829 Phil. 381
LEONARDO-DE CASTRO,** J.:
Respondent left for South Korea on September 6, 2003 and worked there as a singer for nine months, until her repatriation to the Philippines sometime in June 2004. Believing that the termination of her contract was unlawful and premature, respondent filed a complaint against petitioners and SAENCO with the NLRC.
1. DURATION AND PERIOD OF EFFECTIVITY OF THE CONTRACT 1.1 Duration: This contract shall be enforced for the period of six months, Extendible by another six months by mutual agreement of the parties. Affectivity (sic): The contract shall commence upon the Talent's departure from The Philippines (Date 6) and shall remain in force as Stipulated in the duration, unless sooner terminated by the mutual consent of The parties or due to circumstances beyond their control. Booking of Talent Shall be effected within three (3) days upon arrival in Korea, But only after Undergoing Mandatory Post-Arrival Briefing at the Philippine Embassy Overseas Labor Office (POLO), Philippine Embassy in Seoul. 2. NAME OF PERFORMANCE VENUE: Siheung Tourist Hotel Night Club NAME OF OWNER: Cho Kang Hyung ADDRESS: 1622-6 (B2) Jung Wang Dons Siheung Kyung Ki Do x x x x (Subject to ocular inspection, Verification, and approval by the POLO) 3. COMPENSATION: The Talent shall receive a monthly compensation of a Minimum of U.S.D. $600, (Ranging from U.S.D. 500 to 800 based on The categories of the ARB, skill and experience of the Talent, and of the Performance Venue) which shall accrue beginning on the day of the Talent's Departure from the Philippines and shall be paid every end of the month directly To The Talent. By the Employer, minus the authorized fees of the Philippine Agent and The Talent Manager, which shall be deducted at a maximum monthly Rates of U.S. $100 and U.S. $100 for the Philippine Agent and Talent Manager, respectively. Deductions of $200/month is good for three (3) months only. 4. HOURS OF WORK, RESTDAY AND OVERTIME PAY 4.1 Hours of work: Maximum of Five (5) hours per day. 4.2 Rest day: One (1) day a week 4.3 Overtime Rate: (100) percent of regular rate or the prevailing rate in Korea as Required by the Labor Standard Act. x x x x 9. The services of the Talents as provided in this contract shall only be rendered at the Performance Venue identified in this contract. Should there be a need and mutual agreement of the parties for the talent to transfer to another Performance Venue There shall be executed a new contract. The new contract shall be subject of Verification requirement of the Philippine Overseas Labor Office, Philippine Embassy. x x x x 12. TERMINATION: A. Termination by the Employer: The Employer may terminate the Contract of Employment for any of the following just causes: serious misconduct or Willful disobedience of the lawful orders of the employer, gross or habitual Neglect of duties, violation of the laws of the host country. When the Termination of the contract is due to the foregoing causes, the Talent shall Bear the cost of repatriation. In addition, the Talent may be liable to Blacklisting and/or other penalties in case of serious offense. B. Termination by the Talent: The Talent may terminate the contract for any of The following just causes: when the Talent is maltreated by the Employer or Any of his/her associates, or when the employer commits of (sic) the following — Non-payment of Talent salary, underpayment of salary in violation of this Contract, non-booking of the Talent, physical molestation, assault or Subjecting the talent to inhumane treatment or shame. Inhumane treatment Shall be understood to include forcing or letting the talent to be used in Indecent performance or in prostitution. In any of the foregoing case, the Employer shall pay the cost of repatriation and be liable to garnishment of The escrow deposit, aside from other penalties that may arise from a case. C. Termination due to illness: Any of the parties may terminate the contract on The ground of illness, disease, or injury suffered by the Talent, where the Latter's continuing employment is prohibited by law or prejudicial to his/her Health, or to the health of the employer, or to others. The cost of the Repatriation of the Talent for any of the foregoing reasons shall be for the Account of the employer.[7]
The facts of the case and the documentary evidence submitted by both parties would show that herein [respondent] was not illegally dismissed. This Office has noted that the POEA approved contract declares that the duration of [respondent's] employment was for six (6) months only. The fact that the duration of [respondent's] employment was for six (6) months only is substantiated by the documentary evidence submitted by both parties. Attached is [respondent's] Position Paper as Annex "D" is a Model Employment Contract for Filipino Overseas Performing Artist to Korea signed by the parties and approved by the POEA. Also attached to the Position Paper of the [petitioners] as Annex "1" is a copy of the Employment Contract signed by the parties and approved by POEA. We readily noted that the common evidence submitted by the parties would prove that [respondent's] employment was for six (6) months only. The deploying agency, Princess. Talent Center Production, Inc. processed the [respondent] for a six-month contract only and there is no showing that the deploying agency participated in the extension of the contract made by the [respondent] herself. There is likewise no evidence on record which would show that the POEA approved such an extension. As matters now stand, this Office has no choice but to honor the six months duration of the contract as approved by the POEA. The conclusion therefore is that the [respondent] was not illegally dismissed since she was able to finish the duration of the contract as approved by the POEA.In the end, the Labor Arbiter dismissed for lack of merit respondent's complaint, as well as all other claims of the parties.[15]
