520 Phil. 828
CARPIO, J.:
In March 1994, complainant Anita Rodriguez applied with respondent Philempl[o]y Services and Resources, Inc. at 36 Main Ave. cor. 8th Ave., Cubao, Quezon City for deployment abroad as a factory worker.
After her interview, complainant secured the necessary documentation for her travel, such as passport, medical certificate, NBI clearance, among others, to which she expended the sum of P2,000.00.
In December 1994, she set out from Cotabato to Manila to report to the office of respondent after she had received a telegram (Annex "A") requiring her to report.
Ms. Brenda Castro, an official of respondent, demanded from complainant the sum of P60,000.00 as placement fee. Since she could not afford such amount, they agreed that she would have to pay initially the amount of P30,000.00 as downpayment and the balance of P30,000.00, plus 7% interest every month thereafter through salary deductions.
After she had pledged her motorcycle and a necklace, she paid Ms. Castro the amount of P30,000.00 plus 10% interest on December 29, 1994, but she was not issued any receipt.
Thereafter, she executed a contract of employment as a domestic helper of one Chao Hung Ching of Taipei, Taiwan with a monthly salary of NT$14,010, plus free food and accommodation for a period of one (1) year. (Annexes "A" and "B")
On January 11, 1995, she again reported to the office of respondent where another sum of P900.00 for Medicare was required on complainant. After she had pledged her College ring, she paid respondent said amount.
On January 13, 1995, she was deployed by respondent to the latter's principal arriving in Taiwan later that day. (Annex "D")
As such domestic helper, she worked from 5:00 a.m. until 10:00 p.m. Among her chores were to carwash the vehicle of her master, cook the meals, housecleaning and babysitting.
For her desire to improve her lot, as well as those she left behind, she weathered all the hardships and loneliness working abroad.
In the morning of January 24, 1995, she wrote her family in the Philippines of her difficulties as a DH in Taiwan and of her desire to return home after her one-year contract. She requested the wife of [her] master to mail said letter. Later that evening, she had a talk with her master where she was told that she is sending her home on account of certain problems. Complainant pleaded that she continue her employment, confronted as she was with the debts she had to pay.
On January 25, 1995, complainant was accompanied to the airport by a certain Ms. Go to whom she inquired why she was being repatriated to the Philippines. All that Ms. Go answered was that there was some kind of a problem. While at the airport, Ms. Go forced complainant to sign an Affidavit where it stated, among others, that her leaving as a DH was voluntary and that she would assume all the obligations for her travel back to the Philippines. Since complainant did not want to sign said Affidavit, Ms. Go took complainant to the Office of the Foreign Affairs where, through an immigration police, complainant's passport and plane ticket were given to her. Two policemen accompanied complainant board the plane bound for the Philippines.
From January 13 to 24, 1995 or a period of twelve (12) days, complainant was only paid the sum of NT$1,931.00.
In resisting complainant's allegations, respondent, in its Position Paper with an accompanying Affidavit of Bayani Fontanilla, Jr. and annexes, asserted the following material averments, to wit:
Complainant was hired and deployed for Taiwan as a domestic helper for a one-year contract with principal Chao Hung Ching in Taiwan with a monthly salary of NT$14,010.00. Among other stipulations of the contract, it was agreed that she would undergo a forty (40) days probationary period before she becomes a regular domestic helper.
WHEREFORE, premises considered, judgment is hereby rendered ordering respondents jointly and severally to pay complainant the sum of P10,900.00 representing the excess placement fee paid by her; the amount of NT$161,115.00 or its peso equivalent in the amount of P155,411.15 representing her unearned wages corresponding to the unexpired portion of her contract; NT$3,492.22 or its peso equivalent in the amount of P3,368.59 representing salary differentials; and ten percent (10%) of the total monetary award due complainant as attorney's fees.
SO ORDERED.[6]Philemploy Services and Resources, Inc. ("petitioner") and Chao Hung Ching appealed to the NLRC. The NLRC rendered its decision on 11 June 1998. The pertinent parts of the decision read as follows:
Right from the time complainant was accepted as an applicant for the position of Caretaker/Domestic helper, she has already a second thought about said position. Her reason is that it is not the position she applied for. (see No. 7 of complainant's Sinumpaang Salaysay, page 30, record). This statement is not found in the Arbiter's translation into English of such Sinumpaang Salaysay which was adopted by complainant as part of her position paper, and upon which the Labor Arbiter's a quo factual antecedents have been derived.
