Labor 1 Digest - Employment Agencies

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PERT v VINUYA et al.
F: Respondents Vinuya et al. were deployed between Mar. and May 2007 to work as
aluminum fabricators/installers for petitioner PERT's principal, Modern Metal in
Dubai. Their employment contracts [approved by POEA] provided for a 2-year empl
oyment, 9 hr/day workday, 1350AED salary with overtime, food allowance, free and
suitable housing [at 4/room], free transportation/laundry/medical/dental servic
es.
However, Modern Metal gave the respondents appointment letters with terms differ
ent from the contracts at the agency's office [more years, lower salary, limited
food allowance]. Worse, the working and living conditions did not match the ini
tial contract [substandard]. The respondents then called the agency to complain
about their predicament-- though the agency reassured them of improvements, noth
ing happened.
A month later, MM required the respondents to sign new employment contracts that
reflected the terms of their appointment letters. Burdened by expenses and obli
gations, the respondents signed the contracts BUT the conditions remained the sa
me. Once again, the agency took no action upon complaint.
Months later, the respondents expressed their desire to resign-- in fear of reta
liation, they cited personal reasons EXCEPT respondent Era who was frank in ment
ioning the company policy as basis for his resignation. They were eventually rep
atriated, but in most cases, the respondents had to shoulder their own airfare.
Thus leading to a complaint for illegal dismissal.
Ans: Respondents voluntarily resigned [they tried to apply for another company i
n UAE]; quitclaim was signed. Forum shopping since it should have been filed in
the POEA.
LA: Voluntary resignation + quitclaim. Favored petitioners.
NLRC: Illegal dismissal. Contract substitution. Quitclaim rejected-- signed unde
r duress. Forum shopping-- POEA and NLRC issues were different.
NLRC MR: Adjusted award pursuant to Serrano v Gallant. Computed based on unexpir
ed portion of contract.
CA: Affirmed NLRC decision.
Args: Voluntary resignation + quitclaim -- family reasons as reason for resignat
ion. No duress. Compromise agreements made before POEA. Serrano should not be gi
ven retroactive application, and even then, the clause it declare U/C was restor
ed in a later amendment.
Resp: Constructive dismissal; affidavits were ready-made and didn't apply to all
; compromise did not affect post-deployment issues; Serrano is curative and can
be given retroactive application
I: Whether or not the respondents were illegally dismissed.
H/R: YES. Constructive dismissal.
- Constructive dismissal took place here as a result of the convergence of sever
al factors:
a. Contract substitution - fact was not denied that the contracts were c
hanged throughout the employment period. Worse, this is a prohibited practice AN
D a type of illegal recruitment under Art. 34 LC.
b. Breach of contract - the actual conditions provided were substandard
compared to what was promised in the contract. For example, by 'free and suitabl
e', even if there is no exact description, there would at least be conditions th
at a reasonable man would deem suitable [which was not the case]. Worse, the age
ncy did not act on this.
- Effect: Constructive dismissal-- a reasonable mind would not approve of a subs
tituted contract that pays a diminished salary for inferior work and living cond
itions. Family reasons were just cited out of fear that MM would not give them t
heir salaries and release papers; in fact, one of them was blunt in saying that
the real reason they resigned was to protest company policy.
- Quitclaims: Suspect. Affidavits provided to follow through the resignation. Ho
wever, the respondents had no hand in these-- they just signed affidavits prepar
ed by a representative of MM that did not even fit the situation of most of the
respondents. It is obvious that these were illegitimate, and as such were execut
ed out of duress.
- The compromise agreements were standard POEA documents that would only pertain
to refund of airfare. Worse, they were not all signed by the respondents.
I: Whether or not the application of the Serrano ruling was proper.
H/R: YES.
- Retroactivity: Yap v Theramaris >> declared/implied to be retroactive, was cur
ative
- As to the amendment: Didn't matter. There was an accrued right.
--
STOLT-NIELSEN v MEDEQUILLO
F: Nov 6 1991 (Contract #1): Medequillo was hired by Stolt-Neilsen on behalf of
its principal Chung-Gai as 3rd Asst. Engr. of the Stolt Aspiration for 9 months.