Following the above ruling, the [respondent] is likewise not entitled to the payment of the unexpired portion of the employment contract. This Office could not exactly determine what [respondent] means when she refers to the unexpired portion of the contract. The [respondent] comes to this Office alleging that [petitioners] are still liable to the new extended contract of the employment without however presenting the said contract binding the recruitment agency as jointly and solidarily liable with the principal employer. Such a document is vital as this will prove the participation of the [petitioners] and the latter's assumption of responsibility. Without the presentation of the "extended" contract, the "unexpired portion" could not be determined. [Respondent's] claim therefore for the payment of the unexpired portion of the contract must also fail.
The crux of the present controversy is whether or not [respondent] was paid her salaries during the period she worked in Korea. [Respondent] claims that she was not paid her salaries during the time she worked in Korea. [Petitioners] presented an Affidavit executed by Filipino workers who worked with [respondent] in Korea declaring that they, together with the [respondent], were paid by the foreign employer all their salaries and wages. [Petitioners and SAENCO] likewise presented vouchers showing that the [respondent] received full payment of her salaries during the time that she worked in Korea. In the pleading submitted by the [respondent], she never denied the fact that she indeed signed the vouchers showing full payment of her salaries.
It becomes clear therefore that [respondent] miserably failed to destroy the evidentiary value of the vouchers presented by the [petitioners]. This Office will not dare to declare as void or incompetent the vouchers signed by the [respondent] in the absence of any evidence showing any irregularity so much so that this Office did not fail to notice the inconsistencies in the [respondent's] position paper.
[Respondent's] claim for the payment of overtime pay likewise lacks merit. There was no showing that [respondent] actually rendered overtime work. Mere allegation is not sufficient to establish [respondent's] entitlement to overtime pay. It is [respondent's] obligation to prove that she actually rendered overtime work to entitle her for the payment of overtime pay.[14]
There is sufficient evidence to establish the fact that [respondent] was not paid her regular salaries. A scrutiny of the vouchers presented shows that it bears the peso sign when in fact the salaries of [respondent] were to be received in Korea. Furthermore, it appears that the vouchers were signed in one instance due to similarities as to how they wereBased on the foregoing, the NLRC ruled:
written.
Despite the fact that We find the vouchers questionable, they prove that [respondent] was allowed to work beyond the effectivity of her visa. [Petitioners], wanting to prove that they paid [respondent's] salary, presented vouchers for the period starting October 2003 up to June 2004. It covers nine (9) months which implies that, despite having a visa good for six months, they consented to [respondent] working up to nine months. Otherwise, if they were against [respondent's] overstaying in Korea, they could have asked for her deportation earlier. Also, if [respondent] was misbehaving and went against their policy, they could have taken disciplinary action against her earlier.
The "Magkasamang Sinumpaang Salaysay" of Ms. Tiatco and Ms. Flores, which was presented by [petitioners] to prove the alleged immoral acts of [respondent] and that they received their salaries on time, is self-serving and deserves scant weight as the affiants are beholden to [petitioners and SAENCO] from whom they depended their employment.
We find as more credible [respondent's] allegations that she was made to believe that her contract was for one year and that her overstaying in Korea was with the consent of [petitioners and SAENCO], and that when she refused to surrender the 50% of her commission, that was the only time they questioned her stay and alleged that she committed immoral and illegal acts.
Further, the zealousness of [respondent] in filing a case against [petitioners and SAENCO] in different government agencies for different causes of action manifests the intensity of her desire to seek justice for the sufferings she experienced.