Indeed, such omitted material facts coming from complainant herself, is pregnant of bold manifestation that in fact she had difficulty in adjusting herself to the nature of her accepted position different from what was intended. It reinforces thus, respondents' observation that complainant misrepresented herself to her foreign employer that she knows the household chores.
Yet, despite all of these misgivings shown by complainant, her foreign employer was willing to give her time to organize and learn herself the duties and responsibilities attendant to the position of house helper. But the same becomes naught when she insisted to be repatriated before the end of the one-year contract.
Normally, this Commission does not disturb the factual finding of the Labor Arbiter a quo when supported by substantial evidence. (Union of Filipino Workers vs. NLRC, G.R. No. 98111, April 7, 1993).The dispositive portion of the decision of the NLRC reads:
But in this case, We find it more prudent to deviate from said decisional rule to avoid injustice.
We sympathize with the misfortune of complainant, but factual as well as corroborative circumstances speak loudly against the charge of dismissal. Complainant preferred to go back home earlier than expected. As such, she should not be allowed to utilize this forum as a convenient avenue to enforce a claim which is devoid of factual or legal basis.[7]
WHEREFORE, in view thereof, the appealed decision is hereby modified deleting the award of P155,411.15 representing unearned wages corresponding to the unexpired portion of the contract, there being no illegal dismissal that took place.Anita Rodriguez ("Anita") filed a motion for reconsideration on 3 September 1998.[9]
In all other respects, the decision is affirmed.
SO ORDERED.[8]
While it is conceded that respondents had filed their appeal within the period permitted by law yet, it is submitted that the said appeal should not have been entertained on the very simple ground that the surety bond it submitted to perfect their appeal is a "FAKE" and "FORGERIES" as certified to by no less than NORMA A. VILLANO, Assistant Vice President of the Eastern Assurance & Surety Corporation in her letter dated September 11 and 14, 1998 regarding the surety bonds Nos. G(16)54276 B-2772 in the amount of P118,779.69 and G(16)54194/B-2691 in the amount of P50,000.00, respectively.[11]Anita asserted that since petitioner failed to comply with the requirements for perfecting an appeal, no appeal was perfected from the decision of the Labor Arbiter and petitioner's appeal should have been "outrightly dismissed."[12]
Before We act on the instant petition for certiorari, the petitioner is directed to inform this Court in writing, within five (5) days from receipt hereof, the date when C. S. Cruz and Associates, her counsel, received a copy of the Resolution dated February 3, 1999 in the case before the National Labor Relations Commission.On 17 April 2000, Anita's new counsel, Emerson C. Tumanon ("Atty. Tumanon"), filed with the Court of Appeals his Entry of Appearance and Compliance.[16] Atty. Tumanon asserted that Anita engaged his services as counsel in the present case in view of the death of Anita's former counsel, Ciriaco S. Cruz ("Atty. Cruz"), on 26 June 1999. Atty. Tumanon stated that upon verification with the records of the NLRC, he found out that Atty. Cruz never received a copy of the assailed 3 February 1999 Resolution.
SO ORDERED.[15]
WHEREFORE, premises considered, the decision of the NLRC dated June 11, 1998, as well as its Resolution of February 3, 1999 is hereby REVERSED and SET ASIDE. In lieu thereof, the decision of the Labor Arbiter dated December 26, 1996 is hereby REINSTATED.The Court of Appeals ruled that, contrary to the view of the NLRC, the fact that Anita "had a second thought about her position as a caretaker or domestic helper as it was not the position she applied for, was not pregnant of bold manifestation that in fact she had difficulty in adjusting herself to the nature of her accepted position." The Court of Appeals stated that neither would Anita's "second thoughts" bolster petitioner's allegation that Anita "misrepresented to her foreign employer that she knows the house chores."