He would be paid a basic montly salary of USD808 and a fixed overtime pay of US
D404 during the employment period. Two days later, he joined the vessel, but thr
ee months later, while the vessel was at Batangas, he was ordered by the ship's
master to disembark and return to Manila for no reason or explanation.
Upon returning to Manila, he proceeded to the petitioner's office where he was t
ransferred employment to the MV Stolt Pride under the same terms and conditions
as Contract #1.
2 months later, Contract #2 was noted and approved by the POEA, but even upon ce
rtification, POEA was not aware that Medequillo was not deployed with the vessel
. He was never deployed, even on follow-up [they refused to comply with Contract
#2].
He later demanded for his employment documents, but he was required to sign a do
cument in exchange [quitclaim]. He then files this complaint for illegal dismis
sal (for Contract #1) and failure to deploy (for Contract #2).
LA: Constructive dismissal for not honoring the contract. Not liable for contrac
t 1 due to novation, but liable for contract 2. [Arg to NLRC: Not even deployed
yet]
NLRC: Merely deleted the award of overtime pay.
CA: Affirmed NLRC.
I: Whether or not the second contract novated the first contract.
H/R: NO.
- Novation is a means of extinguishing an obligation by substituting or changing
the obligation/parts of it. For a novation to be valid, there must be a previou
s valid obligation, an agreement to the new contract, extinguishment of the old
contract, and validity wrt new contract.
- There was indeed novation of the first contract when there was a re-negotiatio
n for a second contract [new vessels].
I: Whether or not non-deployment amounts to illegal dismissal.
H/R: NO. It is a breach of a perfected contract. It would only have been illegal
dismissal if employment actually commenced.
- Arg: Under the POEA contract, actual deployment commences employment.
- Court: True. However, even without actual deployment, upon agreement, the cont
ract is perfected, thus giving rise to obligations on the part of petitioners [h
ere: to provide employment].
- The POEA standard contract, which is written into any employment contract for
overseas workers, provides that employment commences upon actual departure from
the airport/seaport in the port of hire. However, there is a basis for suit for
non-deployment without valid reason [they argued poor performance, but no eviden
ce was presented for this].
- One must distinguish between the perfection of the employment contract and the
commencement of the e-er. Here, the mutual agreement perfected the contract, gi
ving rise to the rights and obligations therein. One could sue based on that per
fected contract [civil code].
- Penalty for non-deployment: 1991 POEA Rules: suspension/cancellation of licens
e OR fine. Reprimand not applicable as it was not applicable at the time.
- As for claim: RA 8042 applies.
- As for damages: apply NCC based on prospective income.
--
PEOPLE v OCDEN
F: Ocden was charged with six counts of estafa and illegal recruitment in large
scale with respect to acts committed related to the supposed recruitment of seve
ral parties as factory workers in Italy.
Prosecution Witnesses:
- Mana-a: She and Dao-as went to Ocden's house in Baguio to apply for work as fa
ctory workers in Italy. They were required to submit their biodata and passports
, pay the placement free, and to undergo medical examination. They complied. At
this point, Mana-a's testimony ends, but it was still considered valid as no mot
ion to strike down the testimony was filed.
- Ferrer: She and her daughter wanted to work overseas. They approached Ocden th
rough Fely Alipio-- Ocden showed Ferrer a copy of a job order from Italy for fac
tory workers. They decided to apply, so they submitted their documents to Ocden,
submitted themselves for medical examination, and paid the placement fees. Supp
osedly, they were to be part of the first batch of workers to be sent to Italy,
but odd delays and an intend move to Malaysia made them suspicions of Ocden. The
y tried to get their money back, but Ocden was nowhere to be found. They would l
ater learn from POEA that Ocden was not a licensed recruiter.
- Golidan: Similar case, but more issues with flights led them to not get anywhe
re. Would also learn that Ocden was not a licensed recruiter.
Defense: Ocden was also an applicant; a certain Ramos was the actual receruiter.
People wanted to inquire about the jobs, so Ocden asked Ramos to conduct a semi
nar at Ocden's house. Ocden was merely the leader of the applicants, and denied
deceiving anyone.
