 13th month pay, the respondent
Agency not falling under the enumerated exempted
employers under P.D. 851 and in the absence of any proof
that respondent is already paying its employees a 13th
month pay or more in a calendar year, perforce, respondent
agency should pay complainant his monthly pay computed
at [sic] the actual month [sic] worked, which is 8 months.
Since complainant was forced to litigate his case, he
is hereby awarded 10% of the total award as attorney’s fees.
SO ORDERED.[8]
Esso and Trans-Global moved for the reconsideration
of the 29 March 1999 Resolution.[9] In its 27 July 1999
Resolution,[10] the NLRC denied their motion.
Esso, now using the name Petroleum Shipping Limited
(“Petroleum Shipping”), and Trans-Global (collectively
referred to as “petitioners”) filed a petition for certiorari
before the Court of Appeals assailing the 29 March 1999
and 27 July 1999 Resolutions of the NLRC.
The Ruling of the Court of Appeals
In its Decision promulgated on 25 January 2001, the
Court of Appeals affirmed in toto the 29 March 1999
Resolution of the NLRC.
The Court of Appeals ruled that Tanchico was a
regular employee of Petroleum Shipping. The Court of
Appeals held that petitioners are not exempt from the
coverage of Presidential Decree No. 851, as amended
(“PD 851”)[11] which mandates the payment of 13th month
pay to all employees. The Court of Appeals further ruled
that Tanchico is entitled to disability benefits based on his 14
years of tenure with petitioners. The Court of Appeals stated
that the employer-employee relationship subsisted even
during the period of Tanchico’s vacation. The Court of
Appeals noted that petitioners were aware of Tanchico’s
medical history yet they still deployed him for 14 years.
Finally, the Court of Appeals sustained the award of
attorney’s fees.
Petitioners moved for the reconsideration of the
Decision. In its 7 May 2001 Resolution, the Court of
Appeals modified its Decision by deducting Tanchico’s
vacation from his length of service. Thus:
WHEREFORE, our decision is hereby MODIFIED.
The petitioners are ordered to pay to the private respondent
the following: (1) disability wages equivalent to 18 days
per year multiplied by 10 years less any amount already
received under the company’s disability plan; prorated 13th
month pay corresponding to eight (8) months of actual work;
and attorney’s fee equivalent to 10% of the total award.
SO ORDERED.[12]
Petitioners went to this Court for relief on the following
grounds:
I. The Court of Appeals decided a question of
substance not in accord with law, applicable decision of this
Court and International Maritime Law when it ruled that
private respondent, a seafarer, was a regular employee;
II. The Court of Appeals decided a question of
substance not in accord with law when it held that the private
respondent was entitled to greater disability benefit than he
was [sic];
III. The Court of Appeals decided a question of
substance not heretofore determined by this Court when it
ruled that private respondent was entitled to 13th month pay
although it was not provided for in the contract of
employment between petitioners and private respondent;
and
IV. The Court of Appeals decided a question of
substance not in accord with law when it awarded private
respondent attorney’s fees despite the Labor Arbiter’s and
the public respondent’s, albeit initially, dismissal of the
complaint.[13]
The Issues
The issues are as follows:
1. Whether Tanchico is a regular employee of
petitioners; and
2. Whether Tanchico is entitled to 13th month pay,
disability benefits and attorney’s fees.
The Ruling of This Court
The petition is partly meritorious.
Seafarers are Contractual Employees
The issue on whether seafarers are regular employees
is already a settled matter.
In Ravago v. Esso Eastern Marine, Ltd.,[14] the Court
traced its ruling in a number of cases that seafarers are
contractual, not regular, employees. Thus, in Brent School,
Inc. v. Zamora,[15] the Court cited overseas employment
contract as an example of contracts where the concept of
regular employment does not apply, whatever the nature of
the engagement and despite the provisions of Article 280 of
the Labor Code. In Coyoca v. NLRC,[16] the Court held that
the agency is liable for payment of a seaman’s medical and
disability benefits in the event that the principal fails or
refuses to pay the benefits or wages due the seaman
although the seaman may not be a regular employee of the
agency.
The Court squarely passed upon the issue in Millares
v. NLRC[17] where one of the issues raised was whether
seafarers are regular or contractual employees whose
employment are terminated everytime their contracts of
employment expire. The Court explained:
[I]t is clear that seafarers are considered contractual
employees. They can not be considered as regular
employees under Article 280 of the Labor Code. Their
employment is governed by the contracts they sign
everytime they are rehired and their employment is
terminated when the contract expires. Their employment is
contractually fixed for a certain period of time. They fall
under the exception of Article 280 whose employment has
been fixed for a specific project or undertaking the
completion or termination of which has been determined at
the time of engagement of the employee or where the work
or services to be performed is seasonal in nature and the
employment is for the duration of the season. We need not
depart from the rulings of the Court in the two
aforementioned cases which indeed constitute stare decisis
with respect to the employment status of seafarers.
Petitioners insist that they should be considered
regular employees, since they have rendered services which
are usually necessary and desirable to the business of their
employer, and that they have rendered more than twenty
(20) years of service. While this may be true, the Brent case
has, however, held that there are certain forms of
employment which also require the performance of usual
and desirable functions and which exceed one year but do
not necessarily attain regular employment status under
Article 280. Overseas workers including seafarers fall under
this type of employment which are governed by the mutual
agreements of the parties.
In this jurisdiction and as clearly stated in the
Coyoca case, Filipino seamen are governed by the Rules
and Regulations of the POEA. The Standard Employment
Contract governing the employment of All Filipino Seamen
on Board Ocean-Going Vessels of the POEA, particularly in
Part I, Sec. C specifically provides that the contract of
seamen shall be for a fixed period. And in no case should
the contract of seamen be longer than 12 months. It reads:
Section C. Duration of Contract
The period of employment shall be for a fixed period
but in no case to exceed 12 months and shall be stated in
the Crew Contract. Any extension of the Contract period
shall be subject to the mutual consent of the parties.
Moreover, it is an accepted maritime industry
practice that employment of seafarers are for a fixed period
only. Constrained by the nature of their employment which
is quite peculiar and unique in itself, it is for the mutual
interest of both the seafarer and the employer why the
employment status must be contractual only or for a certain
period of time. Seafarers spend most of their time at sea
and understandably, they can not stay for a long and an
indefinite period of time at sea. Limited access to shore
society during the employment will have an adverse impact
on the seafarer. The national, cultural and lingual diversity
among the crew during the COE is a reality that necessitates
the limitation of its period.
Petitioners make much of the fact that they have
been continually re-hired or their contracts renewed before
the contracts expired (which has admittedly been going on
for twenty (20) years). By such circumstance they claim to
have acquired regular status with all the rights and benefits
appurtenant to it.
Such contention is untenable. Undeniably, this
circumstance of continuous re-hiring was dictated by
practical considerations that experienced crew members are
more preferred. Petitioners were only given priority or
preference because of their experience and qualifications
but this does not detract the fact that herein petitioners are
contractual employees. They can not be considered regular
employees. x x x[18]
The Court reiterated the Millares ruling in Gu-Miro v.
Adorable[19] where it held that a radio officer on board a
vessel cannot be considered as a regular employee
notwithstanding that the work he performs is necessary and
desirable in the business of the company.
Thus, in the present case, the Court of Appeals erred
in ruling that Tanchico was a regular employee of Petroleum
Shipping.
On 13th Month Pay
The Court of Appeals premised its grant of 13th month
pay on its ruling that Tanchico was a regular employee. The
Court of Appeals also ruled that petitioners are not exempt
from the coverage of PD 851 which requires all employers to
pay their employees a 13th month pay.
We do not agree with the Court of Appeals. Again,
Tanchico was a contractual, not a regular, employee.
Further, PD 851 does not apply to seafarers. The
WHEREAS clauses of PD 851 provides:
WHEREAS, it is necessary to further protect the level
of real wages from ravages of world-wide inflation;
WHEREAS, there has been no increase in the legal
minimum wage rates since 1970;
WHEREAS, the Christmas season is an opportune
time for society to show its concern for the plight of the
working masses so they may properly celebrate Christmas
and New Year.
PD 851 contemplates the situation of land-based
workers, and not of seafarers who generally earn more than
domestic land-based workers.
Tanchico’s employment is governed by his Contract of
Enlistment (“Contract”).[20] The Contract has been approved
by the POEA in accordance with Title I, Book One of the
Labor Code and the POEA Rules Governing Employment.
[21] The coverage of the Contract includes Compensation,
Overtime, Sundays and Holidays, Vacations, Living
Allowance, Sickness, Injury and Death, Transportation and
Travel Expense, Subsistence and Living Quarters. It does
not provide for the payment of 13th month pay. The
Contract of Employment,[22] which is the standard
employment contract of the POEA, likewise does not provide
for the payment of 13th month pay.
In Coyoca v. NLRC which involves a claim for
separation pay, this Court held:
Furthermore, petitioner’s contract did not provide for
separation benefits. In this connection, it is important to note
that neither does POEA standard employment contract for
Filipino seamen provide for such benefits.
As a Filipino seaman, petitioner is governed by the
Rules and Regulations Governing Overseas Employment
and the said Rules do not provide for separation or
termination pay. x x x[23]
Hence, in the absence of any provision in his Contract
governing the payment of 13th month pay, Tanchico is not
entitled to the benefit.
On Disability Benefits
Petitioners allege that Tanchico’s Contract ended on
13 October 1992 when he returned to Manila. They allege
that the vacation period is not part of the period of
employment.
We cannot accept petitioners’ contention.
The duration of the Contract was for eight months.
The Contract also provides:
Article V
VACATIONS
Vacation days shall be earned at the rate of seven
and one-half days (7.5) days for each thirty (30) days of
continuous service, calculated from date of departure from
Manila and until date of return to Manila. Vacation begins on
the day following arrival in Manila.
Every effort will be made to grant earned vacations
promptly after eight (8) months of service; however, the
COMPANY shall have the right to advance or delay
vacations to coincide with vessel repairs, for operational
reasons or due to personal requirements. SEAFARER shall
receive vacation compensation for each thirty (30) days of
continuous service in accordance with the rates listed in
Addendum No. 1, Column (12), to be paid in Manila.
Amounts shall be pro-rated according to the ranks/ratings
and period of time in which the SEAFARER served. For
period of less than thirty (30) days service, vacations and
compensation shall be reduced proportionately.
Time off for illness, injury, vacation, leave of absence
or stand-by shall not be considered service under the
provisions of this Article.
It is the COMPANY’s intention that each SEAFARER
enjoy his full vacation period. Because of urgent fleet needs,
however, it occasionally may be necessary to recall a
SEAFARER early from vacation.[24]
Since Tanchico received compensation during his
vacation, the Contract did not terminate on the day he
returned to Manila. The Contract remained in force during
Tanchico’s vacation period.
However, the Court of Appeals erred when it ruled that
Tanchico is entitled to disability benefits of 18 days for every
year of service. The Court of Appeals ruled that Tanchico’s
employment was continuous and that his tenure with
petitioners was for 14 years. Again, the Court of Appeals
assumed that Tanchico was a regular employee. The Court
of Appeals failed to consider that Tanchico’s employment
terminated with the end of each contract.
The Contract provides:
Article VIII
SICKNESS-INJURY/DEATH
A. The COMPANY shall provide, during the period of
the Contract, Insurance coverage for the SEAFARER
against loss of life, permanent disability, temporary disability,
injury, occupational illness, hospital and medical expense in
such amounts as the COMPANY shall determine but not
lower than what the COMPANY would have to pay under the
Philippine Overseas Employment Administration’s
requirements or the vessel’s flag state requirements
(whichever is higher).
 B. If SEAFARER is removed from a vessel for
medical treatment he shall be entitled to receive a disability
benefit equal to his monthly wage rate (or pro-rata thereof)
from date of disembarkation until date of rejoining his vessel,
assignment to another vessel or until date of repatriation to
Manila if still disabled. Medical, surgical, hospital, or clinical
treatment shall be recommended by a doctor approved by
the COMPANY and SEAFARER must follow all medical
advices. SEAFARER will not be entitled to disability benefit
payments for disability resulting from his own misconduct,
negligence, unlawful acts, altercations, vice, etc.
C. After disembarkation from a vessel, the
SEAFARER is entitled to one hundred percent (100%) of his
wages until he is declared fit or the degree of permanent
disability has been assessed by the COMPANY’s physician
for a maximum period of 120 days commencing on date of
such disembarkation. Upon the expiration of such 120 days
and if the SEAFARER is still disabled, the SEAFARER shall
be paid his wages equivalent to 18 days for every year of
credited service.
In special instances and at the discretion of the
COMPANY, the maximum number of days of COMPANY
benefits may be extended beyond 120 days for a
SEAFARER with over 80 months credited COMPANY
service, or in such other case as may be determined by the
COMPANY.
Upon expiration of COMPANY benefits and if still
disabled, the following amounts shall be paid up to maximum
of 365 days, inclusive of the period of the above benefits.
All Ranks ................................................ US $10
per day
D. If disability should occur while SEAFARER is on
vacation, he must, within 3 days from date thereof, notify the
COMPANY’s Agent in the Philippines in order that the latter
shall be able to certify as to his condition. Certification of
disability required for payment of any disability benefits must
be approved by a doctor appointed by the COMPANY and
SEAFARER must be disabled seven (7) days or more to be
eligible to benefits and sick leave status, COMPANY benefits
shall be limited to a maximum of 18 days.
Benefits under the COMPANY Disability Plan shall
be made only to the extent and in such amounts as are
equal to the differential between any payments which may
be due SEAFARER under COMPANY’s obligation as set
forth in the 1st paragraph of this Article VIII and 90 percent
of SEAFARER’s last wage rate.
E. In case of death at sea or at a foreign port, the
tradition of the sea and requirements of the laws of such
foreign port will be observed. If practical, every effort will be
made on the part of the COMPANY to return the remains of
a deceased SEAFARER to Manila at COMPANY expense.
F. The SEAFARER acknowledges that even without
signed receipts, any wage payments made to him for a
period during which he is entitled to benefits under any law
by reason of death, temporary or permanent disability, shall
be deemed an advance payment of compensation benefits
due to him under such law, but only to the extent of benefits
due for the period of disability during which wages are paid.
Wages, as set forth in Addendum No. 1, Column (1),
shall be the basis for any calculation of benefits due
SEAFARER under this Article VIII.[25] mphasis supplied)
Indications that Tanchico was suffering from ischemia
were detected on 8 December 1992 during Tanchico’s
vacation period. Thus, petitioners paid him disability benefits
for 18 days in accordance with the Contract. Tanchico
cannot claim that he only acquired the illness during his last
deployment since the Medical Report[26] he submitted to the
NLRC showed that he has been hypertensive since 1983
and diabetic since 1987. In the absence of concrete proof
that Tanchico acquired his disability during his last
deployment and not during his vacation, he is only entitled to
disability benefits for 18 days.
Petitioners claim that they already paid Tanchico his
disability benefits for 18 days but he refused to sign the
receipt.[27] Tanchico alleged that he was only paid under
the Career Employment Incentive Plan.[28] This is a factual
matter which this Court cannot resolve. This matter has to
be remanded to the Labor Arbiter for resolution.
WHEREFORE, we GRANT the petition. We
REVERSE and SET ASIDE the 25 January 2001 Decision
and 7 May 2001 Resolution of the Court of Appeals in CA-
G.R. SP No. 54756. We REINSTATE the 16 October
1996 Decision of Labor Arbiter Jose G. De Vera dismissing
the complaint for illegal dismissal and the claims for
backwages, separation pay and 13th month pay. We
REMAND the case to the Labor Arbiter to determine if
Florello Tanchico has been paid his disability benefits for 18
days in accordance with his Contract of Enlistment. If no
payment has been made, the Labor Arbiter is DIRECTED to
determine the amount Tanchico is entitled.
SO ORDERED.
SUNACE INTERNATIONAL MANAGEMENT
SERVICES, INC. Petitioner, versus NATIONAL
LABOR RELATIONS COMMISSION, Second
Division; HON. ERNESTO S. DINOPOL, in his
capacity as Labor Arbiter, NLRC; NCR, Arbitration
Branch, Quezon City and DIVINA A.
MONTEHERMOZO, Respondents. 2006 Jan 25 3rd
Division G.R. No. 161757
DECISION
CARPIO MORALES, J.:
Petitioner, Sunace International Management Services
(Sunace), a corporation duly organized and existing under
the laws of the Philippines, deployed to Taiwan Divina A.
Montehermozo (Divina) as a domestic helper under a 12-
month contract effective February 1, 1997.[1] The
deployment was with the assistance of a Taiwanese broker,
Edmund Wang, President of Jet Crown International Co.,
Ltd.
After her 12-month contract expired on February 1, 1998,
Divina continued working for her Taiwanese employer, Hang
Rui Xiong, for two more years, after which she returned to
the Philippines on February 4, 2000.
Shortly after her return or on February 14, 2000, Divina filed
a complaint[2] before the National Labor Relations
Commission (NLRC) against Sunace, one Adelaide Perez,
the Taiwanese broker, and the employer-foreign principal
alleging that she was jailed for three months and that she
was underpaid.
The following day or on February 15, 2000, Labor Arbitration
Associate Regina T. Gavin issued Summons[3] to the
Manager of Sunace, furnishing it with a copy of Divina’s
complaint and directing it to appear for mandatory
conference on February 28, 2000.
The scheduled mandatory conference was reset. It appears
to have been concluded, however.