There is sufficient evidence to establish that [petitioners and SAENCO] misrepresented to [respondent] the details of her employment and that she was not paid her salaries. Hence, she is entitled to be paid her salaries for one year at the rate of $600 per month as this was what [petitioners and SAENCO] represented to her.
For lack of proof, however, [respondent] is not entitled to her claim for overtime pay.[18]
WHEREFORE, premises considered, the Decision of Labor Arbiter Antonio R. Macam dated 4 May 2006 is hereby REVERSED and SET ASIDE and a NEW ONE entered ordering [petitioners and SAENCO] to jointly and severally pay [respondent] her salaries for one year at a rate of $600 per month, or a total of US$7,200. The claim for overtime pay is DENIED for lack of sufficient basis.[19]Acting on the Motion for Reconsideration[20] of petitioners, however, the NLRC issued a Resolution[21] on November 11, 2008, reversing its previous Decision. According to the NLRC, respondent's appeal was dismissible for several fatal procedural defects, to wit:
Perusal of the records show that [respondent's] new counsel filed on May 31, 2006 a Motion for Extension of Time to File a Motion for Reconsideration due to lack of material time in preparing a Motion for Reconsideration. However, [respondent's] counsel filed a Memorandum of Appeal through registered mail on June 1, 2006 x x x and paid the appeal fee on July 17, 2006 x x x.Nonetheless, the NLRC set technicalities aside and still proceeded to resolve the case on the merits, ultimately finding that respondent failed to present evidence to prove she had been illegally dismissed:
Rule VI, Section 4 of the 2005 Revised Rules and Procedures of the National Labor Relations Commission provides that:Section 4, requisites for Perfection of Appeal. - a) The appeal shall be: 1) filed within the reglementary period provided in Section 1 of this Rule; 2) verified by the appellant himself in accordance with Section 4, Rule 7 of the Rules of Court, as amended; 3) in the form of a memorandum of appeal which shall state the grounds relied upon and the arguments in support thereof, the relief prayed for, and with a statement of the date the appellant received the appealed decision, resolution or order; 4) in three (3) legibly typewritten or printed copies; and 5) accompanied by i) proof of payment of the required appeal fee, ii) posting of a cash or surety bond as provided in Section 6 of this Rule; iii) a certificate of non-forum shopping; and iv) proof of service upon the other parties.The above-quoted Rules explicitly provides for the requisites for perfecting an appeal, which [respondent] miserably failed to comply. [Respondent's] Memorandum of Appeal contains no averments as to the date [respondent] or her counsel received the Decision of the Labor Arbiter. The appeal is unverified. No certificate of non-forum shopping was attached to the appeal. The appeal fee was paid only on July 17, 2006, or after more than forty-six (46) days from the filing of the Memorandum of Appeal on June 1, 2006. Lacking these mandatory requirements, [respondent's] appeal is fatally defective, and no appeal was perfected within the reglementary period. Consequently, the Decision of the Labor Arbiter had become final and executory. The belated filing of the verification and certification on non-forum shopping will not cure its defect and it only proves that indeed [respondent's] appeal was not perfected at all.[22]
We cannot subscribe to [respondent's] contention that she was illegally dismissed from her employment. Records show that the Model Employment Contract presented as evidence by both [respondent] and [petitioners and SAENCO] would prove that [respondent's] employment was for a period of six (6) months only. Aside from [respondent's] allegation that [petitioners and SAENCO] misrepresented to her that her contract is for a period of one (1) year, there is no other evidence on record which will corroborate and strengthen such allegation. We took note of the fact that [respondent's] Model Employment Contract was verified by the Labor Attache of the Philippine Embassy in Korea and duly approved by the Philippines Overseas Employment Administration (POEA). There is no showing that her contract was extended by [petitioners and SAENCO], or that an extension was approved by the POEA. All the pieces of documentary evidence on record prove otherwise.Consequently, the NLRC granted the Motion for Reconsideration of petitioners and reinstated the Labor Arbiter's Decision dated May 4, 2006 dismissing respondent's complaint against petitioners and SAENCO.[24]
We agree with [petitioners and SAENCO's] argument that [respondent] was given a copy of her employment contract prior to her departure for Korea because [respondent] was required to submit a copy thereof to the Philippine Labor Office upon her arrival in Korea. We are also convinced that [respondent] read and understood the terms and conditions of her Model Employment Contract because of the following reasons: First, [respondent] was informed thereof when a post arrival briefing was conducted at the Philippine Embassy Overseas Labor Office. This procedure is mandatory, and the booking of the talent shall be effective only within three (3) days after her arrival in Korea. Second, [respondent's] passport shows that her visa is valid only for six (6) months x x x. Third, the Model Employment Contract has been signed by [respondent] on the left hand margin on each and every page and on the bottom of the last page thereof x x x. Fourth, [respondent's] claim that [petitioners and SAENCO] forced her in signing two (2) employment contracts appears to be doubtful considering that she avers that she was not able to read the terms and conditions of her employment contract. It is amazing how she was able to differentiate the contents of the two (2) contracts she allegedly signed without first reading it.
