Labor Cases (1)

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1. From: Mr. Bartolome ARLENE N. LAPASARAN,Petitioner,vs.PEOPLE OF THE PHILIPPINES,Respondent.

Facts:In September 2001, private complainant Menardo Villarin (Menardo) and his sister Vilma Villarin (Vilma) met petitioner Arlene N. Lapasaran, who worked at Silver Jet Travel Tours Agency (Silver Jet) atSIMCASBuilding,Makati.For a fee ofP85,000.00, petitioner undertook the processing of the papers necessary for the deployment (under a tourist visa) and employment of Menardo inSouth Korea.Petitioner informed Menardo that he would be employed as factory worker, which was, subsequently, changed to bakery worker.Thereafter, Menardo paid the said fee in installments, the first in September 2001 in the amount ofP10,000.00, which was received by a certain Pastor Paulino Cajucom;the second installment wasP35,000.00; while the third and last payment wasP40,000.00; the last two installments were delivered to the petitioner.After two postponements in his flight schedule, Menardo finally left forSouth Koreaon November 25, 2001.Unfortunately, he was incarcerated by South Korean immigration authorities and was immediately deported to thePhilippinesbecause the travel documents issued to him by the petitioner were fake. He immediately contacted petitioner and informed her of what happened.Thereupon, petitioner promised to send him back toSouth Korea, but the promise was never fulfilled.Consequently, Menardo and his sister Vilma demanded the return of the money they paid, but petitioner refused and even said, Magkorte na lang tayo.It was later found out that petitioner was no longer connected with Silver Jet.Hence, the separate charges for illegal recruitment and estafa against petitioner before the RTC ofManila. When arraigned, she pleaded not guilty to both charges.In her defense, petitioner testified that she owned a travel agency named A&B Travel and Tours General Services, engaged in the business of visa assistance and ticketing.She averred that it was Vilma who solicited her assistance to secure a tourist visa for Menardo.She admitted transacting with the Villarins, but committed only to securing a tourist visa and a two-way airplane ticket for Menardo, for which she receivedP70,000.00 as payment.She denied having recruited Menardo Villarin; she likewise denied having promised him employment inSouth Korea.On February 15, 2005, the RTC rendered a Decision findingpetitioner guilty beyond reasonable doubt of illegal recruitment and estafa. The CA affirmed with modifications.

Issue: WHETHER OR NOT THE LAWS ON ILLEGAL RECRUITMENT AND ESTAFA ARE APPLICABLE IN THIS CASE.

Held:Both laws are affirmative on both accounts. In the first case, petitioner was charged with illegal recruitment, defined and penalized by the Labor Code as amended R.A. No. 8042.Illegal recruitment is committed when it is shown that petitioner gave the complainant the distinct impression that she had the power or ability to send the complainant abroad for work, such that the latter was convinced to part with his money in order to be employed. Petitioners misrepresentations concerning her purported power and authority to recruit for overseas employment, and the collection from Menardo of various amounts, clearly indicate acts constitutive of illegal recruitment. In the second case, petitioner was charged with violation of Article 315(2)(a) of the Revised Penal Code which punishes estafa. The elements of the crime are: (a) the accused defrauded another by abuse of confidence or by means of deceit; and (b) damage or prejudice capable of pecuniary estimation is caused to the offended party. Here, it has been sufficiently proven that petitioner represented herself to Menardo as capable of sending him toSouth Koreafor employment, even if she did not have the authority or license for the purpose.Undoubtedly, it was this misrepresentation that induced Menardo to part with his hard-earned money in exchange for what he thought was a promising future abroad.The act of petitioner clearly constitutes estafa under the above-quoted provision. It is well established in jurisprudence that a person may be convicted of both illegal recruitment and estafa.The reason, therefore, is not hard to discern:illegal recruitment ismalum prohibitum, while estafa ismalum in se.In the first, the criminal intent of the accused is not necessary for conviction.In the second, such intent is imperative. Petition denied. CA decision affirmed.