On April 6, 2000, Divina filed her Position Paper[4] claiming
that under her original one-year contract and the 2-year
extended contract which was with the knowledge and
consent of Sunace, the following amounts representing
income tax and savings were deducted:
Year Deduction for Deduction for
Income Tax Savings
1997 NT10,450.00 NT23,100.00
1998 NT 9,500.00 NT36,000.00
1999 NT13,300.00 NT36,000.00;[5]
and while the amounts deducted in 1997 were refunded to
her, those deducted in 1998 and 1999 were not. On even
date, Sunace, by its Proprietor/General Manager Maria Luisa
Olarte, filed its Verified Answer and Position Paper,[6]
claiming as follows, quoted verbatim:
COMPLAINANT IS NOT ENTITLED
FOR THE REFUND OF HER 24 MONTHS
SAVINGS
3. Complainant could not anymore claim nor
entitled for the refund of her 24 months savings as she
already took back her saving already last year and the
employer did not deduct any money from her salary, in
accordance with a Fascimile Message from the respondent
SUNACE’s employer, Jet Crown International Co. Ltd., a
xerographic copy of which is herewith attached as ANNEX
“2” hereof;
COMPLAINANT IS NOT ENTITLED
TO REFUND OF HER 14 MONTHS TAX
AND PAYMENT OF ATTORNEY’S FEES
4. There is no basis for the grant of tax
refund to the complainant as the she finished her one year
contract and hence, was not illegally dismissed by her
employer. She could only lay claim over the tax refund or
much more be awarded of damages such as attorney’s fees
as said reliefs are available only when the dismissal of a
migrant worker is without just valid or lawful cause as
defined by law or contract.
The rationales behind the award of tax refund
and payment of attorney’s fees is not to enrich the
complainant but to compensate him for actual injury
suffered. Complainant did not suffer injury, hence, does not
deserve to be compensated for whatever kind of damages.
Hence, the complainant has NO cause of
action against respondent SUNACE for monetary claims,
considering that she has been totally paid of all the monetary
benefits due her under her Employment Contract to her full
satisfaction.
6. Furthermore, the tax deducted from her salary is in
compliance with the Taiwanese law, which respondent
SUNACE has no control and complainant has to obey and
this Honorable Office has no authority/jurisdiction to
intervene because the power to tax is a sovereign power
which the Taiwanese Government is supreme in its own
territory. The sovereign power of taxation of a state is
recognized under international law and among sovereign
states.
7. That respondent SUNACE respectfully
reserves the right to file supplemental Verified Answer
and/or Position Paper to substantiate its prayer for the
dismissal of the above case against the herein respondent.
AND BY WAY OF -
x x x x (Emphasis and underscoring
supplied)
Reacting to Divina’s Position Paper, Sunace filed on
April 25, 2000 an “. . . answer to complainant’s position
paper”[7] alleging that Divina’s 2-year extension of her
contract was without its knowledge and consent, hence, it
had no liability attaching to any claim arising therefrom, and
Divina in fact executed a Waiver/Quitclaim and Release of
Responsibility and an Affidavit of Desistance, copy of each
document was annexed to said “. . . answer to complainant’s
position paper.”
To Sunace’s “. . . answer to complainant’s position
paper,” Divina filed a 2-page reply,[8] without, however,
refuting Sunace’s disclaimer of knowledge of the extension
of her contract and without saying anything about the
Release, Waiver and Quitclaim and Affidavit of Desistance.
The Labor Arbiter, rejected Sunace’s claim that the
extension of Divina’s contract for two more years was
without its knowledge and consent in this wise:
We reject Sunace’s submission that it should not be held
responsible for the amount withheld because her contract
was extended for 2 more years without its knowledge and
consent because as Annex “B”[9] shows, Sunace and
Edmund Wang have not stopped communicating with each
other and yet the matter of the contract’s extension and
Sunace’s alleged non-consent thereto has not been
categorically established.
What Sunace should have done was to write to POEA about
the extension and its objection thereto, copy furnished the
complainant herself, her foreign employer, Hang Rui Xiong
and the Taiwanese broker, Edmund Wang.
And because it did not, it is presumed to have consented to
the extension and should be liable for anything that resulted
thereform (sic).[10] nderscoring supplied)
The Labor Arbiter rejected too Sunace’s argument that
it is not liable on account of Divina’s execution of a Waiver
and Quitclaim and an Affidavit of Desistance. Observed the
Labor Arbiter:
Should the parties arrive at any agreement as to the whole
or any part of the dispute, the same shall be reduced to
writing and signed by the parties and their respective
counsel (sic), if any, before the Labor Arbiter.
The settlement shall be approved by the Labor Arbiter after
being satisfied that it was voluntarily entered into by the
parties and after having explained to them the terms and
consequences thereof.
A compromise agreement entered into by the parties not in
the presence of the Labor Arbiter before whom the case is
pending shall be approved by him, if after confronting the
parties, particularly the complainants, he is satisfied that they
understand the terms and conditions of the settlement and
that it was entered into freely voluntarily (sic) by them and
the agreement is not contrary to law, morals, and public
policy.
And because no consideration is indicated in the
documents, we strike them down as contrary to law, morals,
and public policy.[11]
He accordingly decided in favor of Divina, by decision of
October 9, 2000,[12] the dispositive portion of which reads:
Wherefore, judgment is hereby rendered ordering
respondents SUNACE INTERNATIONAL SERVICES and its
owner ADELAIDA PERGE, both in their personal capacities
and as agent of Hang Rui Xiong/Edmund Wang to jointly and
severally pay complainant DIVINA A. MONTEHERMOZO
the sum of NT91,950.00 in its peso equivalent at the date of
payment, as refund for the amounts which she is hereby
adjudged entitled to as earlier discussed plus 10% thereof as
attorney’s fees since compelled to litigate, complainant had
to engage the services of counsel.
SO ORDERED.[13] (Underescoring supplied)
On appeal of Sunace, the NLRC, by Resolution of April 30,
2002,[14] affirmed the Labor Arbiter’s decision.
Via petition for certiorari,[15] Sunace elevated the case to
the Court of Appeals which dismissed it outright by
Resolution of November 12, 2002,[16] the full text of which
reads:
The petition for certiorari faces outright dismissal.
The petition failed to allege facts constitutive of grave abuse
of discretion on the part of the public respondent amounting
to lack of jurisdiction when the NLRC affirmed the Labor
Arbiter’s finding that petitioner Sunace International
Management Services impliedly consented to the extension
of the contract of private respondent Divina A.
Montehermozo. It is undisputed that petitioner was
continually communicating with private respondent’s foreign
employer (sic). As agent of the foreign principal, “petitioner
cannot profess ignorance of such extension as obviously,
the act of the principal extending complainant (sic)
employment contract necessarily bound it.” Grave abuse of
discretion is not present in the case at bar.
ACCORDINGLY, the petition is hereby DENIED DUE
COURSE and DISMISSED.[17]
SO ORDERED.
(Emphasis on words in capital letters in the original;
emphasis on words in small letters and underscoring
supplied)
Its Motion for Reconsideration having been denied by the
appellate court by Resolution of January 14, 2004,[18]
Sunace filed the present petition for review on certiorari.
The Court of Appeals affirmed the Labor Arbiter and NLRC’s
finding that Sunace knew of and impliedly consented to the
extension of Divina’s 2-year contract. It went on to state
that “It is undisputed that [Sunace] was continually
communicating with [Divina’s] foreign employer.” It thus
concluded that “[a]s agent of the foreign principal, ‘petitioner
cannot profess ignorance of such extension as obviously,
the act of the principal extending complainant (sic)
employment contract necessarily bound it.’”
Contrary to the Court of Appeals finding, the alleged
continuous communication was with the Taiwanese broker
Wang, not with the foreign employer Xiong.
The February 21, 2000 telefax message from the Taiwanese
broker to Sunace, the only basis of a finding of continuous
communication, reads verbatim:
xxxx
Regarding to Divina, she did not say anything about her
saving in police station. As we contact with her employer,
she took back her saving already last years. And they did
not deduct any money from her salary. Or she will call back
her employer to check it again. If her employer said yes! we
will get it back for her.
Thank you and best regards.
(sgd.)
Edmund Wang
President[19]
The finding of the Court of Appeals solely on the basis of the
above-quoted telefax message, that Sunace continually
communicated with the foreign “principal” (sic) and therefore
was aware of and had consented to the execution of the
extension of the contract is misplaced. The message does
not provide evidence that Sunace was privy to the new
contract executed after the expiration on February 1, 1998 of
the original contract. That Sunace and the Taiwanese broker
communicated regarding Divina’s allegedly withheld savings
does not necessarily mean that Sunace ratified the
extension of the contract. As Sunace points out in its
Reply[20] filed before the Court of Appeals,
As can be seen from that letter communication, it was just an
information given to the petitioner that the private respondent
had t[aken] already her savings from her foreign employer
and that no deduction was made on her salary. It contains
nothing about the extension or the petitioner’s consent
thereto.[21]
Parenthetically, since the telefax message is dated February
21, 2000, it is safe to assume that it was sent to enlighten
Sunace who had been directed, by Summons issued on
February 15, 2000, to appear on February 28, 2000 for a
mandatory conference following Divina’s filing of the
complaint on February 14, 2000.
Respecting the Court of Appeals following dictum:
As agent of its foreign principal, [Sunace] cannot profess
ignorance of such an extension as obviously, the act of its
principal extending [Divina’s] employment contract
necessarily bound it,[22] it too is a misapplication, a
misapplication of the theory of imputed knowledge.
The theory of imputed knowledge ascribes the
knowledge of the agent, Sunace, to the principal, employer
Xiong, not the other way around.[23] The knowledge of the
principal-foreign employer cannot, therefore, be imputed to
its agent Sunace.
There being no substantial proof that Sunace knew of and
consented to be bound under the 2-year employment
contract extension, it cannot be said to be privy thereto. As
such, it and its “owner” cannot be held solidarily liable for
any of Divina’s claims arising from the 2-year employment
extension. As the New Civil Code provides,
Contracts take effect only between the parties, their assigns,
and heirs, except in case where the rights and obligations
arising from the contract are not transmissible by their
nature, or by stipulation or by provision of law.[24]
Furthermore, as Sunace correctly points out, there was an
implied revocation of its agency relationship with its foreign
principal when, after the termination of the original
employment contract, the foreign principal directly negotiated
with Divina and entered into a new and separate
employment contract in Taiwan. Article 1924 of the New
Civil Code reading
The agency is revoked if the principal directly manages the
business entrusted to the agent, dealing directly with third
persons.
thus applies.
In light of the foregoing discussions, consideration of the
validity of the Waiver and Affidavit of Desistance which
Divina executed in favor of Sunace is rendered unnecessary.
WHEREFORE, the petition is GRANTED. The challenged
resolutions of the Court of Appeals are hereby REVERSED
and SET ASIDE. The complaint of respondent Divina A.
Montehermozo against petitioner is DISMISSED.
SO ORDERED.
PLACEWELL INTERNATIONAL SERVICES
CORPORATION, Petitioner, versus IRENEO B.
CAMOTE, Respondent. 2006 Jun 261st Division
G.R. No. 169973
DECISION
YNARES-SANTIAGO, J.:
This Petition for Review on Certiorari under Rule 45 of the
Rules of Court assails the September 27, 2005 Decision[1]
of the Court of Appeals in CA-G.R. SP No. 77145, which set
aside the November 20, 2002 Resolution[2] of the National
Labor Relations Commission (NLRC) and reinstated with
modifications the May 31, 2002 Decision[3] of Labor Arbiter
Arturo L. Gamolo.
The records show that on August 15, 1999, petitioner
Placewell International Services Corporation (PISC)
deployed respondent Ireneo B. Camote to work as building
carpenter for SAAD Trading and Contracting Co. (SAAD) at
the Kingdom of Saudi Arabia (KSA) for a contract duration of
two years, with a corresponding salary of US$370.00 per
month.
At the job site, respondent was allegedly found incompetent
by his foreign employer; thus the latter decided to terminate
his services. However, respondent pleaded for his retention
and consented to accept a lower salary of SR 800.00 per
month. Thus, SAAD retained respondent until his return to
the Philippines two years after.
On November 27, 2001, respondent filed a sworn
Complaint[4] for monetary claims against petitioner alleging
that when he arrived at the job site, he and his fellow Filipino
workers were required to sign another employment contract
written in Arabic under the constraints of losing their jobs if
they refused; that for the entire duration of the new contract,
he received only SR 590.00 per month; that he was not
given his overtime pay despite rendering nine hours of work
everyday; that he and his co-workers sought assistance from
the Philippine Embassy but they did not succeed in pursuing
their cause of action because of difficulties in
communication.
On May 31, 2002, the labor arbiter rendered a decision
holding that the modification of respondent’s employment
contract is not allowed under Section 10 of Republic Act No.
8042 (R.A. No. 8042);[5] thus, he should have received the
original contracted salary of US$370.00 per month instead of
the new rate given by SAAD. It was also noted that
respondent did not refute petitioner’s allegation regarding the
non-payment of placement and other processing fees prior
to deployment. The labor arbiter also found that there is no
differential as far as respondent’s overtime pay is concerned
considering that he was given overtime pay based on the
new rate of SR 800.00. Since respondent rendered one
hour of overtime work per day for only 18 months, and not
the entire 24 months as claimed, the total overtime pay he
received is more or less equivalent to the amount he ought
to have received if the original contracted rate of US$370.00
was used. Finally, the labor arbiter awarded respondent
attorney’s fees equivalent to 10% of the total judgment
award for being compelled to hire a counsel to protect his
rights and interests. The dispositive portion of the Decision
reads:
WHEREFORE, premises considered, judgment is hereby
rendered ORDERING respondent PLACEWELL
INTERNATIONAL SERVICES CORPORATION to pay
complainant IRENEO B. CAMOTE the amount of PESOS:
TWO HUNDRED FIFTEEN THOUSAND FOUR HUNDRED
TWENTY FOUR ONLY (P215,424.00) representing
underpayment of wages and attorney’s fees.
SO ORDERED.[6]
On appeal by the petitioner, the NLRC set aside the
Decision of the Labor Arbiter, to wit:
WHEREFORE, premises considered, the appealed decision
is Vacated and Set Aside. In lieu thereof, a new judgment is
rendered, dismissing the above-entitled case for lack of
cause of action.
SO ORDERED.[7]
Aggrieved, respondent filed a Petition for Certiorari under
Rule 65 in the Court of Appeals which set aside the
Resolution of the NLRC, and reinstated with modifications
the Decision of the labor arbiter. The appellate court held
that there was a diminution of respondent’s salary – from a
rate of US$370.00 to SR 800.00 per month in clear violation
of Section 10 of R.A. No. 8042.
As to the alleged incompetence of respondent, the appellate
court noted that said allegation has not been substantiated
hence should not be given any credence. Thus, for failure of
petitioner to show just cause for the demotion of respondent,
the appellate court granted the petition, set aside resolution
dated November 24, 2000 of the NLRC, and reinstated the
decision of the Labor Arbiter dated May 31, 2002, the
dispositive portion of which follows:
WHEREFORE, premises considered, the petition is
GRANTED. The assailed Resolution dated 24 November
2000 of the NLRC, Fifth Division is SET ASIDE and the
Decision of the Labor Arbiter dated 31 May 2002 is
REINSTATED and AFFIRMED with modifications. The
exchange rate shall be that prevailing at the time of actual
payment. Private respondent, PLACEWELL
INTERNATIONAL SERVICES CORPORATION is hereby
ordered jointly and severally liable to pay petitioner, IRENEO
B. CAMOTE the following:
Per POEA approved contract or $370.00 x (rate of exchange
at the time of actual payment) x 24 months = Total salary in
the original contract
Less:
Salary as Modified or SR 800 x P12.00 x 24 months =
P230,400.00
Less:
Unauthorized Deductions or SR 4,885 x P12 =
P171,780.00
P
58,620.00
Less:
Unpaid placement fee
Equals:
Total unpaid salary
Add:
Attorney’s fees or 5% of the total unpaid salary
Equals:
Total Money Claims.
SO ORDERED.[8]
Hence, this petition.
Petitioner avers that respondent failed to substantiate the
allegation that he was forced to enter into the new
employment contract with SAAD which proves that the new
contract was actually voluntarily entered and agreed upon
between said parties; that if respondent was indeed forced to
sign the new contract, his claims are now barred by laches
because respondent never informed petitioner of any
problem at the job site until two years after his deployment;
that the appellate court’s award for unauthorized deductions
in the amount of P171,780.00 should be deleted for lack of
legal or factual basis; that respondent is not entitled to
attorney’s fees.
R.A. No. 8042 explicitly prohibits the substitution or alteration
to the prejudice of the worker, of employment contracts
already approved and verified by the Department of Labor
and Employment (DOLE) from the time of actual signing
thereof by the parties up to and including the period of the
expiration of the same without the approval of the DOLE.[9]
Thus, we held in Chavez v. Bonto-Perez[10] that the
subsequently executed side agreement of an overseas
contract worker with her foreign employer which reduced her
salary below the amount approved by the POEA is void
because it is against our existing laws, morals and public
policy. The said side agreement cannot supersede her
standard employment contract approved by the POEA.[11]
Applying the same rule in the case at bar, the unauthorized
alteration in the employment contract of respondent,
particularly the diminution in his salary from US$370.00 to
SR 800.00 per month, is void for violating the POEA-
approved contract which set the minimum standards, terms,
and conditions of his employment.
Moreover, we find that there was no proper dismissal of
respondent by SAAD; the “termination” of respondent was
clearly a ploy to pressure him to agree to a lower wage rate
for continued employment. Thus, the original POEA-
approved employment contract of respondent subsists
despite the so-called new agreement with SAAD.