On the basis of the foregoing, [respondent's] contention that she did not know the terms and conditions of her Model Employment Contract, in particular the provision which states that her contract and her visa is valid only for six (6) months, lacks credence. Thus, it can be concluded that she was not dismissed at all by [petitioners and SAENCO] as her employment contract merely expired.
As to [respondent's] allegation that she was not paid her salaries during her stay in Korea, [petitioners and SAENCO] presented cash vouchers and affidavits of co-employees showing that [respondent] was paid US$600 per month by her Korean employer. [Respondent] failed to prove that the vouchers were faked, or her signatures appearing thereon were falsified. Hence, [respondent] is not entitled to her claim for unpaid salaries.
On her claim for the payment of her salary for the unexpired portion of her contract, We agree with the findings of the Labor Arbiter that the same lacks merit considering that she was able to finish her six (6) month employment contract.[23]
The requisites for perfecting an appeal before the NLRC are laid down in Rule VI of the 2005 Revised Rules of Procedure of the NLRC. Section 4 of the said Rule requires that the appeal shall be verified by the appellant, accompanied by a certification of non-forum shopping and with proof of payment of appeal fee. As a general rule, these requirements are mandatory and non-compliance therewith would render the appealed judgment final and executory. Be that as it may, jurisprudence is replete that courts have adopted a relaxed and liberal interpretation of the rules on perfection of appeal so as to give way to the more prudent policy of deciding cases on their merits and not on technicality, especially if there was substantial compliance with the rules.The appellate court then held that respondent was dismissed from employment without just cause and without procedural due process and that petitioners and SAENCO were solidarity liable to pay respondent her unpaid salaries for one year and attorney's fees:
In the case of Manila Downtown YMCA vs. Remington Steel Corp., the Supreme Court held that non-compliance with [the] verification does not necessarily render the pleading fatally defective, hence, the court may order its correction if verification is lacking, or act on the pleading although it is not verified, if the attending circumstances are such that strict compliance with the Rules may be dispensed with in order that the ends of justice may thereby served. Moreover, in Roadway Express, Inc. vs. CA, the High Court allowed the filing of the certification against forum shopping fourteen (14) days before the dismissal of the petition. In Uy v. LandBank, the petition was reinstated on the ground of substantial compliance even though the verification and certification were submitted only after the petition had already been originally dismissed.
Here, the records show that [respondent] had no intent to delay, or prolong the proceedings before the NLRC. In fact, the NLRC, in its Resolution dated November 11, 2008 took note that [respondent] belatedly filed her verification and certification on non-forum shopping. Such belated filing should be considered as substantial compliance with the requirements of the law for perfecting her appeal to the NLRC. Moreover, the appeal fee was eventually paid on July 17, 2006. Clearly, [respondent] had demonstrated willingness to comply with the requirements set by the rules. Besides, in its earlier Decision dated May 22, 2008, the First Division of the NLRC brushed aside these technicalities and gave due course to [respondent's] appeal.
Verily, We deem it prudent to give a liberal interpretation of the technical rules on appeal, talcing into account the merits of [respondent's] case. After all, technical rules of procedure in labor cases are not to be strictly applied in order to serve the demands of substantial justice.[27] (Citations omitted.)