RTC: Guilty for illegal recruitment and three counts of estafa [Golidan and Ferr
er cases]
CA: Affirmed conviction; merely modified penalties.
I: Whether or not Ocden is guilty of illegal recruitment in large scale.
H/R: YES.
- Arg: No evidence of non-licensee/holder of authority
- Sec. 6 of RA 8042, read alongside Art. 13(b) LC, provides for a definition of
illegal recruitment that includes the acts done by Ocden, including failure to r
eimburse expenses incurred for documentation and processing if deployment does n
ot take place [as in these cases]. The acts are punishable regardless of presenc
e of license/authority.
- Further, it is committed in a large scale if committed against 3+ persons whet
her individually or as a group.
- To prove illegal recruitment, i must be shown that the appellant gave complain
ants the distinct impression that he had the power to send them abroad for work
so that the latter were convinced to part with their money in order to be employ
ed. The testimonies clearly show such acts: informing them of the job opportunit
y, telling them to go to the seminar, receiving documents and fees, assisting th
em in medical examinations, and assuring them of deployment.
- Non-license/holder: Unnecessary.
- How committed: receiving the fees and failing to reimburse them when they were
not able to leave
- SC: Golidan - no personal knowledge -> actually did. GOlidan assisted her sons
. Affidavit of desistance does not exonerate from liability when prosecution had
proved guilt beyond reasonable doubt (and at any rate, crimes are against the S
tate-- desistance will not matter)
- Appellant angle: No proof and corroboration. Denial is very weak without clear
and convincing evidence.
- With the fact of illegal recruitment proven, it must then be established that
for it to be done in the large scale, there must be sufficient evidence to prove
that the offense was committed against three or more persons. The law does not
require that all of them testify-- this counters Ocden's argument on the defecti
ve testimonies. At any rate, the testimonies clearly established the elements of
illegal recruitment, and sufficient evidence was shown in order to fully prove
the offense beyond reasonable doubt [and even then, there is still Ferrer and Go
lidan's sons].
I: Whether or not Ocden may still be guilty of estafa notwithstanding the convic
tion for illegal recruitment.
H/R: YES.
- People v Yabut enunciated that one may be guilty at the same time for both ill
egal recruitment under RA 8042 and estafa under the RPC. Basis: Essentially diff
erent crimes of different natures (e.g. malum in se v malum prohibitum).
- Elements of estafa by deceit: defrauding and damage.
- Both are present: promises to provide the jobs + fees + assurance.
--
WALLEN MARITIME v TANAWAN
F: The petitioner, as local agent of Scandic Ship Management, engaged respondent
Tanawan as dozer driver for the MV Eastern Falcon for 12 months.
One day, while Tanawan was assiting two co-workers in lifting a steel plate aboa
rd the vessel, an incident occurred-- the plate hit his left foot. He was examin
ed, and found to have suffered fracture of multiple toes.
When he was repatriated days after the incident, the company's designated physic
ian, Dr Lim, evaluated Tanawan and advised him to continue with his immoblizatio
n to allow good fracture healing. He was declared fit to work several months lat
er, and paid sickness allowances equivalent to his montly salary.
However, during the treatment period, Lim sought a second opinion with Dr. Sagui
n; his injury was classified as Grade 12. He also went to Dr Bunuan for evaluati
on for an eye injury supposedly sustained while on board the vessel-- it was cla
ssified Grade 7. He then filed a complaint for disability benefits for the injur
ies in addition to sickness allowance, damages, and attorney's fees.
Ans: Was fit to work based on Dr. Lim's certification; eye injury was not report
ed; claim for sickness allowance already paid
LA: Considered both foot and eye injuries for disabiliy benefits. Ordered paymen
t of attorney's fees.
NLRC: Args: Company-designated physician binding :: Reversed LA decision.
CA: Reinstated LA. Compensation does not refer to the injury but the incapacity
to work-- the foot injury incapacitated Tanawan from working as dozer driver. Li
m certification not probative as self-serving and biased in favor of petitioner;
eye injury considered as it took place within contract term.
I: Whether or not Tanawan can claim disability benefits for the foot injury.