Consequently, the solidary liability of petitioner with SAAD
for respondent’s money claims continues in accordance with
Section 10 of R.A. 8042.[12]
Petitioner’s contention that respondent is guilty of laches is
without basis. Laches has been defined as the failure of or
neglect for an unreasonable and unexplained length of time
to do that which by exercising due diligence, could or should
have been done earlier, or to assert a right within reasonable
time, warranting a presumption that the party entitled thereto
has either abandoned it or declined to assert it. Thus, the
doctrine of laches presumes that the party guilty of
negligence had the opportunity to do what should have been
done, but failed to do so. Conversely, if the said party did
not have the occasion to assert the right, then, he can not be
adjudged guilty of laches. Laches is not concerned with the
mere lapse of time, rather, the party must have been
afforded an opportunity to pursue his claim in order that the
delay may sufficiently constitute laches.[13]
The doctrine of laches is based upon grounds of public
policy which requires, for the peace of society, the
discouragement of stale claims, and is principally a question
of the inequity or unfairness of permitting a right or claim to
be enforced or asserted. There is no absolute rule as to
what constitutes laches; each case is to be determined
according to its particular circumstances. The question of
laches is addressed to the sound discretion of the court, and
since it is an equitable doctrine, its application is controlled
by equitable considerations. It cannot be worked to defeat
justice or to perpetrate fraud and injustice.[14]
In the instant case, respondent filed his claim within the
three-year prescriptive period for the filing of money claims
set forth in Article 291 of the Labor Code from the time the
cause of action accrued. Thus, we find that the doctrine of
laches finds no application in this case.
The labor arbiter and the Court of Appeals did not err
in awarding attorney’s fees to respondent. It is settled that in
actions for recovery of wages or where an employee was
forced to litigate and incur expenses to protect his rights and
interests, he is entitled to an award of attorney’s fees.[15]
However, with regard to Unauthorized Deductions
amounting to P171,780.00;[16] we note that the appellate
court did not state any basis for its award, thus, the same is
deleted for lack of factual and legal basis.
WHEREFORE, the instant petition is PARTLY
GRANTED. The Decision of the Court of Appeals in CA-
G.R. SP No. 77145 dated September 27, 2005 is
AFFIRMED with MODIFICATION that the amount of
P171,780 representing Unauthorized Deductions is
DELETED for lack of basis.
SO ORDERED.
ROSARIO NASI-VILLAR, Petitioner, versus
PEOPLE OF THE PHILIPPINES, Respondent. 2008
Nov 14 2nd Division G.R. No. 176169
DECISION
Tinga, J.:
This is a Petition for Review[1] under Rule 45 of the Rules of
Court filed by petitioner Rosario Nasi-Villar assailing the
Decision[2] dated 27 June 2005 and Resolution[3] dated 28
November 2006 of the Court of Appeals. This case
originated from an Information[4] for Illegal Recruitment as
defined under Sections 6 and 7 of Republic Act (R.A.)
No. 8042[5] filed by the Office of the Provincial Prosecutor of
Davao del Sur on 5 October 1998 for acts committed by
petitioner and one Dolores Placa in or about January 1993.
The Information reads:
That on [sic] or about the month of [January 1993], in the
Municipality of Sta. Cruz, Province of Davao del Sur,
Philippines and within the jurisdiction of the Honorable Court,
the aforenamed accused, conspiring together, confederating
with and mutually helping one another through fraudulent
representation and deceitful machination, did then and there
[willfully], unlawfully and feloniously recruit Nila Panilag for
employment abroad[,] demand and receive the amount of
P6,500.00 Philippine Currency [sic] as placement fee[,] the
said accused being a non-licensee or non-holder of authority
to engage in the recruitment of workers abroad to the
damage and prejudice of the herein offended party.
CONTRARY TO LAW.[6]
On 3 July 2002, after due trial, the Regional Trial Court
(RTC), Br. 18, Digos City, Davao del Sur found the evidence
presented by the prosecution to be more credible than that
presented by the defense and thus held petitioner liable for
the offense of illegal recruitment under the Labor Code, as
amended.[7] The dispositive portion of the decision reads:
WHEREFORE, premises considered, the Court hereby finds
accused ROSARIO NASI-VILLAR GUILTY BEYOND
REASONABLE DOUBT of Illegal Recruitment and, in
accordance with the penalty set forth under the Labor Code,
as amended, said accused is hereby sentenced to an
indeterminate penalty ranging from FOUR YEARS as
minimum to FIVE YEARS as maximum.
On the civil aspect of the case, there being no substantial
proof presented to justify a grant of civil damages, this Court
makes no pronouncement thereon.
With respect to accused Ma. Dolores Placa, who is still at
large, the records of this case are hereby sent to the
archives to be retrieved in the event that said accused would
be apprehended. Issue an alias warrant of arrest for the
apprehension of said accused.
SO ORDERED.[8]
Petitioner appealed to the Court of Appeals raising as sole
issue the alleged error by the trial court in finding her guilty
of illegal recruitment on the basis of the trial court’s
appreciation of the evidence presented by the prosecution.
The Court of Appeals, in its Decision dated 27 June 2005,[9]
following the principle that an appeal in a criminal case
throws the whole case wide open for review, noted that the
criminal acts alleged to have been committed happened
sometime in 1993. However, R.A. No. 8042, under which
petitioner was charged, was approved only on 7 June 1995
and took effect on 15 July 1995. Thus, the Court of Appeals
declared that petitioner should have been charged under the
Labor Code, in particular Art. 13(b) thereof, and not under
R.A. No. 8042. Accordingly, it made its findings on the basis
of the provisions of the Labor Code and found petitioner
liable under Art. 38, in relation to Art. 13(b), and Art. 39 of
the Labor Code. The appellate court affirmed with
modification the decision of the RTC, decreeing in the
dispositive portion, thus:
WHEREFORE, in view of all the foregoing, the appealed
Decision of the Regional Trial Court, 11th Judicial Region,
Br. 18, City of Digos, Province of Davao del Sur, finding
Rosario Nasi-Villar guilty beyond reasonable doubt o the
crime of Illegal Recruitment is AFFIRMED with
MODIFICATION in that Rosario Nasi-Villar is ORDERED to
pay Nila Panilag the sum of P10,000.00 as temperate
damages.
SO ORDERED.[10]
On 28 November 2006, the appellate court denied
petitioner’s motion for reconsideration.[11]
Hence, petitioner filed the instant petition for review.
Petitioner alleges that the Court of Appeals erred in failing to
consider that R.A. No. 8042 cannot be given retroactive
effect and that the decision of the RTC constitutes a violation
of the constitutional prohibition against ex post facto law.
Since R.A. No. 8042 did not yet exist in January 1993 when
the crime was allegedly committed, petitioner argues that
law cannot be used as the basis of filing a criminal action for
illegal recruitment. What was applicable in 1993 is the Labor
Code, where under Art. 38, in relation to Art. 39, the violation
of the Code is penalized with imprisonment of not less than
four (4) years nor more than eight (8) years or a fine of not
less than P20,000.00 and not more than P100,000.00 or
both. On the other hand, Sec. 7(c) of R.A. No. 8042
penalizes illegal recruitment with a penalty of imprisonment
of not less than six (6) years and one (1) day but not more
than twelve (12) years and a fine not less than P200,000.00
nor more than P500,000.00. Thus, the penalty of
imprisonment provided in the Labor Code was raised or
increased by R.A. No. 8042. Petitioner concludes that the
charge and conviction of an offense carrying a penalty
higher than that provided by the law at the time of its
commission constitutes a violation of the prohibition against
ex post facto law and the retroactive application of R.A. No.
8042.
In its Comment[12] dated 7 September 2007, the Office of
the Solicitor General (OSG) argues that the Court of
Appeals’ conviction of petitioner under the Labor Code is
correct. While conceding that there was an erroneous
designation of the law violated by petitioner, the OSG
stresses that the designation of the offense in the
Information is not determinative of the nature and character
of the crime charged against her but the acts alleged in the
Information. The allegations in the Information clearly
charge petitioner with illegal recruitment as defined in Art.
38, in relation to Art. 13(b) of the Labor Code, and penalized
under Art. 39(c) of the same Code. The evidence on record
substantiates the charge to a moral certainty. Thus, while
there was an erroneous specification of the law violated by
petitioner in the Information, the CA was correct in affirming
the RTC’s imposition of the penalty for simple illegal
recruitment under the Labor Code, the OSG concludes.
The petition is denied. We find no reversible error in the
decision arrived at by the Court of Appeals.
In Gabriel v. Court of Appeals,[13] we held that the real
nature of the crime charged is determined, not from the
caption or preamble of the information nor from the
specification of the law alleged to have been violated—these
being conclusions of law—but by the actual recital of facts in
the complaint or information. What controls is not the
designation but the description of the offense charged. From
a legal point of view, and in a very real sense, it is of no
concern to the accused what the technical name of the crime
of which he stands charged is. If the accused performed the
acts alleged in the body of the information, in the manner
stated, then he ought to be punished and punished
adequately, whatever may be the name of the crime which
those acts constitute.[14]
In the case at bar, the prosecution established beyond
reasonable doubt that petitioner had performed the acts
constituting the offense defined in Art. 38, in relation to Art.
13(b) and punished by Art. 39 of the Labor Code, as alleged
in the body of the Information. To prove illegal recruitment,
two elements must be shown, namely: (1) the person
charged with the crime must have undertaken recruitment
activities, or any of the activities enumerated in Article 34 of
the Labor Code, as amended; and (2) said person does not
have a license or authority to do so.[15] Art. 13(b) defines
“recruitment and placement” as “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, is considered engaged
in recruitment and placement.” The trial court found these
two elements had been proven in the case at bar. Petitioner
has not offered any argument or proof that countervails such
findings.
The basic rule is that a criminal act is punishable under the
law in force at the time of its commission. Thus, petitioner
can only be charged and found guilty under the Labor Code
which was in force in 1993 when the acts attributed to her
were committed. Petitioner was charged in 1998 under an
Information that erroneously designated the offense as
covered by R.A. No. 8042, but alleged in its body acts which
are punishable under the Labor Code. As it was proven that
petitioner had committed the acts she was charged with, she
was properly convicted under the Labor Code, and not under
R.A. No. 8042.
There is no violation of the prohibition against ex post facto
law nor a retroactive application of R.A. No. 8042, as alleged
by petitioner. An ex post facto law is one which, among
others, aggravates a crime or makes it greater than it was
when committed or changes the punishment and inflicts a
greater punishment than the law annexed to the crime when
committed.[16] Penal laws and laws which, while not penal
in nature, nonetheless have provisions defining offenses and
prescribing penalties for their violation operate prospectively.
Penal laws cannot be given retroactive effect, except when
they are favorable to the accused.[17]
R.A. No. 8042 amended pertinent provisions of the Labor
Code and gave a new definition of the crime of illegal
recruitment and provided for its higher penalty. There is no
indication in R.A. No. 8042 that said law, including the
penalties provided therein, would take effect retroactively. A
law can never be considered ex post facto as long as it
operates prospectively since its strictures would cover only
offenses committed after and not before its enactment.[18]
Neither did the trial court nor the appellate court give R.A.
No. 8042 a retroactive application since both courts passed
upon petitioner’s case only under the aegis of the Labor
Code. The proceedings before the trial court and the
appellate court did not violate the prohibition against ex post
facto law nor involved a retroactive application of R.A. No.
8042 in any way.
WHEREFORE, the petition is DENIED. The assailed
Decision dated 27 June 2005 and Resolution dated 28
November 2006 of the Court of Appeals are AFFIRMED.
SO ORDERED.
VENTIS MARITIME CORPORATION and
BELSALLY SHIPPING, S.A., Petitioners, versus
COURT OF APPEALS, NATIONAL LABOR
RELATIONS COMMISSION and AGAPITO C.
AGONCILLO, JR., Respondents.2008 Oct 6 1st
Division G.R. No. 160338
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review[1]
assailing the 30 June 2003 Decision[2] and 9 October 2003
Resolution[3] of the Court of Appeals in CA-G.R. SP No.
64391.
The Antecedent Facts
On 8 January 1998, Ventis Maritime Corporation
(Ventis) hired Agapito C. Agoncillo, Jr. (respondent) as a
Third Officer for its principal Belsally Shipping, S.A.
(Belsally). Respondent was deployed on board MV Orchid
Bridge (formerly MV Bangkok Bridge). Under the
Employment Contract, respondent was entitled to a basic
monthly salary of US$650, supervisory allowance of US$228
a month, subsistence allowance of US$33 a month,
guaranteed overtime pay of US$484 a month, and vacation
leave with pay of US$130. The contract period was for ten
months.
On 24 June 1998, MV Orchid Bridge docked in the
port of Manila. Respondent asked permission from the
vessel’s Master to allow him to visit his wife who was
confined at the Seaman’s Hospital in Manila for an
operation. The vessel’s Master allowed respondent to leave
provided that he would rejoin the vessel when it returns to
Singapore and Malaysia on 2 July 1998. Respondent
obtained a cash advance of US$500 prior to his
disembarkation. Two days before his scheduled return to
the vessel, respondent informed Ventis that he could not
leave his wife to rejoin the vessel. He was replaced by one
Celino Dio. Respondent’s wife was discharged from the
hospital on 11 July 1998.
On 24 July 1998, Ventis filed a Complaint for
Disciplinary Action against respondent before the Philippine
Overseas Employment Agency (POEA). Ventis alleged that
respondent committed a serious breach of contract and
prayed, among others, for the cancellation of respondent’s
name from the POEA’s Seaman’s Book of Registry and for
his permanent disqualification from the POEA’s Overseas
Program.
During the pendency of the case, respondent filed a
complaint for illegal dismissal, non-payment of salaries,
overtime pay, vacation pay, and other monetary claims
before the Labor Arbiter against Ventis and Belsally
(petitioners). Petitioners countered that respondent’s act
violated the Seaman’s Oath of Undertaking which requires
the employee to serve his employer at least a one-month
notice before he terminates his contract.
The Ruling of the Labor Arbiter
In her 15 February 1999 Decision,[4] Labor Arbiter
Ermita Abrasaldo- Cuyuca (Labor Arbiter) ruled, as follows:
WHEREFORE, premises considered, judgment is
hereby rendered ordering respondent Ventis Maritime
Corporation and Belsally Shipping S.A. to pay complainant
Agapito C. Agoncillo, Jr. the amount of US$767.84
representing his unpaid salary and other accrued benefits for
the month of June 1998.
Ten percent of the amount awarded as and for
attorney’s fees.
Other claims are dismissed for lack of merit.
SO ORDERED.[5]
The Labor Arbiter ruled that respondent was not
illegally dismissed from employment. The Labor Arbiter ruled
that respondent admitted that he failed to finish his contract
because he failed to rejoin the vessel as he had agreed with
the vessel’s Master. The Labor Arbiter ruled that as Third
Officer and fourth in command of a vessel, respondent’s
duties and responsibilities could not just be delegated to any
member of the crew. The Labor Arbiter ruled that
respondent’s separation from service was of his own doing.
As such, he was not entitled to payment of his salaries for
the unexpired portion of his contract or the three-month
salary under Republic Act No. 8042.[6] The Labor Arbiter
only awarded respondent’s accrued benefits[7] until 24 June
1998.
Respondent appealed from the Labor Arbiter’s
Decision before the National Labor Relations Commission
(NLRC).
The Ruling of the NLRC
In its 21 June 2000 Decision,[8] the NLRC set aside
the Labor Arbiter’s Decision. The NLRC ruled that
respondent did not abandon his work but sought the
permission of the vessel’s Master before disembarking. The
NLRC ruled that respondent’s acts were justified under the
circumstances. The NLRC ruled that under the Collective
Bargaining Agreement (CBA) between All Japan Seamen’s
Union/Associated Marine Officers and Seamen’s Union of
the Philippines and Taiyo Kabushi Kaisha represented by
Ventis, respondent may take a leave of absence during his
spouse’s illness. The NLRC ruled that respondent’s
absence from 2 July 1998 until 11 July 1998 hardly
constituted abandonment as to warrant his dismissal from
the service. The NLRC ruled that before the vessel’s
departure on 2 July 1998, respondent already sent a
message to the Master that he could not rejoin the vessel
and recommended someone to take his place. The NLRC
noted that respondent’s clearance, given by the Japan
Maritime Safety Agency and acknowledged by the ship’s
Master, stated that respondent would disembark for
humanitarian reasons. The NLRC stated that respondent
should also be allowed to extend his leave for humanitarian
reasons. Finally, the NLRC ruled that respondent’s
dismissal was tainted with bad faith.
The dispositive portion of the NLRC’s Decision reads:
WHEREFORE, the appealed decision is set aside.
Judgment is hereby rendered ordering respondents to jointly
and severally pay:
1. complainant his salaries equivalent to the unexpired
portion of his contract;
2. P50,000.00 as moral damages; and
3. Attorney’s fee of 10% of the total award hereof.
The claim for exemplary damages is dismissed for
lack of sufficient basis.
The claim for reinstatement or payment of separation
pay is denied because based on the records, complainant is
a contract worker with a fixed period of employment of ten
(10) months.
SO ORDERED.[9]
Petitioners moved for reconsideration of the NLRC’s
Decision. In its 29 November 2000 Order,[10] the NLRC
denied their motion.
Petitioners filed a petition for certiorari before the Court
of Appeals.
The Ruling of the Court of Appeals
In its 30 June 2003 Decision, the Court of Appeals
affirmed the NLRC’s Decision. The Court of Appeals ruled
that for a dismissal to be valid, two requirements must be
met: the employee must be afforded due process, and the
dismissal must be for a valid cause. The Court of Appeals
sustained the NLRC’s finding that respondent was dismissed
without being informed of the cause of his dismissal and
without being afforded the opportunity to present his side.
The Court of Appeals likewise rejected petitioners’ claim that
respondent abandoned his post as Third Officer when he
failed to return to the vessel on the agreed date. The Court
of Appeals sustained the NLRC’s finding that two days
before he was expected to join the vessel, respondent
informed the ship’s Master that he could not rejoin the vessel
and he recommended someone to take his place. The Court
of Appeals further sustained the NLRC that petitioners
should have allowed respondent to extend his leave for
humanitarian reasons.
