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Page 1: Labor Cases

EQUI-ASIA PLACEMENT, INC., Petitioner, versus 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

D E C I S I O N

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.

POLO is awaiting signed statements from the 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:

“In connection with your telegram, dated 09/22/2000, 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.”

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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.

x x x x x x 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

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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

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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

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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

D E C I S I O N

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

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(“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

Page 7: Labor Cases

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).

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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

D E C I S I O N

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.

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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

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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:

x x x x

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.

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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

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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

D E C I S I O N

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.

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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.

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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

D E C I S I O N

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

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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

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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:

x x x

(c) Desertion or abandonment;

(d) Drunkenness, especially where the laws of the host country prohibit intoxicating drinks;

x x x

(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

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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

D E C I S I O N

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

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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

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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.

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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

D E C I S I O N

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

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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

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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:

x x x x

(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

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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

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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.

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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

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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.

….

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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

D E C I S I O N

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,

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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,

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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.”

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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.

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.

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.