Time and again, it has been ruled that the onus probandi to prove the lawfulness of the dismissal rests with the employer. In termination cases, the burden of proof rests upon the employer to show that the dismissal was for just and valid cause. Failure to do so would necessarily mean that the dismissal was not justified and, therefore, was illegal. In Royal Crown Internationale vs. National Labor Relations Commission and Nacionales, the Supreme Court held that where termination cases involve a Filipino worker recruited and deployed for overseas employment, the burden to show the validity of the dismissal naturally devolves upon both the foreign-based employer and the employment agency or recruitment entity which recruited the worker, for the latter is not only the agent of the former, but is also solidarity liable with its foreign principal for any claims or liabilities arising from the dismissal of the worker.The Court of Appeals determined the respective liabilities of petitioners and SAENCO for respondent's illegal dismissal to be as follows:
In the case at bar, [petitioners] failed to discharge the burden of proving that [respondent] was terminated from employment for a just and valid cause.
[Petitioners'] claim that [respondent] was deported because her employment contract has already expired, was without any basis. Before being deployed to South Korea, [petitioners] made [respondent] believe that her contract of employment was for one (1) year. [Respondent] relied on such misrepresentation and continuously worked from September 11, 2003 up [to] June 24, 2004 or for more than nine (9) months. [Petitioners] never questioned her stay beyond the six-month period. If [petitioners] were really against her overstaying in Korea, they could have easily asked their principal, [SAENCO], to facilitate her immediate deportation. Even when [petitioner] Moldes sent the demand letter to [respondent] in May 2004 or when she came to Korea to pay the salaries of the performers in June 2004, she never mentioned that [respondent's] contract has already expired.
Moreover, in the Model Employment Contract for Filipino Overseas Performing Artists (OPAS) to Korea filed with the POEA which was entered into between [respondent] and [petitioners], it was categorically stated therein that the name of her performance venue was Si Heung Tourist Hotel Night Club, owned by Cho Kang Hyung and with address at Jung Wang Dong Siheung Kuyng Ki Do. However, [respondent] was made to work at Seaman's Seven Pub located at Ulsan, South Korea owned by a certain Lee Young-Gun. [Respondent's] employment contract also states that she should be receiving a monthly salary of US$600.00 and not US$400.00 as represented to her by [petitioner] Moldes.
The Court cannot likewise adhere to [petitioners'] claim that [respondent] committed serious misconduct and willful disobedience to the lawful orders of her employer when she allegedly danced in an immoral manner, wore skimpy costumes, and went out with clients. This Court is convinced from the records and pictures submitted by [respondent] that her Korean employer, Lee Young-Gun, ordered them to wear provocative skirts while dancing and singing to make the pub more attractive to their customers. Even the Seaman's Seven Pub poster itself was advertising its singers and dancers wearing provocative dresses. [Respondent] was not even hired as a dancer, but only as a singer as shown by her Overseas Filipino Worker Information. Besides, if [respondent] was misbehaving offensively as early as September 2003, her employer could have likewise terminated her employment at the earliest opportunity to protect its interest. Instead, [respondent] was allowed to work even beyond the period of her contract. Thus, [petitioners'] defenses appear to be more of an afterthought which could not be given any weight.
Furthermore, [respondent] was not afforded her right to procedural due process of notice and hearing before she was terminated. In the same case of Royal Crown Internationale vs. National Labor Relations Commission and Nacionales, the Supreme Court ruled that all Filipino workers, whether employed locally or overseas, enjoy the protective mantle of Philippine labor and social legislation, contract stipulations to the contrary notwithstanding. This pronouncement is in keeping with the basic policy of the State to afford full protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed, and regulate the relations between workers and employers.
In the instant case, the records show that [respondent] was publicly accosted and humiliated by one Park Sun Na, the President of [SAENCO], and was brought to its office in Seoul, Korea, which was a six (6) hour drive from the pub. Such acts were witnessed and narrated by Wolfgang Pelzer, a Professor in the School of English, University of Ulsan, South Korea and a frequent client of Seaman's Seven Pub, in his Affidavit dated August 16, 2004. When it became apparent that [respondent] would not be apologizing to [petitioner] Moldes nor would she dismiss her lawyer in the Philippines, Park Sun Na turned her over to the local authorities of South Korea. [Respondent] was then deported to the Philippines allegedly for expiration of her visa. Worst, she was not allowed to get her personal belongings which she left at the pub.
It may also be noted that [respondent] went to all the trouble of filing cases against [petitioners] in different government agencies for different causes of action. Such zealousness of [respondent] manifests the intensity of her desire to seek justice for the wrong done to her.[28] (Citations omitted.)