The dispositive portion of the Court of Appeals’
Decision reads:
WHEREFORE, this instant Petition for Certiorari with
prayer for the issuance of a Writ of Preliminary Injunction
and/or a Temporary Restraining Order is hereby DENIED.
The Decision of the National Labor Relations Commission
dated June 21, 2000 in NLRC NCR CA No. 09699-99, is
hereby AFFIRMED. Additionally, petitioners Ventis Maritime
Corporation and Bel Sally Shipping, S.A. are directed to
reimburse private respondent Agapito Agoncillo his
placement fee with twelve percent (12%) interest per annum
conformably with Sec. 10 of RA 8042.
SO ORDERED.[11]
Petitioners filed a motion for reconsideration. In its 9
October 2003 Resolution, the Court of Appeals denied their
motion.
Hence, the petition before this Court on the ground that
the Court of Appeals committed a reversible error in
disregarding the findings of the Labor Arbiter that respondent
abandoned his post.
The Issue
The sole issue in this case is whether petitioners
illegally dismissed respondent from employment.
The Ruling of this Court
The petition has merit.
Factual issues may be considered by this Court when
the findings of fact and conclusions of law of the Labor
Arbiter are inconsistent with those of the NLRC and the
Court of Appeals.[12] The general rule is that factual
findings of the labor officials are conclusive and binding
when supported by substantial evidence. Substantial
evidence means that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a
conclusion.[13] This Court will not uphold erroneous
conclusions as when it finds insufficient or insubstantial
evidence on record to support the factual findings, or when it
is perceived that far too much is concluded, inferred, or
deduced from the bare or incomplete facts appearing of
record.[14]
The Labor Arbiter ruled that respondent was not
illegally dismissed from employment. Instead, he failed to
rejoin the vessel as per his agreement with the vessel’s
Master. The NLRC ruled otherwise, finding petitioners guilty
of illegal dismissal. The Court of Appeals sustained the
NLRC. We find that the findings of the Labor Arbiter are
more in accord with the records of the case.
In this case, respondent was not ordered to disembark.
He was not repatriated. When MV Orchid Bridge docked in
Manila, respondent asked for a leave of absence to attend to
his wife who was then in the hospital. His disembarkation
was out of the contract but it was guaranteed by Capt.
Virgilio R. Aris and eventually allowed by the vessel’s Master
on the condition that he would return to the vessel on 2 July
1998. However, two days before his supposed return to the
vessel, respondent informed Ventis that he could not rejoin
the vessel because his wife was still in the hospital. In short,
it was respondent who failed to return to his work. He was
not terminated from his employment.
The Court of Appeals justified its ruling by citing the
CBA between All Japan Seamen’s Union/Associated Marine
Officers and Seamen’s Union of the Philippines and Taiyo
Kabushi Kaisha which states:
When the spouse or child, or in the case of a single
man, a parent, dies or falls dangerously ill (and when the
company can confirm it) whil[e] the seafarer is abroad, the
company shall make every effort to repatriate the seafarer
concerned as quickly as possible and pay for the repatriation
if seafarer is repatriated.[15]
The Court of Appeals ruled that the CBA clearly
afforded respondent to take a leave of absence during his
wife’s illness. However, in this case, respondent did not
seek to extend his leave of absence. He did not try to use
his emergency leave. Instead, he just informed Ventis that
he would not be able to rejoin the vessel as scheduled.
There was also no evidence on record to show that
respondent’s wife was dangerously ill that would warrant the
application of the CBA. Respondent did not even claim that
he had to take an extended leave because his wife was
dangerously ill. Thus, the Court of Appeals erred in applying
the CBA in this case.
The Court of Appeals ruled that when his services
were terminated, respondent immediately filed a complaint
for illegal dismissal against petitioners. According to the
Court of Appeals, respondent’s act is contrary to the
allegation of abandonment. The records state otherwise.
The Court notes that on 24 July 1998, 22 days after
respondent was supposed to return but failed to join MV
Orchid Bridge, Ventis filed a complaint before the POEA
against respondent. On the other hand, respondent’s
complaint for illegal dismissal was filed only on 27 October
1998. Obviously, the filing of the illegal dismissal case was
an afterthought on the part of respondent. The records show
that the POEA case filed by Ventis was resolved against
respondent. The POEA found respondent liable for
abandonment of post and imposed upon him the penalty of
suspension from participating in its overseas employment
program for six months.[16] The POEA decision became
final and executory on 12 May 2005.[17] Hence, there is no
basis for the finding of the NLRC and the Court of Appeals
that respondent did not abandon his work and was instead
terminated from employment.
WHEREFORE, we SET ASIDE the 30 June 2003
Decision and 9 October 2003 Resolution of the Court of
Appeals in CA-G.R. SP No. 64391 affirming the 21 June
2000 Decision of the NLRC. We REINSTATE the 15
February 1999 Decision of the Labor Arbiter.
SO ORDERED.
DEOGRACIAS CANSINO, Petitioner, versus
PRUDENTIAL SHIPPING AND MANAGEMENT
CORPORATION (in substitution for MEDBULK
MARITIME MANAGEMENT CORPORATION) and
SEA JUSTICE, S.A., Respondents.2007 Feb 201st
Division G.R. No. 155338
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us is a petition for review on certiorari filed
under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, assailing the Decision[1] of the Court of Appeals
dated March 21, 2002 in CA-G.R. SP No. 57111.
The facts of the case, as gleaned from the records,
are:
On July 18, 1996, pursuant to a contract of
employment,[2] Deogracias Cansino, petitioner, worked as a
seaman in the Medbulk Maritime Management Corporation,
a local manning agent of Sea Justice, S.A., a Greek shipping
company. Under the contract, petitioner will serve on board
the vessel M/V Commander for a term of twelve (12) months
with a monthly basic salary of US$470.00, fixed overtime
pay of US$141.00 for 120 hours, and vacation leave with
pay of US$63.00 per month, or a total monthly compensation
of US$674.00. The contract was then processed and
approved by the Philippine Overseas Employment
Administration (POEA).
While on board the M/V Commander, the ship’s
master, Captain Nikolaos Kandylis, unilaterally altered the
terms and conditions of the employment contract.
Petitioner’s position as seaman was changed to pumpman.
Actually this was a promotion considering that his initial
monthly pay of US$674.00 was raised to US$1,164.00.
Later, Captain Kandylis received several derogatory
reports against petitioner, such as drunkenness,
insubordination, abandonment of post, and disorderly
behavior. These were duly recorded in the ship’s logbook.
On August 10, 1996, seven (7) members of the crew
of M/V Commander (including petitioner) submitted a
request to Captain Kandylis for early repatriation because of
family problems. Their requests were granted. After
disembarking, they were furnished hotel accommodations
and repatriation expenses. Petitioner then returned to the
Philippines.
On November 18, 1996, petitioner filed with the
Arbitration Branch, NLRC, National Capital Region a
complaint for illegal dismissal and underpayment of wages
against Medbulk Maritime Management Corporation[3] and
Sea Justice, S.A.
On August 31, 1998, the Labor Arbiter dismissed
petitioner’s complaint, holding that his employment was
validly terminated. He was found liable for drunkenness, a
ground for dismissal from the service under his contract of
employment.
On appeal, the NLRC, in its Decision, set aside the
Labor Arbiter’s judgment, thus:
ACCORDINGLY, premises considered, the August 31,
1998 decision of the Labor Arbiter is hereby set aside and
new one entered ordering respondent Prudential Shipping to
pay complainant the amount of US$258.00 as underpayment
of wages from September to November 1886 and
US$10,000.00 representing his salary from December 1996
to July 1997.
SO ORDERED.
Respondents filed a motion for reconsideration but it
was denied.
Respondents then filed with the Court of Appeals a
petition for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure, as amended.
On March 21, 2002, the Court of Appeals promulgated
its Decision granting respondents’ petition and setting aside
the NLRC Decision.
Petitioner filed a motion for reconsideration.
However, it was denied by the appellate court on September
5, 2002.
Hence, the instant petition raising the sole issue of
whether the Court of Appeals erred in holding that
petitioner’s dismissal from employment was for cause.
Section 2, Rule VII, Book IV of the POEA Rules And
Regulations Governing Overseas Employment provides:
SEC. 2. Grounds for Disciplinary Action. – Commission
by the worker of any of the offenses enumerated below or of
similar offenses while working overseas shall be subject to
appropriate disciplinary actions as the Administration may
deem necessary:
xxx
(c) Desertion or abandonment;
(d) Drunkenness, especially where the laws of the
host country prohibit intoxicating drinks;
xxx
(g) Creating trouble at the worksite or in the vessel;
Appendix 2 of the POEA Standard Employment Contract for
Filipino migrant workers contains a list of offenses with
corresponding sanctions. This list includes drunkenness.
Petitioner contends that Captain Kandylis has a
grudge against him, the reason why he entered in the
Master’s Report that he (petitioner) was involved in a fight
among several members of the crew.
There is nothing in the records of this case that supports
petitioner’s contention. On the contrary, the ship’s log of the
M/V Commander states that he was drunk four (4) times and
was not in his post once.
The Master’s Report[4] dated October 6, 1996 signed
by Captain Kandylis contains these entries: “the illegal
consumption of alcoholic drinks by the Philippine crew put in
danger the crew, the vessel, her cargo, the other nearby
sailing vessels as well as environment from eventual
destruction.” One of the crew members named therein was
petitioner. The Report shows that he was always drunk,
disorderly and disobedient; and that the “Conformity for
Sobriety” which every member of the crew was made to sign
was violated every day.
In Haverton Shipping Ltd v. National Labor Relations
Commission,[5] we described the ship’s log as the official
record of a ship’s voyage which its captain is obligated by
law to keep wherein, among others, he records the decisions
he has adopted, a summary of the performance of the
vessel, and other daily events. The entries made therein by
a person performing a duty required by law are prima facie
evidence of the facts stated therein. In Abacast Shipping and
Management Agency, Inc. v. National Labor Relations
Commission,[6] we said that the logbook is “a respectable
record that can be relied upon” when the entries therein are
presented in evidence. In Stolt-Nielsen Marine Services
(Phils.), Inc. v. National Labor Relations Commission,[7]
citing Haverton and Abacast, we reiterated the evidentiary
value of the ship’s log. Consequently, we find no reason
why we should not give credence to Captain Kandylis’
Master’s Report.
In the earlier case of Seahorse Maritime Corporation
v. National Labor Relations Commission,[8] which likewise
involved a seaman who was prone to intoxication and
creating trouble aboard ship when drunk, we held that
serious misconduct in the form of drunkenness and
disorderly and violent behavior, habitual neglect of duty, and
insubordination or willful disobedience to the lawful orders of
his superior officer, are just causes for dismissal of an
employee under Article 282[9] of the Labor Code, and that
where the dismissal is for cause, the erring seaman is
neither entitled to separation pay or to the salaries for the
unexpired portion of his contract.
We likewise cannot sustain petitioner’s claim that he
was underpaid. In fact, Captain Kandylis increased his
monthly compensation from US$674.00 to US$1,164.00
which he received. While the contract as altered was not
approved by the POEA, however, the lack of such approval
is inconsequential since the alteration redounded to
petitioner’s benefit.
WHEREFORE, we DENY the petition and AFFIRM the
assailed Decision of the Court of Appeals in CA-G.R. SP No.
57111.
Costs against petitioner.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, Appellee, versus
CAPT. FLORENCIO O. GASACAO, Appellant.2005
Nov 11 1st Division G.R. No. 168445
DECISION
YNARES-SANTIAGO, J.:
This is an appeal from the May 18, 2005 Decision[1] of the
Court of Appeals in CA-G.R. CR No. 00800 dismissing the
appeal of appellant, Florencio O. Gasacao and affirming the
March 5, 2001 Joint Decision[2] of the Regional Trial Court
(RTC) of Quezon City, Branch 218, finding appellant guilty
beyond reasonable doubt of Large Scale Illegal Recruitment
in Crim. Case No. Q-00-94240 and acquitting him of the
charge in Crim. Case No. Q-00-94241.
The factual antecedents are as follows:
Appellant was the Crewing Manager of Great Eastern
Shipping Agency Inc., a licensed local manning agency,
while his nephew and co-accused, Jose Gasacao, was the
President. As the crewing manager, appellant’s duties
included receiving job applications, interviewing the
applicants and informing them of the agency’s requirement
of payment of performance or cash bond prior to
deployment.
On August 4, 2000, appellant and Jose Gasacao were
charged with Large Scale Illegal Recruitment defined under
Section 6, paragraphs (a), (l) and (m) of Republic Act (RA)
No. 8042 or the Migrant Workers and Overseas Filipinos Act
of 1995, and penalized under Section 7 (b) of the same law,
before the RTC of Quezon City.
The informations read:
In Criminal Case No. Q-00-94240
That sometime in the months of May to December, 1999 or
thereabout, in Quezon City, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating and mutually
helping one another, did then and there willfully, unlawfully
and criminally recruit, enlist and promise overseas
employment to the private complainants, namely, Lindy M.
Villamor, Dennis Cabangahan, Erencio C. Alaba, Victorino
U. Caderao, Rommel B. Patolen, Joseph A. Demetria and
Louie A. Arca, as overseas seamen/seafarers, the said
accused thereby charging, exacting and collecting from the
said private complainants cash bonds and/or performance
bonds in amounts ranging from P10,000.00 to P20,000.00
without any authority to do so and despite the fact that the
same is prohibited by the POEA Rules and Regulations,
which amount is greater than that specified in the schedule
of allowable fees prescribed by the Secretary of Labor and
Employment, and despite the payment of the said fees, the
said accused failed to actually deploy the private
complainants without valid reasons as determined by the
Department of Labor and Employment and despite the
failure of deployment, the said accused failed to reimburse
the expenses incurred by the said private complainants in
connection with their documentation and processing for the
purpose of their supposed deployment.
CONTRARY TO LAW.[3]
In Criminal Case No. Q-00-94241
That sometime in the months of September to November
1999 or thereabout, in Quezon City, Metro Manila,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating
and mutually helping one another, did then and there
willfully, unlawfully and criminally recruit, enlist and promise
overseas employment to the private complainants, namely,
Melvin I. Yadao, Frederick Calambro and Andy Bandiola, as
overseas seamen/seafarers, the said accused thereby
charging, exacting and collecting from the said private
complainants cash bonds and/or performance bonds in
amounts ranging from P10,000.00 to P20,000.00 without any
authority to do so and despite the fact that the same is
prohibited by the POEA Rules and Regulations, which
amount is greater that that specified in the schedule of
allowable fees prescribed by the Secretary Labor and
Employment, and despite the payment of said fees, the said
accused failed to actually deploy the private complainants
without valid reasons as determined by the Department of
Labor and Employment and despite the failure of
deployment, the said accused failed to reimburse the
expenses incurred by the said private complainants in
connection with their documentation and processing for the
purpose of their supposed deployment.
SO ORDERED.[4]
Only the appellant was arrested while Jose Gasacao
remained at large. When arraigned, appellant pleaded not
guilty to the offense charged. Thereafter, trial on the merits
ensued. On March 5, 2001, the RTC of Quezon City,
Branch 218, rendered its Joint Decision convicting appellant
of Large Scale Illegal Recruitment in Crim. Case No. Q-00-
94240 and acquitting him of the charge in Crim. Case No. Q-
00-94241. The dispositive portion of the joint decision reads:
WHEREFORE, judgment is hereby rendered as follows:
1. In Crim. Case No. Q-00-94240, the prosecution
having established the guilt of the accused beyond
reasonable doubt, the Court finds Florencio O. Gasacao
GUILTY of Large Scale Illegal Recruitment punishable under
Section 7, (b) of R.A. 8042. He is sentenced to suffer life
imprisonment and a fine of P500,000.00. He shall also
indemnify Dennis C. Cabangahan in the amount of
P8,750.00; Lindy M. Villamor for P20,000.00; Victorino U.
Caderao for P20,000.00; Rommel B. Patolen for P20,000.00;
and Erencio C. Alaba for P20,000.00. Complainants Louie A.
Arca and Joseph A. Demetria did not testify.
2. In Crim. Case No. Q-00-94241, complainants Melvin
I. Yadao, Frederick Calambro and Andy Bandiola did not
testify. Moreover, the Court believes all these complainants
should have been grouped in just one (1) information.
Hence, for failure of the prosecution to prove the guilt of the
accused beyond reasonable doubt, the Court finds Florencio
O. Gasacao NOT GUILTY of the offense charged.
SO ORDERED.[5]
Conformably with our pronouncement in People v. Mateo,[6]
which modified pertinent provisions of the Rules of Court
insofar as they provide for direct appeals from the RTC to
the Supreme Court in cases where the penalty imposed is
death, reclusion perpetua or life imprisonment, as in this
case, as well as this Court’s Resolution dated September 19,
1995, we resolved on February 2, 2005 to transfer the case
to the Court of Appeals for appropriate action and
disposition.[7]
On May 18, 2005, the Court of Appeals promulgated the
assailed Decision, the dispositive portion of which reads:
WHEREFORE, premises considered, the present appeal is
hereby DISMISSED for lack of merit. The appealed Joint
Decision dated March 5, 2001 of the trial court in Criminal
Case No. Q-00-94240 is hereby AFFIRMED and UPHELD.
With costs against the accused-appellant.
SO ORDERED.[8]
Hence, this appeal.
The core issue for resolution is whether error attended the
trial court’s findings, as affirmed by the Court of Appeals,
that appellant was guilty beyond reasonable doubt of the
crime of large scale illegal recruitment.