- The employment of seafarers, and its incidents, are governed by the contracts
signed alongside the POEA standard contract [which is integrated in every seafar
er's contract].
- Pertinent here is Sec. 20(b) of the POEA SEC. The company-designated physician
determines if one suffers from any disability or if one is fit to work. However
, the COurt held that his assessment is not final or conclusive-- a second opini
on may be sought for, which shall also be evaluated by the Court.
- Court: The period before Dr. Lim declared Tanawan fit for work was 172 days, w
hich indicated a permanent disability-- this by itself will allow for disability
benefits. Disability under the law refers to loss of earning capacity, which nu
llifies the need for the physician to have found a disability in the medical sen
se. This is even if the patient is later found fit for work. [Saguin's findings
were just as plausible]
I: Whether or not Tanawan can claim disability benefits for the eye injury.
- Barred by failure to report the injury and to have eye examined by company-des
ignated physician. Reason: Makes it easier to determine the cause, otherwise the
re would be plenty of unrelated disability claims.
- However, it must be noted that under the SEC, it does not matter if it was wor
k-related; it covers injuries incurred during the term of the contract, provided
it was reported properly and there is sufficient evidence.
--
ABANTE v KJGS
F: Abante was hired by respondent KJGS to work as a seaman aboard the M/T Rathbo
yne for a period of 9 months. 5 months after being hired, while carrying equipme
nt onboard the vessel, Abante slipped and hurt his back. He was found to be suff
ering from lower back pain r/o old fracture lesion on the 4th lumbar body, but w
as declared fit for restricted work. Unable to bear the pain, the petitioner req
uested to be repatriated to the Philippines.
He reported to KJGS and was referred to the company-designated physician, Dr. Li
m-- he was diagnosed to be suffering from foraminal stenosis of the 3rd-14th lum
bar bodies and central disc protrusion on the 4th-5th lumbar bodies, leading to
several surginal proceedings [costs borne by KJGS]. He was pronounced fit to res
ume sea duties almost 6 months after the operation [and Dr. Lim saw him at least
ten times during this period]. Abante, however, refused to sign his Certificate
of Fitness for Work.
He then sought the opinion of another doctor, Dr. Caja, who diagnosed him to hav
e failed back syndrome with a Grade 6 disability rating. He then filed a complai
nt for disability compensation.
LA: Dismissed. Under POEA Memo Circular 9-s2000, in the event of conflict betwee
n the assessment of the CDP and the seafarer's, a third doctor is required. Othe
rwise, CDP prevails.
NLRC: Remand. Should refer to third doctor.
CA: Reinstated LA decision, based on Memo Circular 55-s1996, which was in place
at the time-- CDP controlling.
Arg: Should be entitled to Grade 6 benefits under the 2000 POEA SEC.
I: Whether or not Abante is entitled to disability benefits under the 2000 POEA
SEC.
H/R: YES.
- Though the CDP must declare the permanent disability, it does not preclude the
possibility of a second opinion [and in cases of conflict, a third doctor]. The
petitioner took advantage of this right, and was declared unfit to work. This i
s regardless of the fact that it was the 1996 circular that was applicable inste
ad of the 2000 circular, citing Seagull Maritime v Dee (though the 1996 rules ha
d the CDP as controlling, a second opinion can still be sought for given the nat
ure of the work of seaman and the constitutional protection of labor).
- Even then, Dr. Lim's findings did not significantly differ from Caja's. Though
he declared petitioner fit to resume sea duties, the 'disability' remained for
six months. He merely used more positive language given he is the CDP [this is w
hy a second opinion is allowed].
- Still, the contract must be construed in favor of labor. Hence in HFS v Pilar,
the Court showed a tendency to rule in favor of labor given evidence for and ag
ainst the laborer.
- At any rate, when Dr. Lim declared petitioner fit to work, it was 120+ days af
ter the incident. He was disabled for 120+ days [and what's important here is no
t the medical disability, but the inability to perform the job]. This is bolster
ed by continuous diagnosis and treatment by Dr. Lim during that period.
[No BF: In fact, KJGS shouldered the expenses!]
[AF: Forced to litigate.]

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