For being illegally dismissed, [respondent] is rightfully entitled to her unpaid salaries for one (1) year at the rate of US$600.00 per month or a total of US$7,200.00. The US$600.00 per month was based on the rate indicated in her contract [of] employment filed with the POEA. [Petitioners] also failed to present convincing evidence that [respondent's] salaries were actually paid. The cash vouchers presented by [petitioners] were of doubtful character considering that they do not bear [SAENCO's] name and tax identification numbers. The vouchers also appear to have been signed in one instance due to the similarities as to how they were written.The dispositive portion of the judgment of the appellate court reads:
[Petitioner PTCPI and SAENCO] should be held solidarity liable for the payment of [respondent's] salaries. In Datuman vs. First Cosmopolitan Manpower and Promotion Services, Inc., the Supreme Court ruled that private employment agencies are held jointly and severally liable with the foreign-based employer for any violation of the recruitment agreement or contract of employment. This joint and solidary liability imposed by law against recruitment agencies and foreign employers is meant to assure the aggrieved worker of immediate and sufficient payment of what is due him. This is in line with the policy of the state to protect and alleviate the plight of the working class.
We likewise rule that [petitioner] Moldes should be held solidarity liable with [petitioner PTCPI and SAENCO] for [respondent's] unpaid salaries for one year. Well settled is the rule that officers of the company are solidarity liable with the corporation for the termination of employees if they acted with malice or bad faith. Here, [petitioner] Moldes was privy to [respondent's] contract of employment by taking an active part in the latter's recruitment and deployment abroad. [Petitioner] Moldes also denied [respondent's] salary for a considerable period of time and misrepresented to her the duration of her contract of employment.
[Respondent] should also be awarded attorney's fees equivalent to ten percent (10%) of the total monetary awards. In Asian International Manpower Services, Inc., (AIMS) vs. Court of Appeals and Lacerna, the Supreme Court held that in actions for recovery of wages or where an employee was forced to litigate and thus incurred expenses to protect his rights and interests, a maximum often percent (10%) of the total monetary award by way of attorney's fees is justified under Article 111 of the Labor Code, Section 8, Rule VIII, Book III of its Implementing Rules, and paragraph 7, Article 2208 of the Civil Code.[29] (Citations omitted.)
WHEREFORE, premises considered, the instant petition for is hereby GRANTED. The assailed Resolutions of public respondent NLRC, First Division, dated November 11, 2008 and January 30, 2009 are ANNULLED AND SET ASIDE. Accordingly, [petitioner PTCPI, SAENCO, and petitioner Moldes] are ORDERED to jointly and severally pay [respondent's] unpaid salaries for one (1) year at a rate of US$600.00 per month or a total of US$7,200.00. In addition, [petitioners and SAENCO] are ORDERED to jointly and severally pay [respondent] attorney's fees equivalent to ten percent (10%) of the total monetary award.[30]The Motion for Reconsideration[31] of petitioners was denied by the Court of Appeals in a Resolution dated February 16, 2010 because the issues raised therein were already judiciously evaluated and passed upon by the appellate court in its previous Decision, and there was no compelling reason to modify or reverse the same.
The Honorable Court of Appeals erred and abused its action when it ruled that private respondent is entitled to recover from the petitioners her alleged unpaid salaries during her employment in South Korea despite of (sic) the abundance of proof that she was fully paid of (sic) her salaries while working as [an] overseas contract worker in South Korea.[32]Petitioners maintain that respondent initially worked at Siheung Tourist Hotel Night Club (Siheung Night Club). After completing her six-month employment contract in Siheung Night Club, respondent decided to continue working at Ulsan Seaman's Seven Pub without the consent of petitioners. Throughout her employment in South Korea, respondent's salaries were paid as evidenced by the cash vouchers and Entertainer Wage Roster,[33] which were signed by respondent and attached to the "Reply"[34] dated January 11, 2010 of Park, Chief Executive Officer (CEO) of SAENCO, duly notarized per the Certificate of Authentication[35] dated January 25, 2010 issued by Consul General Sylvia M. Marasigan of the Philippine Embassy in Seoul, South Korea and the Notarial Certificate of Sang Rock Law and Notary Office, Inc.[36]
Security of tenure for labor is guaranteed by our Constitution.Since respondent's Employment Contract was executed in the Philippines on February 3, 2003, Philippine Constitution and labor laws governed respondent's employment with petitioners and SAENCO. An employee's right to security of tenure, protected by the Constitution and statutes, means that no employee shall be dismissed unless there are just or authorized causes and only after compliance with procedural and substantive due process. A lawful dismissal by an employer must meet both substantive and procedural requirements; in fine, the dismissal must be for a just or authorized cause and must comply with the rudimentary due process of notice and hearing.[44]
Employees are not stripped of their security of tenure when they move to work in a different jurisdiction. With respect to the rights of overseas Filipino workers, we follow the principle of lex loci contractus.