RA No. 8042 defines illegal recruitment as follows:
II. ILLEGAL RECRUITMENT
Sec. 6. DEFINITIONS. – For purposes of this Act, illegal
recruitment shall mean any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, procuring workers
and includes referring, contract services, promising or
advertising for employment abroad, whether for profit or not,
when undertaken by a non-licensee or non-holder of
authority contemplated under Article 13(f) of Presidential
Decree No. 442, as amended, otherwise known as the Labor
Code of the Philippines: Provided, that such non-licensee or
non-holder who, in any manner, offers or promises for a fee
employment abroad to two or more persons shall be deemed
so engaged. It shall likewise include the following acts,
whether committed by any persons, whether a non-licensee,
non-holder, licensee or holder of authority.
(a) To charge or accept directly or indirectly any
amount greater than the specified in the schedule of
allowable fees prescribed by the Secretary of Labor and
Employment, or to make a worker pay any amount greater
than that actually received by him as a loan or advance;
....
(l) Failure to actually deploy without valid reason as
determined by the Department of Labor and Employment;
and
(m) Failure to reimburse expenses incurred by the
workers in connection with his documentation and
processing for purposes of deployment, in cases where the
deployment does not actually take place without the worker's
fault. Illegal recruitment when committed by a syndicate or in
large scale shall be considered as offense involving
economic sabotage.
Illegal recruitment is deemed committed by a syndicate
carried out by a group of three (3) or more persons
conspiring or confederating with one another. It is deemed
committed in large scale if committed against three (3) or
more persons individually or as a group.
A license is a document issued by the Department of Labor
and Employment (DOLE) authorizing a person or entity to
operate a private employment agency, while an authority is a
document issued by the DOLE authorizing a person or
association to engage in recruitment and placement
activities as a private recruitment entity. However, it appears
that even licensees or holders of authority can be held liable
for illegal recruitment should they commit any of the above-
enumerated acts.
Thus, it is inconsequential that appellant committed large
scale illegal recruitment while Great Eastern Shipping
Agency, Inc. was holding a valid authority. We thus find that
the court below committed no reversible error in not
appreciating that the manning agency was a holder of a valid
authority when appellant recruited the private complainants.
There is no merit in appellant’s contention that he could not
be held liable for illegal recruitment since he was a mere
employee of the manning agency, pursuant to Section 6 of
RA No. 8042 which provides:
The persons criminally liable for the above offenses are the
principals, accomplices and accessories. In case of juridical
persons, the officers having control, management or
direction of their business shall be liable.
Contrary to appellant’s claim, he is not a mere employee of
the manning agency but the crewing manager. As such, he
receives job applications, interviews applicants and informs
them of the agency’s requirement of payment of
performance or cash bond prior to the applicant’s
deployment. As the crewing manager, he was at the
forefront of the company’s recruitment activities.
Private complainant Lindy Villamor testified that it was
appellant who informed him that if he will give a cash bond of
P20,000.00, he will be included in the first batch of
applicants to be deployed. Notwithstanding the payment of
the cash bond as evidenced by a receipt dated December
15, 1999 and issued by the appellant, Villamor was not
deployed overseas. He further testified that when he found
out that appellant was no longer connected with Great
Eastern Shipping Agency Inc., he confronted Jose Gasacao
and showed to him a photocopy of the receipt. Jose
Gasacao gave him the address of the appellant but he failed
to recover the amount from the latter.
Another private complainant, Erencio C. Alaba testified that
he applied as a seaman with Great Eastern Shipping Agency
Inc. in May 1999 and submitted all the requirements to
appellant. The latter told Alaba that after payment of a cash
bond, he will be deployed within three months. On June 3,
1999, Alaba gave P10,000.00 to the appellant as evidenced
by a cash voucher which was approved and signed by the
appellant in the presence of Alaba.
Afterwards, appellant asked Alaba to have his medical
examination. He was also informed that those who had
completed paying the P20,000.00 cash bond will have
priority in deployment. Thus, Alaba gave another
P10,000.00 to appellant on August 2, 1999 and was again
informed that he will be deployed in a dredging or supply
boat within three months from August 1999. Despite
appellant’s representations, Alaba was never deployed and
was also unable to recover the amount of the cash bond that
he paid.
Private complainant Dennis Cabangahan testified that he
applied as a seaman with Great Eastern Shipping Agency
Inc. on July 27, 1999 and paid the cash bond of P19,000.00
as evidenced by a receipt issued by appellant. The latter
informed him that he will be deployed abroad within three
months. As what had happened to the other complainants,
Cabangahan was never deployed overseas nor did he
recover his money.
Victoriano Cadirao[9] also testified that on August 1, 1999,
he applied with the manning agency for the position of mess
man. He submitted his application to appellant who told him
to come back when he has the money to cover the cash
bond of P20,000.00. Appellant told him that the payment of
the cash bond is optional, but that his deployment will be
fast-tracked if he pays the cash bond. On August 10, 1999,
he gave P20,000.00 to appellant who issued a receipt.
When the promised employment failed to materialize, the
appellant told Cadirao to wait for another dredging vessel. In
December 1999, he found out that appellant was no longer
connected with Great Eastern Shipping Agency Inc. so he
went to his residence and demanded the return of his
money. Appellant however refused to return the amount of
the cash bond.
On the other hand, Rommel B. Patolen testified that he
applied with Great Eastern Shipping Agency Inc. as an
ordinary seaman in May 1999. After complying with the
requirements, appellant told him to report to the agency
thrice a week. From May to December 1999, Patolen
reported to the agency as instructed. On December 11,
1999, he gave P20,000.00 to appellant who acknowledged
its receipt. Patolen further testified that he paid the cash
bond because appellant told him that his prospective
employer will arrive in December 1999 from Saudi Arabia
with a vessel to accommodate him. He was further advised
that he could leave within three months if he paid the cash
bond. However, Patolen was never deployed and when he
found out that appellant was no longer connected with Great
Eastern Shipping Agency Inc., he went to the house of the
latter and informed him that he was withdrawing his
application. Appellant asked him to wait for his new agency,
Ocean Grandeur, which has no license yet.
The foregoing testimonies of the private complainants clearly
established that appellant is not a mere employee of Great
Eastern Shipping Agency Inc. As the crewing manager, it
was appellant who made representations with the private
complainants that he can secure overseas employment for
them upon payment of the cash bond.
It is well settled that to prove illegal recruitment, it must be
shown that 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.
[10] Appellant’s act of promising the private complainants
that they will be deployed abroad within three months after
they have paid the cash bond clearly shows that he is
engaged in illegal recruitment.
The trial court’s appreciation of the complainants’
testimonies deserves the highest respect since it was in a
better position to asses their credibility.
Even assuming that appellant was a mere employee, such
fact is not a shield against his conviction for large scale
illegal recruitment. In the case of People v. Cabais,[11] we
have held that an employee of a company or corporation
engaged in illegal recruitment may be held liable as
principal, together with his employer, if it is shown that he
actively and consciously participated in the recruitment
process. We further stated that:
In this case, evidence showed that accused-appellant was
the one who informed complainant of job prospects in Korea
and the requirements for deployment. She also received
money from them as placement fees. All of the complainants
testified that they personally met the accused-appellant and
transacted with her regarding the overseas job placement
offers. Complainants parted with their money, evidenced by
receipts signed by accused Cabais and accused Forneas.
Thus, accused-appellant actively participated in the
recruitment of the complainants.[12]
Clearly, the acts of appellant vis-à-vis the private
complainants, either as the crewing manager of Great
Eastern Shipping Agency Inc. or as a mere employee of the
same, constitute acts of large scale illegal recruitment which
should not be countenanced.
We find no reason to deviate from the findings of the trial
court that appellant is guilty beyond reasonable doubt of
large scale illegal recruitment. It was established that he
promised overseas employment to five applicants, herein
private complainants. He interviewed and required them to
complete and submit documents purportedly needed for their
employment. Although he informed them that it is optional,
he collected cash bonds and promised their deployment
notwithstanding the proscription against its collection under
Section 60 of the Omnibus Rules and Regulations
Implementing R.A. No. 8042[13] which state that:
SEC. 60. Prohibition on Bonds and Deposits. – In no case
shall an employment agency require any bond or cash
deposit from the worker to guarantee performance under
the contract or his/her repatriation.
We find as flimsy and self serving appellant’s assertion that
he was unaware of the prohibition against the collection of
bonds or cash deposits from applicants. It is an established
dictum that ignorance of the law excuses no one from
compliance therewith.[14] The defense of good faith is
neither available.
It is also undisputed that appellant failed to deploy the
private complainants without any valid reason, this
notwithstanding his promise to them that those who can pay
the cash bond will be deployed within three months from
payment of the same. Such failure to deploy constitutes a
violation of Section 6 (l) of RA No. 8042. Worse, when it
became clear that appellant cannot deploy the private
complainants without their fault, he failed to return the
amount of the cash bond paid by them.
Illegal recruitment is deemed committed in large scale if
committed against three or more persons individually or as a
group. In this case, five complainants testified against
appellant’s acts of illegal recruitment, thereby rendering his
acts tantamount to economic sabotage. Under Section 7 (b)
of RA No. 8042, the penalty of life imprisonment and a fine
of not less than P500,000.00 nor more than P1,000.000.00
shall be imposed if illegal recruitment constitutes economic
sabotage.
Verily, the trial court and the Court of Appeals correctly
found appellant guilty beyond reasonable of large scale
illegal recruitment.
WHEREFORE, the May 18, 2005 Decision of the Court of
Appeals in CA-G.R. CR No. 00800 is AFFIRMED.
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
versus Antonio Nogra, Accused-Appellant. 2008
Aug 29 3rd Division G.R. No. 170834
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is an appeal from the Decision[1]
dated August 31, 2005 of the Court of Appeals (CA) in CA-
G.R. C.R. No. 00244 affirming the Judgment of the Regional
Trial Court (RTC), Branch 19, Naga City in Criminal Case
No. 98-7182, convicting Antonio Nogra (appellant) of large
scale illegal recruitment under Section 6(m) in relation to
Section 7(b) of Republic Act No. 8042 (R.A. No. 8042),[2]
otherwise known as the “Migrant Workers and Overseas
Filipinos Act of 1995.”[3]
The inculpatory portion of the Information charging one
Lorna G. Orciga and appellant with large scale illegal
recruitment reads as follows:
That sometime during the period of March 1997 to
November, 1997 in the City of Naga, Philippines, and within
the jurisdiction of this Honorable Court, the above-named
accused, being the General Manager and Operations
Manager of LORAN INTERNATIONAL OVERSEAS
RECRUITMENT CO., LTD., with office at Concepcion
Grande, Naga City, conspiring, confederating together and
mutually helping each other, representing themselves to
have the capacity to contract, enlist, hire and transport
Filipino workers for employment abroad, did then and there
willfully, unlawfully and criminally, for a fee, recruit and
promise employment/job placement to the herein
complaining witnesses RENATO ALDEN, OLIVER
SARMIENTO, FE ZABALLA, TEOFILA LUALHATI, PILIPINA
MENDOZA and KERWIN DONACAO, but failed to actually
deploy them without valid reason, as well as to reimburse
their documentation, placement and processing expenses
for purposes of deployment despite their repeated demands
for the return of the same, to their damage and prejudice in
the amounts as may be proven in court.
CONTRARY TO LAW.[4]
Only appellant was brought to the jurisdiction of
the trial court since Lorna G. Orciga was then and still is at
large. Arraigned with the assistance of counsel, appellant
entered a plea of “NOT GUILTY” to the crime charged.
Thereafter, trial of the case ensued.
Of the six complainants, the prosecution was able
to present five of them, namely: Renato Alden, Fe Zaballa,
Teofila Lualhati, Filipina Mendoza and Kerwin Donacao.
Anaielyn Sarmiento, wife of complainant Oliver Sarmiento,
also testified for the prosecution.
The facts, as established by the prosecution, are
aptly summarized by the Office of the Solicitor General
(OSG), as follows:
Appellant held office at Loran International
Overseas Recruitment Co., (Loran) in Concepcion Grande,
Naga City (p. 4, TSN, October 19, 1998). A nameplate on
his table prominently displayed his name and position as
operations manager (p. 11, TSN, November 17, 1998; p. 4,
TSN, January 12, 1999; p. 21, TSN, November 19, 1998).
The license of Loran also indicated appellant as the
operations manager (p. 5, TSN, February 10, 1999). The
POEA files also reflect his position as operations manager of
Loran (Exhibit L to L-4, pp. 5-9, TSN, November 19, 1998).
Sometime in December 1996, Renato Alden went
to Loran to apply for a job as hotel worker for Saipan. He
was interviewed by appellant, who required Alden to submit
an NBI clearance and medical certificate and to pay the
placement fee. Alden paid the amount of P31,000.00. The
additional amount of P4,000.00 was to be paid prior to his
departure to Saipan (pp. 5-6, TSN, November 17, 1998).
Appellant promised Alden that he would leave within a
period of three to four months. After one year of waiting
Alden was not able to leave. Alden filed a complaint with the
NBI when he was not able to recover the amount and could
no longer talk with appellant (p. 6, TSN, November 17,
1998).
On April 18, 1997, Teofila Lualhati applied for
employment as hotel worker for Saipan with Loran (pp. 1-3,
10, TSN, November 19, 1998). Appellant required her to
submit an NBI clearance and medical certificate and to pay
the processing fee in the amount of P35,000.00 so she could
leave immediately. She paid the amount of P35,000.00 to
Loran's secretary in the presence of appellant. She was
promised that within 120 days or 4 months she would be
able to leave (pp. 11-13, TSN, November 19, 1998). Despite
repeated follow-ups, Lualhati was unable to work in Saipan.
She demanded the refund of the processing fee. When the
amount was not returned to her, she filed a complaint with
the NBI (pp. 14-15, TSN, November 19, 1998).
Sometime in April 1998, Filipina Mendoza went to
Loran to apply for employment as hotel worker (p. 4, TSN,
July 12, 1999). She paid the amount of P35,000.00 as
placement fee. When she was not able to work abroad, she
went to Loran and sought the return of P35,000.00 from
appellant (p. 7, TSN, January 21, 1999).
Sometime in October 1997, Kerwin Donacao went
to Loran to apply for employment as purchaser in Saipan (p.
4, TSN, February 10, 1999). He was required to submit NBI
clearance, police clearance, previous employment certificate
and his passport. He paid the placement fee of P35,000.00
(pp.4-5, TSN, February 10, 1999). After paying the amount,
he was told to wait for two to three months. When he was
not able to leave for Saipan, he demanded the return of the
placement fee, which was not refunded (pp. 6-7, TSN,
February 10, 1999).
During the first week of November 1997, Annelyn
Sarmiento and her husband, Oliver Sarmiento, applied for
overseas employment. For the application of Oliver
Sarmiento, they submitted his medical certificate and
certification of previous employment. They were also made
to pay the amount of P27,000.00 as processing fee. Oliver
Sarmiento was promised that within 1 month, he would be
able to leave. Initially, Oliver Sarmiento was told that
allegedly his visa was yet to be obtained. When he was not
able to leave and what he paid was not refunded, he filed a
complaint with the NBI (pp. 4-6, TSN, April 23, 1999).
Sometime in May 1997, Fe Zaballa applied for
overseas employment in Saipan with Loran (p. 4, TSN, May
21, 1999). She was required to submit her medical
certificate, original copy of her birth certificate, NBI clearance
and police clearance. She was also required to pay the
amount of P35,000.00 as placement fee. When she could
not be deployed, she sought to recover the amount she paid,
which was not returned (pp. 7-8, TSN, May 2, 1999).[5]
On the other hand, appellant presented the
following evidence:
The defense presented [appellant] Antonio Nogra
and the agency's secretary and cashier, Maritess Mesina.
From their testimonies it was established that
LORAN INTERNATIONAL OVERSEAS RECRUITMENT
CO., LTD., (LORAN, for brevity) was owned by accused
Lorna Orciga and Japanese national Kataru Tanaka (TSN,
September 30, 2000, p. 7). Sometime in July 1994,
[appellant] Antonio Nogra read from outside the agency's
main office at Libertad, Mandaluyong City that it was in need
of a liaison officer. He applied for the position. The part-
owner and co-accused, Lorna Orciga, hired him instead as
Operations Manager as the agency was then still in the
process of completing the list of personnel to be submitted to
the POEA. (TSN, January 31, 2001, p. 5).
[Appellant] Nogra started working with LORAN in
October 1994. In 1995, he was transferred to Naga City
when the agency opened a branch office thereat. Although
he was designated as the Operations Manager, [appellant]
Nogra was a mere employee of the agency. He was
receiving a monthly salary of P5,000.00 and additional
P2,000.00 monthly meal allowance. He was in-charge of the
advertisement of the company. He also drove for the
company. He fetched from the airport the agency's visitors
and guests and drove them to hotels and other places.
(TSN, May 3, 2000, pp. 2-9).
Although part-owner Lorna Orciga was stationed
in Manila, she, however, actually remained in control of the
branch office in Naga City. She conducted the final interview
of the applicants and transacted with the foreign employers.
She also controlled the financial matters and assessment
fees of the agency in Naga City (TSN, September 20, 2000,
pp. 8-9). The placement and processing fees collected by
the agency in Naga City were all deposited in the bank
account of Lorna Orciga and not a single centavo went to the
benefit of [appellant] Nogra (TSN, January 10, 2000, pp. 14-
22).[6]
On March 26, 2003, the RTC rendered
Judgment[7] finding appellant guilty beyond reasonable
doubt of the crime charged. The fallo of the decision reads:
WHEREFORE, the Court finds the accused
ANTONIO NOGRA guilty beyond reasonable doubt of the
crime of Illegal Recruitment Committed in Large Scale
defined under Sections 6(m) and 7(b) of RA 8042, otherwise
known as The Migrant Workers and Overseas Filipinos Act
of 1995 and, accordingly, hereby imposes upon him the
penalty of life imprisonment and a fine of Five hundred
thousand pesos (P500,000.00).