2. From: Mr. Bartolome

PEOPLE OF THE PHILIPPINES,petitioner,vs.HON. DOMINGO PANIS, Presiding Judge of the Court of First Instance of Zambales & Olongapo City, Branch III and SERAPIO ABUG,respondents.

Facts:Four informations were filed on January 9, 1981, in the Court of First Instance of Zambales and Olongapo City alleging that Serapio Abug, private respondent herein, "without first securing a license from the Ministry of Labor as a holder of authority to operate a fee-charging employment agency, did then and there wilfully, unlawfully and criminally operate a private fee charging employment agency by charging fees and expenses (from) and promising employment in Saudi Arabia" to four separate individuals named therein, in violation of Article 16 in relation to Article 39 of the Labor Code.

Abug filed a motion to quash on the ground that the informations did not charge an offense because he was accused of illegally recruiting only one person in each of the four informations. Under the proviso in Article 13(b), he claimed, there would be illegal recruitment only "whenever two or more persons are in any manner promised or offered any employment for a fee. ". Denied at first, the motion was reconsidered and finally granted in the Orders of the trial court dated June 24 and September 17, 1981. The prosecution is now before us on certiorari.

Issue:Whether or not the act should involve two or more persons to constitute recruitment and placement.

Held:Negative. The proviso was intended neither to impose a condition on the basic rule nor to provide an exception thereto but merely to create a presumption. The presumption is that the individual or entity is engaged in recruitment and placement whenever he or it is dealing with two or more persons to whom, in consideration of a fee, an offer or promise of employment is made in the course of the "canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring (of) workers."The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. Any of the acts mentioned in the basic rule in Article 13(b) win constitute recruitment and placement even if only one prospective worker is involved. The proviso merely lays down a rule of evidence that where a fee is collected in consideration of a promise or offer of employment to two or more prospective workers, the individual or entity dealing with them shall be deemed to be engaged in the act of recruitment and placement. The words "shall be deemed" create that presumption. The four informations are reinstated.

3. From: Mr. Miranda

ANTONIO M. SERRANO,Petitioner,vs.Gallant MARITIME SERVICES, INC. and MARLOW NAVIGATION CO., INC.,Respondents

Facts:Petitioner Antonio Serrano was hired by respondents Gallant Maritime Services, Inc. and Marlow Navigation Co., Inc., under a POEA-approved contract of employment for 12 months, as Chief Officer, with the basic monthly salary of US$1,400, plus $700/month overtime pay, and 7 days paid vacation leave per month.

On March 19, 1998, the date of his departure, Serrano was constrained to accept a downgraded employment contract for the position of Second Officer with a monthly salary of US$1,000 upon the assurance and representation of respondents that he would be Chief Officer by the end of April 1998.

Respondents did not deliver on their promise to make Serrano Chief Officer. Hence, Serrano refused to stay on as second Officer and was repatriated to the Philippines on May 26, 1998, serving only two (2) months and seven (7) days of his contract, leaving an unexpired portion of nine (9) months and twenty-three (23) days.

Serrano filed with the Labor Arbiter (LA) a Complaint against respondents for constructive dismissal and for payment of his money claims in the total amount of US$26,442.73 (based on the computation of $2590/month from June 1998 to February 199, $413.90 for March 1998, and $1640 for March 1999) as well as moral and exemplary damages.

The LA declared the petitioners dismissal illegal and awarded him US$8,770, representing his salary for three (3) months of the unexpired portion of the aforesaid contract of employment, plus $45 for salary differential and for attorneys fees equivalent to 10% of the total amount; however, no compensation for damages as prayed was awarded.

On appeal, the NLRC modified the LA decision and awarded Serrano $4669.50, representing three (3) months salary at $1400/month, plus 445 salary differential and 10% for attorneys fees. This decision was based on the provision of RA 8042, which was made into law on July 15, 1995.

Serrano filed a Motion for Partial Reconsideration, but this time he questioned the constitutionality of the last clause in the 5th paragraph of Section 10 of RA 8042, which reads:

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

The NLRC denied the Motion; hence, Serrano filed a Petition for Certiorari with the Court of Appeals (CA), reiterating the constitutional challenge against the subje