Thus, in Triple Eight Integrated Services, Inc. v. NLRC, this court noted:Petitioner likewise attempts to sidestep the medical certificate requirement by contending that since Osdana was working in Saudi Arabia, her employment was subject to the laws of the host country. Apparently, petitioner hopes to make it appear that the labor laws of Saudi Arabia do not require any certification by a competent public health authority in the dismissal of employees due to illness.Even with respect to fundamental procedural rights, this court emphasized in PCL Shipping Philippines, Inc. v. NLRC, to wit:
Again, petitioner's argument is without merit.
First, established is the rule that lex loci contractus (the law of the place where the contract is made) governs in this jurisdiction. There is no question that the contract of employment in this case was perfected here in the Philippines. Therefore, the Labor Code, its implementing rules and regulations, and other laws affecting labor apply in this case. Furthermore, settled is the rule that the courts of the forum will not enforce any foreign claim obnoxious to the forum's public policy. Here in the Philippines, employment agreements are more than contractual in nature. The Constitution itself, in Article XIII, Section 3, guarantees the special protection of workers, to wit:The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.This public policy should be borne in mind in this case because to allow foreign employers to determine for and by themselves whether an overseas contract worker may be dismissed on the ground of illness would encourage illegal or arbitrary pre-termination of employment contracts, x x x.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.
x x x xPetitioners admit that they did not inform private respondent in writing of the charges against him and that they failed to conduct a formal investigation to give him opportunity to air his side. However, petitioners contend that the twin requirements of notice and hearing applies strictly only when the employment is within the Philippines and that these need not be strictly observed in cases of international maritime or overseas employment.By our laws, overseas Filipino workers (OFWs) may only be terminated for a just or authorized cause and after compliance with procedural due process requirements. (Citations omitted.)
The Court does not agree. The provisions of the Constitution as well as the Labor Code which afford protection to labor apply to Filipino employees whether working within the Philippines or abroad. Moreover, the principle of lex loci contractus (the law of the place where the contract is made) governs in this jurisdiction. In the present case, it is not disputed that the Contract of Employment entered into by and between petitioners and private respondent was executed here in the Philippines with the approval of the Philippine Overseas Employment Administration (POEA). Hence, the Labor Code together with its implementing rules and regulations and other laws affecting labor apply in this case. x x x.
Section 10. Money Claims. — Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an 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.The Court finds that respondent had been paid her salaries for the nine months she worked in Ulsan, South Korea, so she is no longer entitled to an award of the same.
The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provision shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to be filed by the recruitment/placement agency, as provided by law, shall be answerable for all monetary claims or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarity liable with the corporation or partnership for the aforesaid claims and damages.
Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification made locally or in a foreign country of the said contract.
Any compromise/amicable settlement or voluntary agreement on monetary claims inclusive of damages under this section shall be paid within four (4) months from the approval of the settlement by the appropriate authority.
In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the worker shall be entitled to the full reimbursement of his placement fee with interest at twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less. (Emphases supplied.)
The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provision shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to be filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarity liable with the corporation or partnership for the aforesaid claims and damages.The aforequoted provision is plain and clear, the joint and several liability of the principal/employer, recruitment/placement agency, and the corporate officers of the latter, for the money claims and damages of an overseas Filipino worker is absolute and without qualification. It is intended to give utmost protection to the overseas Filipino worker, who may not have the resources to pursue her money claims and damages against the foreign principal/employer in another country. The overseas Filipino worker is given the right to seek recourse against the only link in the country to the foreign principal/employer, i.e., the recruitment/placement agency and its corporate officers. As a result, the liability of SAENCO, as principal/employer, and petitioner PTCPI, as recruitment/placement agency, for the monetary awards in favor of respondent, an illegally dismissed employee, is joint and several. In turn, since petitioner PTCPI is a juridical entity, petitioner Moldes, as its corporate officer, is herself jointly and solidarity liable with petitioner PTCPI for respondent's monetary awards, regardless of whether she acted with malice or bad faith in dealing with respondent.