SO ORDERED.[8]
On April 10, 2003, appellant filed a Notice of
Appeal.[9] The RTC ordered the transmittal of the entire
records of the case to this Court.
Conformably to the ruling in People v. Mateo,[10]
the case was referred to the CA for intermediate review.[11]
On August 31, 2005, the CA rendered a
Decision[12] affirming the decision of the RTC. The CA held
that being an employee is not a valid defense since
employees who have knowledge and active participation in
the recruitment activities may be criminally liable for illegal
recruitment activities, based upon this Court's ruling in
People v. Chowdury[13] and People v. Corpuz;[14] that
appellant had knowledge of and active participation in the
recruitment activities since all the prosecution witnesses
pinpointed appellant as the one whom they initially
approached regarding their plans of working overseas and
he was the one who told them about the fees they had to
pay, as well as the papers that they had to submit; that the
mere fact that appellant was not issued special authority to
recruit does not exculpate him from any liability but rather
strongly suggests his guilt; that appellant's invocation of non-
flight cannot be weighed in his favor since there is no
established rule that non-flight is, in every instance, an
indication of innocence.
A Notice of Appeal[15] having been timely filed by
appellant, the CA forwarded the records of the case to this
Court for further review.
In his Brief, appellant assigns as errors the
following:
I. THE TRIAL COURT ERRED IN NOT FINDING THAT THE
ACCUSED-APPELLANT WAS A MERE EMPLOYEE OF
THE RECRUITMENT AGENCY DESPITE HIS
DESIGNATION AS ITS OPERATIONS MANAGER.
II. THE TRIAL COURT ERRED IN CONVICTING THE
ACCUSED-APPELLANT OF THE OFFENSE-CHARGED
DESPITE THE FACT THAT UNDER THE LAW, HE WAS
NOT CRIMINALY LIABLE FOR HIS AGENCY'S
TRANSACTIONS.[16]
Appellant argues that the agency was under the
management and control of Orciga, and that he was a mere
employee; that he could not be held personally liable for
illegal recruitment in the absence of any showing that he was
validly issued special authority to recruit workers, which was
approved by the Philippine Overseas Employment
Administration (POEA); that his non-flight is indicative of his
innocence.
Appellee, through the OSG, counters that
appellant is not a mere clerk or secretary of Loran, but its
Operations Manager who directly participated in the
recruitment scheme by promising private complainants work
abroad, but failed to deploy them and refused to reimburse
the applicants' placement fees when demanded.
The appeal fails. The CA did not commit any error
in affirming the decision of the RTC.
R.A. No. 8042 broadened the concept of illegal
recruitment under the
Labor Code[17] and provided stiffer penalties,
especially those that constitute economic sabotage, i.e.,
Illegal Recruitment in Large Scale and Illegal Recruitment
Committed by a Syndicate.
Section 6 of R.A. No. 8042 defined when
recruitment is illegal:
SEC. 6. Definition. – For purposes of this Act,
illegal recruitment shall mean any act of canvassing,
enlisting, contracting, transporting, utilizing, hiring, or
procuring workers and includes referring, contract services,
promising or advertising for employment abroad, whether for
profit or not, when undertaken by a non-licensee or non-
holder of authority contemplated under Article 13(f) of
Presidential Decree No. 442, as amended, otherwise known
as the Labor Code of the Philippines: Provided, That any
such non-licensee or non-holder who, in any manner, offers
or promises for a fee employment abroad to two or more
persons shall be deemed so engaged. It shall likewise
include the following acts, whether committed by any person,
whether a non-licensee, non-holder, licensee or holder of
authority:
xxxx
(l) Failure to actually deploy without valid reason as
determined by the Department of Labor and Employment;
and
(m) Failure to reimburse expenses incurred by the workers in
connection with his documentation and processing for
purposes of deployment, in cases where the deployment
does not actually take place without the worker's fault. Illegal
recruitment when committed by a syndicate or in large scale
shall be considered as offense involving economic sabotage.
Illegal recruitment is deemed committed by a
syndicate carried out by a group of three (3) or more persons
conspiring or confederating with one another. It is deemed
committed in large scale if committed against three (3) or
more persons individually or as a group.
The persons criminally liable for the above
offenses are the principals, accomplices, and accessories. In
case of juridical persons, the officers having control,
management or direction of their business shall be liable.
(Emphasis and underscoring supplied)
In the present case, evidence for the prosecution
showed that Loran
International Overseas Recruitment Co., Ltd. is a
duly licensed recruitment agency with authority to establish a
branch office. However, under R.A. No. 8042, even a
licensee or holder of authority can be held liable for illegal
recruitment, should he commit or omit to do any of the acts
enumerated in Section 6.
Appellant was charged with illegal recruitment in
large scale under Section 6 (l) and (m) of R.A. No. 8042.
Section 6 (l) refers to the failure to actually deploy without
valid reason, as determined by the Department of Labor and
Employment (DOLE). Section 6 (m) involves the failure to
reimburse expenses incurred by the worker in connection
with his documentation and processing for purposes of
deployment, in cases in which the deployment does not
actually take place without the worker’s fault.
A thorough scrutiny of the prosecution's evidence
reveals that it failed to prove appellant's liability under
Section 6 (l) of R.A. No. 8042. The law requires not only that
the failure to deploy be without valid reason “as determined
by the Department of Labor and Employment.” The law
envisions that there be independent evidence from the
DOLE to establish the reason for non-deployment, such as
the absence of a proper job order. No document from the
DOLE was presented in the present case to establish the
reason for the accused's failure to actually deploy private
complainants. Thus, appellant cannot be held liable under
Section 6 (l) of R.A. No. 8042.
As to Section 6 (m) of R.A. No. 8042, the
prosecution has proven beyond reasonable doubt that
private complainants made payments to Loran, and
appellant failed to reimburse the amounts paid by private
complainants when they were not deployed. The prosecution
presented the receipts issued by Loran to private
complainants evidencing payment of placement fees ranging
from P27,000.00 to P35,000.00.
Appellant does not dispute that private
complainants were not deployed for overseas work, and that
the placement fees they paid were not returned to them
despite demand. However, he seeks to exculpate himself on
the ground that he is a mere employee of Loran.
The Court is unswayed by appellant's contention.
The penultimate paragraph of Section 6 of R.A.
No. 8042 explicitly states that those criminally liable are the
“principals, accomplices, and accessories. In case of juridical
persons, the officers having control, management or
direction of their business shall be liable.” Contrary to
appellant's claim, the testimonies of the complaining
witnesses and the documentary evidence for the prosecution
clearly established that he was not a mere employee of
Loran, but its Operations Manager. The license of Loran,
the files of the POEA and the nameplate prominently
displayed on his office desk reflected his position as
Operations Manager. As such, he received private
complainants' job applications; and interviewed and informed
them of the agency’s requirements prior to their deployment,
such as NBI clearance, police clearance, medical certificate,
previous employment certificate and the payment of
placement fee. He was also responsible for the radio
advertisements and leaflets, which enticed complaining
witnesses to apply for employment with the agency. Clearly,
as Operations Manager, he was in the forefront of the
recruitment activities.
The defense of being a mere employee is not a
shield against his conviction for large scale illegal
recruitment. In People v. Gasacao[18] and People v.
Sagayaga,[19] the Court reiterated the ruling in People v.
Cabais,[20] People v. Chowdury[21] and People v.
Corpuz[22] that an employee of a company or corporation
engaged in illegal recruitment may be held liable as principal
by direct participation, together with its employer, if it is
shown that he actively and consciously participated in the
recruitment process.
In the present case, it was clearly established that
appellant dealt directly with the private complainants. He
interviewed and informed them of the documentary
requirements and placement fee. He promised deployment
within a three or four month-period upon payment of the fee,
but failed to deploy them and to reimburse, upon demand,
the placement fees paid.
The Court is not persuaded by appellant's
argument that his non-flight is indicative of his innocence.
Unlike the flight of an accused, which is competent evidence
against him tending to establish his guilt, non-flight is simply
inaction, which may be due to several factors. It may not be
construed as an indication of innocence.[23]
Of marked relevance is the absence of any
showing that the private complainants had any ill motive
against appellant other than to bring him to the bar of justice
to answer for the crime of illegal recruitment. Besides, for
strangers to conspire and accuse another stranger of a most
serious crime just to mollify their hurt feelings would certainly
be against human nature and experience.[24] Where there
is nothing to show that the witnesses for the prosecution
were actuated by improper motive, their positive and
categorical declarations on the witness stand under the
solemnity of an oath deserve full faith and credence.[25]
It is a settled rule that factual findings of the trial
courts, including their assessment of the witnesses’
credibility, are entitled to great weight and respect by the
Supreme Court, particularly when the CA affirmed such
findings.[26] After all, the trial court is in the best position to
determine the value and weight of the testimonies of
witnesses.[27] The absence of any showing that the trial
court plainly overlooked certain facts of substance and value
that, if considered, might affect the result of the case, or that
its assessment was arbitrary, impels the Court to defer to the
trial court’s determination according credibility to the
prosecution evidence.
Under the last paragraph of Section 6 of R.A. No.
8042, illegal recruitment shall be considered an offense
involving economic sabotage if committed in large scale, viz,
committed against three or more persons individually or as a
group. In the present case, five complainants testified
against appellant’s acts of illegal recruitment, thereby
rendering his acts tantamount to economic sabotage. Under
Section 7 (b) of R.A. No. 8042, the penalty of life
imprisonment and a fine of not less than P500,000.00 nor
more than P1,000.000.00 shall be imposed if illegal
recruitment constitutes economic sabotage.
Thus, the RTC and the CA correctly found
appellant guilty beyond reasonable doubt of large scale
illegal recruitment.
WHEREFORE, the appeal is DISMISSED. The
Decision dated August 31, 2995 of the Court of Appeals
affirming the conviction of appellant Antonio Nogra for large
scale illegal recruitment under Sections 6 (m) and 7 (b) of
Republic Act No. 8042 is AFFIRMED.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
versus LOURDES LO, Accused. GRACE CALIMON
AND AIDA COMILA, Accused-Appellants.2009 Jan
29 1st Division G.R. No. 175229
DECISION
LEONARDO-DE CASTRO, J.:
For our consideration is an appeal from the Decision[1]
dated January 31, 2006 of the Court of Appeals (CA) in CA-
G.R. CR No. 00611. The challenged decision amended the
May 21, 2001 Decision[2] of the Regional Trial Court,
Manila, Branch 35 (RTC), in Criminal Case No. 00-179745
for illegal recruitment in large scale under Section 6 of
Republic Act No. 8042, and in Criminal Case Nos. 00-
180519, 00-180520 and 00-180521, all for the crime of
estafa under paragraph 2(a), Article 315 of the Revised
Penal Code.
On April 27, 1999, three separate complaint-affidavits were
filed with the Philippine Overseas Employment
Administration (POEA) charging Lourdes Lo (Lo) and
accused-appellants Grace Calimon (Calimon) and Aida
Comila (Comila) with illegal recruitment and estafa. The
complaints were initiated by Fe Magnaye,[3] Lucila
Agramon,[4] and Daisy Devanadera.[5] On May 6, 1999, the
POEA, referred the matter to the Department of Justice
(DOJ) and submitted evidence before it.[6]
After several months, accused-appellants were apprehended
for their involvement in other cases of illegal recruitment and
estafa. Private complainants Magnaye, Agramon and
Devanadera were summoned to a preliminary investigation
at the DOJ.
On October 8, 1999, the DOJ issued a Resolution[7]
recommending the filing of the corresponding Information
against Lo and the accused-appellants. Accordingly, on
December 28, 1999, an Information[8] was filed with the
RTC, charging Lo and accused-appellants with illegal
recruitment in large scale defined and penalized under
Sections 6 and 7, respectively, of Republic Act No. 8042,[9]
docketed as Criminal Case No. 00-179745. The relevant
portion of the Information follows:
Criminal Case No. 00179745:
That on or about September 1998, and thereafter in Manila,
and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully,
unlawfully and feloniously recruit the herein complainants,
FE MAGNAYE, LUCILA AGRAMON and DAISY
DEVANADERA to Italy as factory workers for the
consideration thereof, they were required to pay placement
fees, the complainants delivered and paid the total amount
(P110,000.00) Philippine Currency for the consideration
thereof, without accused having secured the necessary
license and authority from the Department of Labor and
Employment to recruit and deploy workers to Italy.
CONTRARY TO LAW.
Three separate Informations[10] for estafa arising from the
same acts penalized under paragraph 2(a), Article 315 of the
Revised Penal Code were also filed against the three,
docketed as Criminal Case Nos. 00-180519, 00-180520, and
00-180521, thus:
Criminal Case No. 00-180519:
That on or about October 1998, and thereafter in Manila,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and
confederating with each other, did then and there willfully,
unlawfully and feloniously recruit and promise employment
to FE MAGNAYE in Italy as factory worker for a total
consideration of fifty five thousand pesos (P55,000.00) as
placement and processing fees, knowing that they have no
capacity whatsoever and with no intention to fulfill their
promise, but merely as a pretext, scheme or excuse to get or
exact money from the said complainant as they in fact
collected and received the amount of P55,000.00 from said
FE MAGNAYE to her damage, loss and prejudice for the
aforesaid amount.
CONTRARY TO LAW.
Criminal Case No. 00-180520:
That on or about September 1998, and thereafter in Manila,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and
confederating with each other, did then and there willfully,
unlawfully and feloniously recruit and promise employment
to LUCILA C. AGRAMON in Italy as factory worker for a total
consideration of twenty seven thousand and five hundred
pesos (P27,500.00) as placement and processing fees,
knowing that they have no capacity whatsoever and with no
intention to fulfill their promise, but merely as a pretext,
scheme or excuse to get or exact money from the said
complainant as they in fact collected and received the
amount of P27,500.00 from said LUCILA C. AGRAMON to
her damage, loss and prejudice for the aforesaid amount.
CONTRARY TO LAW.
Criminal Case No. 00-180521:
That on or about September 1998, and thereafter in Manila,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and
confederating with each other, did then and there willfully,
unlawfully and feloniously recruit and promise employment
to DAISY DEVANADERA alias ‘Renata P. Luciano’ in Italy
as factory worker for a total consideration of twenty seven
thousand five hundred pesos (P27,500.00) as placement
and processing fees, knowing that they have no capacity
whatsoever and with no intention to fulfill their promise, but
merely as a pretext, scheme or excuse to get or exact
money from the said complainant as they in fact collected
and received the amount of P27,500.00 from said DAISY
DEVANADERA alias ‘Renata P Luciano’ to her damage, loss
and prejudice for the aforesaid amount.
CONTRARY TO LAW.
Upon arraignment, herein accused-appellants pleaded “not
guilty” to the crimes charged. Accused Lo, however, has not
yet been apprehended and has remained at large. Trial on
the merits ensued thereafter.
The prosecution presented as witnesses the three private
complainants, as well as Corazon Cristobal,[11] an
employee of the POEA, and PO2 Edward Catalan.[12] A
summary of facts, culled from their collective testimonies,
follows:
Sometime in 1998, Lo persuaded private complainants to
apply for a job in Italy through the services of accused-
appellants.[13] Lo introduced them to accused-appellant
Calimon who represented herself as a sub-agent of Axil
International Services and Consultancy (AISC), a legitimate
recruitment agency.[14] Calimon showed a job order of
factory workers purportedly issued by an Italian firm.[15]
Devanadera called up AISC to verify Calimon’s
representation. The person who answered the phone readily
confirmed accused-appellant Calimon’s claim.[16]
Thus, when accused Calimon asked P10,000.00 from each
of the private complainants to cover expenses for medical
examination and processing fees for travel documents, both
Devanadera and Agramon readily parted with their money,
as evidenced by receipts[17] duly signed by Calimon.[18]
They likewise gave their respective passports, birth
certificates, NBI clearances, resumes and other documents.
[19] Thereafter, Calimon brought them to St. Martin’s Clinic
for medical examination.[20]
On October 24, 1998, upon the urging of Lo, private
complainant Magnaye paid P20,000.00 to Calimon for the
latter’s recruitment services.[21]
On January 15, 1999, private complainants were subjected
to another medical examination at St. Camillus Clinic, Pasig
City, because according to Calimon the medical
examinations at St. Martin’s Clinic were not honored by the
Italian Embassy. On the same date, Magnaye gave an
additional amount of P15,000.00[22] to Calimon. While
Devanadera and Agramon gave her an additional amount of
P7,500.00[23] each.
At one time, in the course of following up the status of her
overseas employment application, Calimon introduced
complainant Devanadera to accused-appellant Comila who
showed her file and informed her of the need to secure a
visa with the Italian Embassy. Calimon then asked for more
money to secure the visa, but Devanadera refused to pay.
[24]
Private complainant Agramon’s follow ups with Calimon
were just met by repeated assurance that she will be
deployed immediately once her papers are completely
processed.[25] The other complainants received similar
treatment.
Finally, in January 1999, Calimon gave private complainants
their supposed individual employment contracts as factory
workers in Italy. However, the contracts did not indicate an
employer.[26] The three proceeded to the POEA to verify
the status of their contract where they discovered that while
AISC was a licensed recruitment agency, Lo and accused-
appellants Calimon and Comila were not among its
registered employees.[27]
The defense presented accused-appellants as witnesses.