SO ORDERED.[17]
- The Petition for Certiorari filed by respondent before the Court of Appeals docketed as CA-G.R. No. Sp-54386 was out of time, hence, the Court of Appeals had no jurisdiction to entertain the same; and
- The factual findings of the Court of Appeals are contrary to those of the National Labor Relations Commission in NLRC Case No. Adj. (L) 95-01-0306.[18]
Probationary employment. There is probationary employment where the employee, upon his engagement, is made to undergo a trial period during which the employer determines his fitness to qualify for regular employment, based on reasonable standards made known to him at the time of engagement.Indeed, an employer, in the exercise of its management prerogative, may hire an employee on a probationary basis in order to determine his fitness to perform his work. The employee's services may be terminated for a just cause or for his failure to qualify as a regular employee based on reasonable standards made known to him at the time of his engagement.[25]Probationary employment shall be governed by the following rules:
x x x x(c) The services of any employee who has been engaged on probationary basis may be terminated only for a just or authorized cause, when he fails to qualify as a regular employee in accordance with reasonable standards prescribed by the employer.
(d) In all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Where no standards are made known to the employee at that time, he shall be deemed a regular employee.
Security of tenure. (a) In cases of regular employment, the employer shall not terminate the services of an employee except for just or authorized causes as provided by law, and subject to the requirements of due process.
(b) The foregoing shall also apply in cases of probationary employment; provided, however, that in such cases, termination of employment due to failure of the employee to qualify in accordance with the standards of the employer made known to the former at the time of engagement may also be a ground for termination of employment.
x x x x
(d) In all cases of termination of employment, the following standards of due process shall be substantially observed:
x x x x
If the termination is brought about by the completion of a contract or phase thereof, or by failure of an employee to meet the standards of the employer in the case of probationary employment, it shall be sufficient that a written notice is served the employee within a reasonable time from the effective date of termination. (Emphasis supplied)Records disclose that Anita was repatriated to the Philippines on 25 January 1995. On the night before her departure, her employer's wife merely told her that she was sending her home "on account of some problem." When Anita asked Ms. Go, who accompanied her to the airport the following day, why she was being repatriated, Ms. Go merely answered that "there was some kind of a problem."[28]
Where the dismissal is for a just cause, as in the instant case, the lack of statutory due process should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer should indemnify the employee for the violation of his statutory rights, as ruled in Reta v. National Labor Relations Commission. The indemnity to be imposed should be stiffer to discourage the abhorrent practice of "dismiss now, pay later," which we sought to deter in the Serrano ruling. The sanction should be in the nature of indemnification or penalty and should depend on the facts of each case, taking into special consideration the gravity of the due process violation of the employer.Petitioner contends that since only the date of the second notice of the postmaster — 23 February 1999 — is readable, it can be deduced from this that Atty. Cruz constructively received the 3 February 1999 Resolution on 28 February 1999 or five days from 23 February 1999.
Under the Civil Code, nominal damages is adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.
As enunciated by this Court in Viernes v. National Labor Relations Commission, an employer is liable to pay indemnity in the form of nominal damages to an employee who has been dismissed if, in effecting such dismissal, the employer fails to comply with the requirements of due process. The Court, after considering the circumstances therein, fixed the indemnity at P2,590.50, which was equivalent to the employee's one month salary. This indemnity is intended not to penalize the employer but to vindicate or recognize the employee's right to statutory due process which was violated by the employer.
The violation of the petitioners' right to statutory due process by the private respondent warrants the payment of indemnity in the form of nominal damages. The amount of such damages is addressed to the sound discretion of the court, taking into account the relevant circumstances. Considering the prevailing circumstances in the case at bar, we deem it proper to fix it at P30,000.00. We believe this form of damages would serve to deter employers from future violations of the statutory due process rights of employees. At the very least, it provides a vindication or recognition of this fundamental right granted to the latter under the Labor Code and its Implementing Rules.
While it is no longer necessary to resolve the other issues presented in this petition, still we opt to discuss them one by one.
Petitioner asserts that Anita filed her petition for certiorari before the Court of Appeals out of time. According to petitioner, on the envelope containing the assailed 3 February 1999 Resolution are annotations consisting of: (a) Atty. Ciriaco S. Cruz, C. S. Cruz & Associates, Counsel for Complainant, 1801 Int. J. P. Laurel St., San Miguel, Manila; (b) First Notice; (c) Second Notice; (d) Third Notice; and (e) Return to Sender Unclaimed. Petitioner asserts that these annotations reveal how, when, and to whom delivery of the mail was made.