Accused-appellant Calimon denied the accusations against
her. She claimed that she was also an applicant for
overseas job placement and that she never promised any
work abroad to private complainants.[28] She averred that it
was Lo who recruited her and private complainants.[29] She
likewise denied having received any money from private
complainants. She maintained that it was accused-appellant
Comila who received the money from her amounting to
P16,000.00 as payment for her placement fee.[30]
Accused-appellant Comila, on the other hand, denied having
known or seen Lo.[31] However, she maintained that it was
accused Lo who recruited and received money from private
complainants.[32] She averred she could not have recruited
private complainants because she gave birth in Baguio in
October 1998.[33]
On May 21, 2001, the RTC rendered a Decision convicting
the appellants of the crimes charged, thus:
“WHEREFORE, judgment is rendered:
A. In Criminal Case No. 00-179745, (1) pronouncing
accused GRACE CALIMON guilty beyond reasonable doubt
of illegal recruitment in large scale and sentencing said
accused to life imprisonment and to pay a fine of
P800,000.00; and (2) pronouncing accused AIDA COMILA
guilty beyond reasonable doubt of simple illegal recruitment
and sentencing said accused to imprisonment from eight (8)
to ten (10) years, and to pay a fine of P300,000.00. With
costs against the two accused in proportionate shares;
B. In Criminal Cases Nos. 00-180519 and 00-180521,
pronouncing accused GRACE CALIMON guilty beyond
reasonable doubt of two counts of estafa defined under
paragraph 2 (a) of Article 315 of the Revised Penal Code,
and (1) sentencing said accused in Criminal Case No. 00-
180519 to the indeterminate penalty of four (4) years and
two (2) months of prision correccional, as minimum, to nine
(9) years of prision mayor as maximum; and (2) sentencing
said accused in Criminal Case No. 00-180521, to the
indeterminate penalty of four (4) years and two (2) months of
prision correccional, as minimum, to six (6) years, eight (8)
months and twenty (20) days of prision mayor, as maximum;
and to pay the costs for each case.
C. In Criminal Case No. 00-180520, pronouncing accused
GRACE CALIMON and AIDA COMILA guilty beyond
reasonable doubt of estafa defined under paragraph 2 (a)
Article 315 of the Revised Penal Code, and sentencing each
of the said accused to the indeterminate penalty of six (6)
months of arresto mayor, as minimum, to two (2) years,
eleven (11) months and ten (10) days of prision correccional,
as maximum, and to pay the costs in equal shares.
In the service of her (accused Aida Comila) sentence in
Criminal Case No. 00-179745, and the respective sentences
of both accused in Criminal Cases Nos. 00-180519, 00-
180520 and 00-180521, inclusive, the period during which
they have been under preventive imprisonment should be
credited in their favor provided that they agreed voluntarily in
writing to abide by the same disciplinary rules imposed upon
convicted prisoners, otherwise, they should be credited with
four-fifths only of the time they have been under preventive
imprisonment.
In Criminal Cases Nos. 00-179745, 00-180519 and 00-
180521, accused Grace Calimon is ordered to pay to
complainants Fe Magnaye and Daisy Devanadera the sums
of P35,000.00 and P17,500.00, respectively, as reparations
for the damages she caused them.
In Criminal Cases Nos. 00-179745 and 00-180520, accused
Grace Calimon and accused Aida Comila are ordered, jointly
and severally, to pay offended party Lucila C. Agramon the
sum of P10,000.00, as reparation for the damages she
caused her.
SO ORDERED.”
On appeal, the CA affirmed the Decision of the RTC but with
modifications. The CA’s reasoning for the modification and
the dispositive portion of the CA Decision follow:
Summing up, in Criminal Case No. 00-179745, the RTC
correctly convicted Calimon of Illegal Recruitment in Large
Scale, which is punishable by the maximum penalty of life
imprisonment and a fine of One Million Pesos
(P1,000,000.00) when the offender is a non-licensee or non-
holder of authority to recruit and deploy workers abroad, as
in the instant case (Sec. 7, Republic Act No. 8042). Hence,
the penalty imposed by the RTC must be modified to life
imprisonment and a fine of One Million Pesos
(P1,000,000.00).
Comila was likewise correctly convicted by the RTC of the
crime of simple Illegal Recruitment. The sentence
pronounced by the RTC, was proper.
In Criminal Case No. 00-180519, Grace Calimon was
properly found guilty of Estafa through false pretenses.
Since the amount defrauded from Fe Magnaye was
P35,000.00, the penalty imposed by the RTC was proper.
In Criminal Case No. 00-180520, since the amount
defrauded from Lucila Agramon is P17,500.00, the correct
penalty that should be imposed upon Calimon and Comila, in
the absence of any modifying circumstances, should be the
indeterminate penalty of four (4) years and two (2) months of
prision correccional, as minimum, to six (6) years, eight (8)
months and twenty (20) days of prision mayor, as maximum.
In Criminal Case No. 00-180521, the amount involved is
P17,500.00. There being no modifying circumstances, the
penalty imposed by the trial court on Calimon is correct.
However, it has been duly proven that Comila was a
conspirator to the crime subject of this case. In view of her
acquittal by the RTC, this matter can no longer be
questioned in this appeal on the ground of double jeopardy.
However, Comila should be made solidarily liable with
Calimon to indemnify P17,500.00 to Daisy Devanadera,
since Comila’s acquittal on the ground of reasonable doubt
did not declare whether the facts from which the civil liability
might arise did not exist (Last paragraph, Section 2, Rule
120, Rules of Court).
WHEREFORE, premises considered, the May 21, 2001
Decision of the Regional Trial Court (RTC) of Manila, Branch
35, in Criminal Cases Nos. 00-179745; 00-180519; 00-
180520; and 00-180521, is hereby AMENDED to read as
follows:
WHEREFORE, judgment is rendered:
A. In Criminal Case No. 00-179745, (1) pronouncing
accused GRACE CALIMON guilty beyond reasonable doubt
of illegal recruitment in large scale and sentencing said
accused to life imprisonment and to pay a fine of
P1,000,000.00; and (2) pronouncing accused AIDA COMILA
guilty beyond reasonable doubt of simple illegal recruitment
and sentencing said accused to imprisonment from eight (8)
to ten (10) years, and to pay a fine of P300,000.00. With
costs against the two accused in proportionate shares;
B. In Criminal Cases Nos. 00-180519 and 00-180521,
pronouncing accused GRACE CALIMON guilty beyond
reasonable doubt of two counts of estafa defined under
paragraph 2 (a) of Article 315 of the Revised Penal Code,
and (1) sentencing said accused in Criminal Case No. 00-
180519 to the indeterminate penalty of four (4) years and
two (2) months of prision correccional, as minimum, to nine
(9) years of prision mayor as maximum; and (2) sentencing
said accused in Criminal Case No. 00-180521, to the
indeterminate penalty of four (4) years and two (2) months of
prision correccional, as minimum, to six (6) years, eight (8)
months and twenty (20) days of prision mayor, as maximum;
and to pay the costs for each case.
C. In Criminal Case No. 00-180520, pronouncing accused
GRACE CALIMON and AIDA COMILA guilty beyond
reasonable doubt of estafa defined under paragraph 2 (a)
Article 315 of the Revised Penal Code, and sentencing each
of the said accused to the indeterminate penalty of four (4)
years and two (2) months of prision correccional, as
minimum, to six (6) years, eight (8) months and Twenty (20)
days of prision mayor, as maximum, and to pay the costs in
equal shares.
In the service of her (accused Aida Comila) sentence in
Criminal Case No. 00-179745, and the respective sentences
of both accused in Criminal Cases Nos. 00-180519, 00-
180520 and 00-180521, inclusive, the period during which
they have been under preventive imprisonment should be
credited in their favor provided that they agreed voluntarily in
writing to abide by the same disciplinary rules imposed upon
convicted prisoners, otherwise, they should be credited with
four-fifths only of the time they have been under preventive
imprisonment.
In Criminal Cases Nos. 00-179745 and 00-180519, accused
Grace Calimon is ordered to pay to complainant Fe
Magnaye the sum of P35,000.00, as reparations for the
damages she caused her.
In Criminal Cases Nos. 00-179745 and 00-180521, accused
Grace Calimon is ordered to pay jointly and severally with
Aida Comila to complainant Daisy Devanadera the sum of
P17,500.00, as reparation for the damages she caused her.
In Criminal Cases Nos. 00-179745 and 00-180520, accused
Grace Calimon and accused Aida Comila are ordered, jointly
and severally, to pay offended party Lucila C. Agramon the
sum of P10,000.00, as reparation for the damages they
caused her.
SO ORDERED.”
Hence, the present appeal based on the following lone
assignment of error:
THE TRIAL COURT ERRED IN CONVICTING THE
ACCUSED-APPELLANT GRACE CALIMON FOR ILLEGAL
RECRUITMENT IN LARGE SCALE AND THREE (3)
COUNTS OF ESTAFA AND AIDA COMILA FOR SIMPLE
ILLEGAL RECRUITMENT AND ONE (1) COUNT OF
ESTAFA DESPITE THE FAILURE OF THE PROSECUTION
TO PROVE THEIR GUILT BEYOND REASONABLE
DOUBT.
In their brief[34], accused-appellants contend that the
prosecution witnesses established that only Lo recruited
private complainants and promised to deploy them abroad.
They deny having collected placement fees, but ironically
admitted that the amount collected was for medical
examination, visa and passport fees. Further, they insist that
they are not guilty of estafa through false pretenses because
they did not commit any act of deceit as it was only accused
Lo who promised to deploy private complainants to Italy for a
fee.
The people, through the Office of the Solicitor General
(OSG), maintains that accused-appellant Calimon committed
the crime of illegal recruitment in large scale while accused-
appellant Comila committed the crime of simple illegal
recruitment. By her conduct, Calimon successfully gave
private complainants the impression that she had the ability
to send workers abroad although she did not in fact have the
authority to do so. She was also able to induce private
complainants to tender payment for fees. Since there were
three (3) workers involved in the transaction, she committed
the crime of illegal recruitment in large scale. As to Comila,
the OSG argues that there is clear and convincing evidence
that she conspired with Calimon. The OSG, however, points
out that conspiracy was not alleged in the Information.
Hence, Comila can only be convicted for simple illegal
recruitment, not for illegal recruitment in large scale in
conspiracy with Calimon. [35]
Additionally, the OSG submits that accused-appellant
Calimon committed two counts of estafa through false
pretenses while accused-appellant Comila committed one
count of estafa through false pretenses. Accused-
appellants’ acts of deliberately misrepresenting themselves
to private complainants as having the necessary authority or
license to recruit applicants for overseas employment, and
collecting money from them allegedly for processing fees
and travel documents, but failing to deploy them and to
return the money they had collected despite several
demands clearly amount to estafa.
After a thorough review of the records, we hold that the
present appeal is plainly unmeritorious.
The pertinent provisions of Republic Act No. 8042 state:
SEC. 6. Definition. – For purposes of this Act, illegal
recruitment shall mean any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, or procuring
workers and includes referring, contract services, promising
or advertising for employment abroad, whether for profit or
not, when undertaken by a non-licensee or non-holder of
authority contemplated under Article 13(f) of Presidential
Decree No. 442, as amended, otherwise known as the Labor
Code of the Philippines: Provided, that any such non-
licensee or non-holder who, in any manner, offers or
promises for a fee employment abroad to two or more
persons shall be deemed so engaged. x x x
Illegal recruitment is deemed committed by a syndicate if
carried out by a group of three (3) or more persons
conspiring or confederating with one another. It is deemed
committed in large scale if committed against three (3) or
more persons individually or as a group. x x x
Sec. 7. Penalties. –
(a) Any person found guilty of illegal recruitment shall suffer
the penalty of imprisonment of not less than six (6) years
and one (1) day but not more than twelve (12) years and a
fine of not less than Two hundred thousand pesos
(P200,000.00) nor more than Five hundred thousand pesos
(P500,000.00).
(b) The penalty of life imprisonment and a fine of not less
than Five hundred thousand pesos (P500,000.00) nor more
than One million pesos (P1,000,000.00) shall be imposed if
illegal recruitment constitutes economic sabotage as defined
herein.
Provided, however, That the maximum penalty shall be
imposed if the person illegally recruited is less than eighteen
(18) years of age or committed by a non-licensee or non-
holder of authority.
In a litany of cases,[36] we held that to constitute illegal
recruitment in large scale three (3) elements must concur:
(a) the offender has no valid license or authority required by
law to enable him to lawfully engage in recruitment and
placement of workers; (b) the offender undertakes any of the
activities within the meaning of "recruitment and placement"
under Art. 13, par. (b), of the Labor Code, or any of the
prohibited practices enumerated under Art. 34 of the same
Code (now Sec. 6, RA 8042); and, (c) the offender
committed the same against three (3) or more persons,
individually or as a group.
Corollarily, Article 13, paragraph (b) of the Labor Code
enumerates the acts which constitute recruitment and
placement:
(b) ‘Recruitment and placement’ refer to 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.
Here, we are convinced that the three elements were
sufficiently proved beyond reasonable doubt.
First, accused-appellants, undoubtedly, did not have any
license to recruit persons for overseas work. This is
substantiated by the POEA, Licensing Branch which issued
a Certification[37] to this effect and the testimony of an
employee of the POEA, Corazon Cristobal.[38]
Second, accused-appellants engaged in illegal recruitment
activities, offering overseas employment for a fee. This is
supported by the testimonies of the private complainants,
particularly Devanadera[39] who categorically testified that
accused-appellants promised private complainants
employment and assured them of placement overseas.
Magnaye and Agramon also corroborated the testimony of
Devanadera.[40] Their narration undoubtedly established
that accused-appellants promised them employment in Italy
as factory workers and they (accused-appellants) asked
money from them (private complainants) to allegedly
process their papers and visas. Private complainants were
deceived as they relied on accused-appellants’
misrepresentation and scheme that caused them to entrust
their money to them in exchange of what they later
discovered was a vain hope of obtaining employment
abroad.
Accused-appellants’ mere denials, as well as their self-
serving and uncorroborated testimonies, cannot stand
against the straightforward testimonies of private
complainants who positively identified[41] them in court as
the persons who enticed them to part with their money upon
their fraudulent representations that they (accused-
appellants) would be able to secure for the former
employment abroad. In the absence of any evidence that
the prosecution witnesses were motivated by improper
motives, the trial court’s assessment of the credibility of the
witnesses shall not be interfered with by this Court.[42]
Third, accused-appellant Calimon committed illegal
recruitment activities involving at least three persons, i.e.,
the three private complainants herein. On the part of Comila,
this third element was not proved and thus, she was properly
convicted of simple illegal recruitment only.
This Court is likewise convinced that the prosecution proved
beyond reasonable doubt that accused-appellants are guilty
of estafa under Article 315(2)(a) of the Revised Penal Code:
ART. 315. Swindling (estafa). ….
2. By means of any of the following false pretenses or
fraudulent acts executed prior to or simultaneously with the
commission of the fraud:
(a) By using fictitious name, or falsely pretending to possess
power, influence, qualifications, property, credit, agency,
business or imaginary transactions; or by means of other
similar deceits.
….
There are three ways of committing estafa under the above-
quoted provision: (1) by using a fictitious name; (2) by
falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or
imaginary transactions; and (3) by means of other similar
deceits. Under this class of estafa, the element of deceit is
indispensable.[43] In the present case, the deceit consists
of accused-appellants’ false statement or fraudulent
representation which was made prior to, or at least
simultaneously with, the delivery of the money by the
complainants. To convict for this type of crime, it is essential
that the false statement or fraudulent representation
constitutes the very cause or the only motive which induces
the complainant to part with the thing of value.[44]
Accused-appellants led private complainants to believe that
they possessed the power, means and legal qualifications to
provide the latter with work in Italy, when in fact they did not.
Private complainants parted with their hard-earned money
and suffered damage by reason of accused-appellants
deceitful and illegal acts. The elements of deceit and
damage for this form of estafa are indisputably present,
hence their conviction for estafa was proper.
WHEREFORE, the petition is DENIED for lack of merit and
the assailed Decision of the Court of Appeals in CA-G.R. CR
No. 00611 dated January 31, 2006 is AFFIRMED.
SO ORDERED.
PEOPLE OF THE PHILIPPINES,Plaintiff-Appellee,
versus NENITA B. HU,Accused-Appellant.2008
Oct 6 3rd Division G.R. No. 182232
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari filed by accused-
appellant Nenita B. Hu (Hu) seeking to reverse and set aside
the Decision[1] of the Court of Appeals dated 9 October
2007 in CA-G.R.-CR.-H.C. No. 02243, affirming with
modification the Decision[2] dated 4 January 2005 of the
Regional Trial Court (RTC) of Makati City, Branch 66, in
Criminal Case No. 03-356. The RTC in its Decision found Hu
guilty beyond reasonable doubt of the crime of illegal
recruitment in large scale, as defined and penalized under
Section 7(b) of Republic Act No. 8042,[3] and accordingly,
sentenced her to suffer the penalty of life imprisonment, to
pay the fine of P500,000.00, and to indemnify private
complainants Paul Abril (Abril), Joel Panguelo (Panguelo)
and Evangeline Garcia (Garcia) in the amounts of
P44,000.00, P50,000 and P50,000, respectively. The
decretal part of the assailed Court of Appeals Decision
reads:
Wherefore, in the light of the foregoing disquisitions, the
decision of the Regional Trial Court of Makati City, Branch
66,in Criminal Case No. 03-856, finding appellant Nenita B.
Hu, guilty beyond reasonable doubt of the crime charged, is
hereby AFFIRMED with MODIFICATION.
As modified, the award of actual damages in the amount of
P50,000 in favor of Evangeline Garcia, is DELETED.[4]
The antecedent facts are as follows:
An Information[5] for Illegal Recruitment in Large Scale was
filed against Hu and Ethel V. Genoves (Genoves) which
reads:
The undersigned Prosecutor accuses Ethel V. Genoves
a.k.a. Merry Ann Genoves and Nenita B. Hu, of the crime of
Violation of Section 6 penalized under Section 7(b) of RA
8042[6] (Illegal Recruitment in Large Scale) committed as
follows:
That on or about the 9th day of October 2001, in the City of
Makati, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and
confederating together and both of them helping and aiding
one another, did then and there willfully, unlawfully and
feloniously recruit, promise employment/job placement
abroad for an overseas employment and collect fees from
the following persons to wit:
NOEL P. DELAYUN
JOEY F. SILAO
JOEL U. PANGUELO
PAUL C. ABRIL
EVANGELINE E. GARCIA
ERIC V. ORILLANO
thus in large scale amounting to economic sabotage without
any license or authorized by the POEA of the Department of
Labor and Employment to recruit workers for an overseas
employment.
Upon arraignment, Hu assisted by counsel entered a plea of
not guilty while Genoves remained at large.[7]
Subsequently, trial on the merits ensued. While the
Information for illegal recruitment named several persons as
having been promised jobs by Hu and Genoves, only four of
them – Panguelo, Garcia, Abril and Orillano -- testified.
Hu was the President of Brighturn International Services,
Inc. (Brighturn), a land-based recruitment agency duly
licensed by the Philippine Overseas Employment Agency
(POEA) to engage in the business of recruitment and
placement of workers abroad, with principal address at No.
1916 San Marcelino St., Malate, Manila.Brighturn was
authorized by the POEA to recruit, process and deploy land-
based workers for the period 18 December 1999 to 17
December 2001.[8]
Genoves worked as a consultant and marketing officer of
Brighturn. Aside from her stint at Brighturn, Genoves was
also connected with Riverland Consultancy Service
(Riverland), another recruitment agency located at Room
No. 210, LPL Building, Sen. Gil Puyat Avenue, Makati City.
Private complainants Orillano, Panguelo, Abril and Garcia
sought employment at Brighturn for the positions of factory
worker and electronic operator in Taiwan.[9] Notwithstanding
private complainants’ compliance with all of the pre-
employment requirements, including the payment of
placement fees, they were not able to leave the country to
work abroad.
Sometime in June 2001, Panguelo was informed by a friend
that Brighturn was hiring factory workers for Taiwan. When
Panguelo went to Brighturn, he was promised employment
abroad by Hu for P50,000.00. Upon Hu’s instruction,
Panguelo paid in full the placement fee in the amount of
P50,000.00 to Genoves. The payment was evidenced by an
Official Receipt dated 16 October 2001 bearing Genoves’
signature. Panguelo waited for three years to be deployed to
Taiwan. His waiting was all for naught. Thus, Panguelo
decided to abort his application and demanded from Hu the
return of the amount he paid for the placement fee, but Hu
could no longer return the money.[10]
Also sometime in September 2001, Abril went to Brighturn to
apply as a factory worker in Taiwan. At Brighturn, Abril was
entertained by Hu who oriented him on the necessary
requirements for application which included a valid passport,
National Bureau of Investigation (NBI) Clearance and ID
pictures. After complying with the documentary
requirements, Abril was required by Hu to pay the placement
fee to Genoves in the amount of P44,000.00. As shown in
Official Receipts dated 9 October 2001 and 26 October
2000, which were signed by Genoves, Abril paid the whole
amount of P44,000.00 as placement fee. Abril was assured
by Hu that he would be deployed to Taiwan by December
2001 which was subsequently reset to April 2002. Despite
several postponements, Abril was not able to leave the
country.[11]
For his part, Orillano came to know of Brighturn thru
Genoves. Orillano was interviewed at Brighturn by a
Taiwanese principal in October 2001. After the interview, Hu
informed Orillano to submit a medical certificate, NBI
clearance and passport; and to pay the requisite placement
fee in the amount of P50,000.00. Believing that Hu could
send him abroad, Orillano faithfully complied with these
requirements including the placement fee, the payment of
which was made to Genoves at Brighturn’s office. Despite
such payment, however, Orillano was not able to leave the
country.[12]
Garcia suffered the same fate as her co-applicants. In April
2002, Garcia applied as Electronic Operator at Brighturn
wherein she was entertained by Hu who informed her that
Brighturn’s license was suspended. Garcia was then
referred by Hu to Best One International (Best One), another
recruitment agency likewise located in Malate, Manila. While
Garcia was told by Hu that the processing of her documents
would be done at Best One, the placement fee, however,
should be paid at Brighturn. Accordingly, the amount of
P60,000.00 was paid by Garcia to Hu and Genoves as
placement fee upon Hu’s instruction. Almost predictably, the
promise of an employment abroad never came to pass.[13]
When Hu was not able to refund the amounts paid as
placement fees upon demand, private complainants went to
NBI to file a complaint for illegal recruitment against Hu and
Genoves.
For her defense, Hu claimed that she was the President of
Brighturn, a duly authorized land-based recruitment agency.
Brighturn had foreign principals in Taiwan who were looking
for skilled individuals willing to work in a foreign country. Hu
alleged that Brighturn had an established recruitment
procedure wherein applicants were only required to pay the
corresponding placement fees after the POEA had already
approved their employment contracts. According to Hu,
announcements were posted all over Brighturn’s premises
warning job applicants to pay placement fees only to the
cashier. After the expiration of its license issued by the
POEA on 18 December 1999, Brighturn failed to pursue its
application for renewal due its inability to post the required
cash bond. Brighturn was thus constrained to refer all
pending applications to Best One. [14]
Hu admitted knowing the private complainants because
these individuals went to her office demanding the return of
their placement fees by showing their official receipts. Hu
averred that when she examined such receipts, she found
that private complainants paid their placement fees to
Riverland and not to Brighturn as shown in the heading of
the said receipts which bore the name and address of
Riverland and its proprietress, Genoves. Hu denied knowing
Genoves.[15]
On 4 January 2005, the trial court rendered a Decision[16]
finding Hu guilty beyond reasonable doubt of the crime of
illegal recruitment in large scale, the dispositive portion of
which reads:
WHEREFORE, the Court finds the accused Nenita Hu guilty
beyond reasonable doubt of the crime of illegal recruitment
in large scale under Section 6 and 7(b) of Republic Act No.
8042, and, accordingly, sentences the accused to suffer the
penalty of life imprisonment, pay the fine of P500,000.00 and
to indemnify private complainants Paul Abril in the amount of
P44,000.00, Joel Panguelo in the amount of P50,000.00 and
Evangeline Garcia in the amount of P50,000.00.
The Court of Appeals, in its Decision[17] dated 9 October
2007, confirmed the presence of all the elements of illegal
recruitment in large scale, and thereby affirmed the
conviction of Hu with the modification that the amount of
actual damages awarded to Garcia in the amount of
P50,000.00 be deleted.
Hence, this Petition raising the sole issue of:
WHETHER OR NOT THE LOWER COURT ERRED IN
FINDING HU GUILTY BEYOND REASONABLE DOUBT OF
ILLEGAL RECRUITMENT IN LARGE SCALE.
Conviction was affirmed by the Court of Appeals. The
appellate court found that Hu made enticing, albeit empty
promises, which moved private complainants to part with
their money and pay the placement fee.
For its part, the Solicitor General joined the lower courts in
finding that Hu was indeed guilty of Illegal Recruitment in
Large Scale. According to the Solicitor General, all the
elements of illegal recruitment in large scale had been
established beyond reasonable doubt.[18]
We cannot sustain the conviction for illegal recruitment in
large scale.
Illegal recruitment is committed when two elements concur,
namely: (1) the offender has no valid license orauthority
required by law to enable him to lawfully engage in the
recruitment and placement of workers; and (2) he
undertakes any activity within the meaning of “recruitment
and placement” defined under Article 13(b) of the Labor
Code.[19] Recruitment and placement is “any act of
canvassing, enlisting, contracting, transporting, utilizing,
hiring or procuring workers; and includes referrals, contact
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.”[20]
The crime becomes Illegal Recruitment in Large Scale when
the foregoing two elements concur, with the addition of a
third element – the recruiter committed the same against
three or more persons, individually or as group.[21]
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. While it is
true that the law does not require that at least three victims
testify at the trial, nevertheless, it is necessary that there is
sufficient evidence proving that the offense was committed
against three or more persons.[22]
In the appreciation of evidence in criminal cases, it is a basic
tenet that the prosecution has the burden of proof in
establishing the guilt of the accused for the offense with
which he is charged. Ei incumbit probation qui dicit non qui
negat; i.e., “he who asserts, not he who denies, must prove.”
The conviction of appellant must rest not on the weakness of
his defense, but on the strength of the prosecution’s
evidence.[23]
In the case at bar, the prosecution failed to adduce sufficient
evidence to prove that illegal recruitment was committed
against three or more persons. What we have uncovered
upon careful scrutiny of the records was the fact that illegal
recruitment was committed against only one person; that is,
against Garcia alone. Illegal recruitment cannot successfully
attach to the allegations of Panguelo, Abril and Orillano,
since they testified that they accomplished their pre-
employment requirements through Brighturn from June 2001
up to October of the same year,[24] a period wherein
Brighturn’s license to engage in recruitment and placement
was still in full force and effect. [25]
While there were six private complainants in this case, four
of whom were presented during the trial, the prosecution,
nonetheless, failed to establish that Hu engaged in illegal
recruitment acts against at least three of these complainants.
In offenses in which the number of victims is essential, such
as in the present petition, failure of the prosecution to prove
by convincing evidence that the offense is committed against
the minimum number of persons required by law is fatal to its
cause of action. Underscoring the significance of the
number of victims was the disquisition of Justice Florenz
Regalado in People v. Ortiz-Miyake[26]:
It is evident that in illegal recruitment cases,the number of
persons victimized is determinative. Where illegal
recruitment is committed against a lone victim, the accused
may be convicted of simple illegal recruitment which is
punishable with a lower penalty under Article 39(c)[27] of the
Labor Code. Corollarily, where the offense is committed
against three or more persons, it is qualified to illegal
recruitment in large scale which provides a higher penalty
under Article 39(a)[28] of the same Code. ( emphasis
supplied.)
Regrettably, we cannot affirm the conviction of Hu for the
offense of illegal recruitment in large scale. While we
strongly condemn the pervasive proliferation of illegal job
recruiters and syndicates preying on innocent people
anxious to obtain employment abroad, nevertheless, we find
the pieces of evidence insufficient to prove the guilt of Hu
beyond reasonable doubt. It is unfortunate that the
prosecution evidence did not pass the test of reasonable
doubt, since the testimonies of its witnesses unveil a
contradicting inference -- that the recruitment of Panguelo,
Abril and Orillano was undertaken by Hu with the required
authority from the POEA.
Failure of the prosecution to prove the guilt of Hu beyond
reasonable doubt does not absolve her of her civil obligation
to return the money she collected from private complaints
Panguelo, Abril and Orillano, plus legal interest in
accordance with our ruling in Domagsang v. Court of
Appeals.[29] There, the prosecution failed to sufficiently
establish a case to warrant a conviction, but clearly proved a
just debt owed to the private complainant. Thus, the
accused was ordered to pay the face value of the check with
12% legal interest per annum, reckoned from the filing of the
information until the finality of the judgment. It is well settled
that acquittal based on reasonable doubt does not preclude
an award for civil damages. The judgment of acquittal
extinguishes the liability of the accused only when it includes
a declaration that the facts from which the civil liability might
arise did not exist. Thus, civil liability is not extinguished
where the acquittal is based on lack of proof beyond
reasonable doubt, since only preponderance of evidence is
required in civil cases. There appears to be no sound
reason to require that a separate action be still filed
considering that the facts to be proved in the civil case have
already been established in the criminal proceedings.[30] In
the present case, the prosecution explicitly proved that
private complainants parted with substantial amounts of
money upon the prodding and enticement of Hu on the false
pretense that she had the capacity to deploy them for
employment abroad. In the end, private complainants were
not able to leave for work abroad or get their money back.
Neither does her acquittal herein exempt Hu from
subsequent criminal prosecution for estafa[31] provided that
deceit, which is an essential element of estafa, be proven by
the prosecution.[32] Apparently, Hu deluded private
complainants into believing that she had the capacity to send
them abroad for employment. Through this hoax, she was
able to convince private complainants to surrender their
money to her in the vain hope, as it turned out, of securing
employment abroad.
This leaves us a case of simple illegal recruitment committed
against Garcia.
Garcia testified that she applied for employment in Taiwan
for the position of Electronic Operator thru Brighturn in April
2002. Due to the alleged suspension of Brighturn’s license,
Hu referred her to a neighboring agency (Best One), but Hu
continued collecting placement fees from her.
The act of referral, which means the act of passing along or
forwarding an applicant after an initial interview to a selected
employer, placement or bureau, is included in recruitment.
[33] Undoubtedly, the act of Hu in referring Garcia to
another recruitment agency squarely fell within the purview
of recruitment that was undertaken by Hu after her authority
to recruit and place workers already expired on 17
December 2001.
Failure of Garcia to present proof of payment is irrelevant.
The absence of receipts in the case of illegal recruitment
does not warrant the acquittal of the appellant and is not
fatal to the prosecution’s case. As long as the prosecution is
able to establish through credible and testimonial evidence,
as in the case at bar, that the appellant had engaged in
illegal recruitment, a conviction for the offense can be very
well justified.[34]
Irrefragably, the prosecution has proven beyond reasonable
doubt the guilt of Hu of the charge of illegal recruitment
against Garcia when the former referred the latter to another
agency without the license or authority to do so. The trial
court gave full credence to the testimony of Garcia, which
unmistakably demonstrated how Hu successfully enticed her
to part with a considerable amount of money in exchange for
an employment abroad which was never realized. This
finding was adopted by the appellate court, considering that
that the trial court was in the best position to ascertain
credibility issues, having heard the witnesses themselves
and observed their deportment and manner of testifying
during trial.
Aptly, the bare denials of Hu have no probative value when
ranged against the affirmative declarations of Garcia, even if
the latter failed to present receipts for the payments she had
made. In People v. Villas,[35] this Court affirmed Neither is
there merit in the contention of the defense that appellant
should be exonerated for failure of the prosecution to
present any receipt proving that private complainants paid
her anything. The defense argues that a receipt is the best
evidence to prove delivery of money and the absence
thereof shows that no payment was made.
This argument is not novel. The Court has previously ruled
that the absence of receipts evidencing payment does not
defeat a criminal prosecution for illegal recruitment. In
People vs. Pabalan [262 SCRA 574, 30 September 1996],
this Court ruled:
“x x x the absence of receipts in a criminal case for illegal
recruitment does not warrant the acquittal of the accused
and is not fatal to the case of the prosecution. As long as
the witnesses had positively shown through their respective
testimonies that the accused is the one involved in the
prohibited recruitment, he may be convicted of the offense
despite the want of receipts.
“The Statute of Frauds and the rules of evidence do not
require the presentation of receipts in order to prove the
existence of recruitment agreement and the procurement of
fees in illegal recruitment cases. The amounts may
consequently be proved by the testimony of witnesses.”
The private complainants have convincingly testified that the
accused enticed them to apply and, in actual fact, received
payments from them. And to these testimonies, the trial
court accorded credence. On the other hand, appellant has
not shown any reason to justify a modification or reversal of
the trial court’s finding.
Our ruling in People v. Villas[36] that the absence of receipts
in illegal recruitment case does not warrant the acquittal of
the accused has been reiterated in several cases.[37] We
are not unaware of the proliferation of these scheming illegal
recruiters who cunningly rob Filipino workers, desperate to
work abroad, of their money in exchange of empty promises.
This Court cannot be drawn to the ingenious ploy of these
illegal recruiters in withholding receipts from their victims in
their vain attempt to evade liability.
In fine, the Court will have to discard the conviction for illegal
recruitment in large scale meted out by the RTC, since only
one applicant abroad was recruited by Hu without license
and authority from the POEA. Accordingly, Hu should be
held responsible for simple illegal recruitment only. Hu’s
unsuccessful indictment for illegal recruitment in large scale,
however, does not discharge her from her civil obligation to
return the placement fees paid by private complainants.
No. 02243 affirming the conviction of the accused-appellant
Nenita B. Hu for the offense of Illegal Recruitment in Large
Scale and sentencing her to life imprisonment is hereby
VACATED. A new Decision is hereby entered convicting the
accused-appellant of the offense of Simple Illegal
Recruitment committed against private complainant
Evangeline Garcia. She is sentenced to suffer the
indeterminate penalty of eight (8) years to twelve (12) years
of imprisonment. She is ordered to pay a fine in the amount
of P500,000.00 and to indemnify private complainant
Evangeline Garcia in the amount of P60,000.00, with 12%
interest per annum, reckoned from the filing of the
information until the finality of the judgment.
Accused-appellant Nenita B. Hu is likewise ordered to
indemnify private complainants Paul Abril in the amount of
P44,000.00, Joel Panguelo in the amount of P50,000.00,
and Eric Orillano in the amount of P50,000.00, with 12%
interest per annum, as reckoned above.
SO ORDERED.

Under Section 7(a) of Republic Act No. 8042,[38] simple

illegal recruitment is punishable by imprisonment of not less
than six (6) years and one (1) day but not more than twelve
years and a fine of not less than two hundred thousand
pesos (P200,000.00) nor more than five hundred thousand
pesos (P500,000.00).

Section 1 of the Indeterminate Sentence Law provides that if

the offense is punishable by a special law, as in this case,
the court shall impose on the accused an indeterminate
sentence, the maximum term of which shall not exceed the
maximum fixed by the said law and the minimum of which
shall not be less than the minimum term prescribed by the
same. Accordingly, a penalty of eight (8) to twelve (12) years
of imprisonment should be meted out to Hu. In addition, a
fine in the amount of P500,000.00; and indemnity to private
complainants -- Abril in the amount of P44,000.00, Panguelo
in the amount of P50,000.00, Garcia in the amount of
P60,000.00 and Orillano in the amount of P50,000.00, with
12% legal interest per annum, reckoned from the filing of the
information until the finality of the judgment – is imposed.

WHEREFORE, IN VIEW OF THE FOREGOING, the instant

petition is PARTIALLY GRANTED. The Decision dated 9
October 2007 of the Court of Appeals in CA-G.R.-CR.-H.C.