Service of judgments, final orders or resolutions. — Judgments, final orders or resolutions shall be served either personally or by registered mail. x x xSection 10 of the same Rule provides:
Completeness of service. — Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier.The rule on service by registered mail contemplates two situations: (1) actual service the completeness of which is determined upon receipt by the addressee of the registered mail and (2) constructive service the completeness of which is determined upon expiration of five days from the date the addressee received the first notice of the postmaster.
Proof of service. — x x x If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof of the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. (Emphasis supplied)There must be compliance with Section 13 of Rule 13 on proof of service by registered mail. As the Court ruled in Dela Cruz v. Dela Cruz:[38]
In the present case there is no proof of the actual receipt of the notice of the registered mail by counsel for the defendants, Atty. Belen. The trial court merely relied on the notations on the wrapper or envelope of the returned order of September 21, 1965 consisting of "R & S", "unclaimed" and the stamped box with the wordings "2nd notice" and "last notice" tending to indicate that the registered mail was returned to sender because it was unclaimed inspite of the notices sent by the postmaster to the addressee therein. The trial court, on the basis of said notations, assumed that the first notice of the postmaster must have been received by defendants on or before November 3, 1965, the date when the order in the envelope was returned to the Urdaneta Post Office. This finding of the court a quo is untenable.
In Barrameda vs. Castillo, this Court held:
Therefore, to obviate injustice, it is incumbent upon a party, who relies on constructive service or who contends that his adversary was served with a copy of a final order or judgment upon the expiration of five days from the first notice of registered mail sent by the postmaster to prove that the first notice was sent and delivered to the addressee. A certification from the postmaster would be the best evidence of that fact (Grafil vs. Feliciano, L-27156, June 30, 1967, 20 SCRA 616). The mailman's testimony may also be adduced to prove that fact, as was done in Aldecoa vs. Hon. Arellano and Siguenza, 113 Phil. 75, 78.
The postmaster's certification as to the sending of the first notice "should include the data not only as to whether or not the corresponding notices were issued or sent but also as to how, when and to whom the delivery thereof was made." (Hernandez vs. Navarro, L-28296, November 24, 1972, 48 SCRA 44, 64, per Barredo, J.).
As stressed by Justice Barredo in a recent case, "there must be clear proof of compliance with the postal regulations governing the sending and receipt of the notice referred to in" section 8 of Rule 13 (Vecino vs. Court of Appeals, L-38612, March 29, 1977). The mere exhibition in court of the envelope containing the unclaimed mail is not sufficient proof that a first notice was sent.Here, there is no postmaster's certification that the registered mail was unclaimed by Atty. Cruz, Anita's former counsel, and thus returned to sender after the first notice was sent to and actually received by him on a specified date. Absent such notice, the disputable presumption of completeness of service does not arise and by implication, petitioner could not presume actual receipt by Atty. Cruz.[39]
Note that in a certain case a first notice was sent but it was received by the addressee's eleven-year old child who did not deliver it to the addressee himself. It was held that to apply the presumption in that case and to insist on constructive service would work an injustice rather than promote justice (Cabuang vs. Hon. Bello, 105 Phil. 1135, 1138).
In the instant case, there is no evidence that the first notice was sent to Barrameda's lawyer and that it was delivered to him or should have been received by him. The envelope containing the unclaimed mail was presented in court. The face of the envelope contains the notation "Returned to sender. Reason: Unclaimed". Above the stamp, on the back of the envelope, with the legend "City of San Pablo, Philippines, Jan. 29, 1966", are written the dates, "2-3-66 and 2-9-66". Written also on the back of the envelope are the following: "R to S, notified 3/3/66".
Relying on those notations on the envelope, the trial court literally and rigidly applied the presumption as to constructive service. It did not require appellee Castillo to present the postmaster's certification that a first notice was sent to Barrameda's lawyer and that the notice was received by the latter.
Under those circumstances, the trial court's order dismissing Barrameda's appeal is fraught with injustice. (Emphasis supplied)
x x x xMoreover, jurisprudence teaches that when a party is represented by counsel, notice should be made upon the counsel of record at his given address to which notices of all kinds emanating from the court should be sent in the absence of a proper and adequate notice to the court of a change of address.[41]
For the purpose of computing the period of appeal, the same shall be counted from receipt of such decisions, awards or orders by the counsel/representative of record.