Paulino Ungos III

Lawyer | Law Professor | Author

Tag: notice

  • Effects of Withdrawal of Complaint/Desistance

    During a disciplinary investigation of a recruitment violation, the recruiter posited that it should not be held liable for sickness allowance in view of the seafarer’s Affidavit of Desistance.

    In Interorient Maritime Enterprises, Inc. v. Valencia, Jr.,1G.R. No. 241621, January 7, 2019 the Supreme Court disagreed:

    Petitioner cannot escape liability on the strength of the Affidavit of Desistance executed by respondent. Suffice it to state that such act of desistance on the part of respondent will not bar the [Philippine Overseas Employment Administration] from proceeding with the case against petitioner x x x under relevant rules x x x.2Section 164, Rule V, Part VI of the Revised POEA Rules and Regulations Governing the Recruitment and Employment of Landbased Overseas Filipino Workers of 2016 states: “SECTION 164. Effects of Withdrawal of Complaint/Desistance. — The withdrawal of complaint/desistance shall not bar the Administration from proceeding with the investigation of the recruitment violation. The Administration shall resolve the case on the merits, if there is evidence warranting the imposition of appropriate penalties.”<br/>

    Section 148, Rule V, Part VII, of the 2016 Revised POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers states: SECTION 148. Effects of Withdrawal of Complaint/Desistance. — The withdrawal of complaint/desistance shall not bar the Administration from proceeding with the investigation of the recruitment violation. The Administration shall resolve the case on the merits, if there is evidence warranting the imposition of appropriate penalties.

    Related Discussion on Sickness Allowance:

    Section 20 of the Amended Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-Board Ocean-Going Ships3POEA Memorandum Circular No. 010, Series of 2010 provides:

    SECTION 20. Compensation and Benefits. —

    A. Compensation and Benefits for Injury or Illness

    The liabilities of the employer when the seafarer suffers work-related injury or illness during the term of his contract are as follows: x x x

    3. In addition to the above obligation of the employer to provide medical attention, the seafarer shall also receive sickness allowance from his employer in an amount equivalent to his basic wage computed from the time he signed off until he is declared fit to work or the degree of disability has been assessed by the company-designated physician. The period within which the seafarer shall be entitled to his sickness allowance shall not exceed 120 days. Payment of the sickness allowance shall be made on a regular basis, but not less than once a month.

    The grant of sickness allowance is to afford a remedy to a seafarer during the period of his treatment as his inability to perform his sea duties would normally result in depriving him of compensation income.

    Further Reading:

    • Interorient Maritime Enterprises, Inc. v. Valencia, Jr., G.R. No. 241621, January 7, 2019.

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  • Factual Findings of Quasi-judicial Bodies

    Factual findings of quasi-judicial bodies like the National Labor Relations Commission, if supported by substantial evidence, are accorded respect and even finality, more so when they coincide with those of the Office of the Labor Arbiter. Such factual findings are given more weight when the same are affirmed by the Court of Appeals.

    Further Reading:

    • Toyota Pasong Tamo, Inc. v. Capitle, G.R. No. 242054, January 7, 2019.

  • Unsigned Probationary Employment Contracts

    The Supreme Court declared the employees as regular employees of Concentrix Daksh Services Philippines Corp. because their probationary employment contracts were unsigned and since the employer failed to explain to them the standards for regularization. The Court said:

    As correctly ruled by the CA, Concentrix failed to sufficiently prove that respondents were apprised of the reasonable standards set for their regularization at the time of their engagement; and more importantly, show how these standards were applied in respondents’ case. Notably, while Concentrix presented copies of respondents’ employment contracts which state, albeit generally, the expected areas for evaluation (e.g., communication skills, knowledge, skills application, attendance and tardiness, etc.), the same appear to be unsigned. At any rate, no proof was presented to convincingly show that the regularization standards, supposedly contained in the employment contracts, were adequately explained to them. As such, respondents were regular employees whose dismissal, absent a valid cause, was illegal.

    Further Reading:

    • Concentrix Daksh Services Philippines Corp. v. Palacio, G.R. No. 242673, January 7, 2019.

  • Concealment of Previous “Phlectenille, Right Eye”

    The seafarer was found to have concealed his previous illness: phlectenille, right eye. Nonetheless, this did not bar his disability claim for his present lower back injury.

    In TCM Tsakos Maritime Philippines, Inc.,1G.R. No. 241102, January 7, 2019. the Court ruled:

    [The seafarer’s] concealment of his previous illness and repatriation, as well as his receipt of corresponding disability benefits therefor, cannot bar his present claim because his previous illness, phlectenille, right eye, was not shown to be related in any way to his present illness of lower back injury.2Emphasis supplied.

    This Court had indeed disallowed the payment of disability benefits to seafarers in the past due to concealment or fraudulent misrepresentation. However, a review of these cases reveals that the prior injury or illness concealed by the seafarer was shown to be related to the injury or illness which was the subject of the seafarer’s pending claim.

    Further Reading:

    • TCM Tsakos Maritime Philippines, Inc. v. Calimpong, G.R. No. 241102, January 7, 2019.

  • Company-designated Physician’s Failure to Arrive at a Final Assessment of the Seafarer’s Fitness to Work

    In Teekay Shipping Philippines, Inc. v. Mateo,1G.R. No. 243258, January 7, 2019. the Supreme Court reiterated the effect should the company-designated physician fail to issue a final assessment of the seafarer’s fitness to work within the 120/240-day period from medical repatriation. The Court ruled:

    As correctly ruled by the CA, respondent’s work-related injury is deemed total and permanent by operation of law when the company-designated physician failed to arrive at a final assessment of respondent’s fitness to work within the 120/240-day treatment period following his repatriation on November 25, 2015. Moreover, the company-designated physician’s issuance of an Interim Disability Grade 11 is a mere initial determination of petitioner’s condition for the time being and therefore cannot be considered as a definite prognosis. Hence, the award of US$89,100.00 to respondent pursuant to the Collective Bargaining Agreement of the Philippine Seafarers Union, which covered respondent’s employment contract, must be sustained. In this regard, the CA cannot be faulted in sustaining the award of attorney’s fees as respondent was clearly compelled to litigate to protect his interest.

    Further Reading:

    • Teekay Shipping Philippines, Inc. v. Mateo, G.R. No. 243258, January 7, 2019.

  • Proper Recourse to Assail the Decisions or Orders of the Secretary of the Department of Labor and Employment

    In Augustin International Center, Inc. v. Zacarias,1G.R. No. 242043, January 7, 2019 the Supreme Court reiterated that a petition for certiorari (under Rule 65 of the Rules of Court) should be filed to assail the decisions or orders of the Secretary of the Department of Labor and Employment. According to the Court, “[s]uch petition for certiorari must be seasonably filed with the Court of Appeals within 60 days from the notice of the order denying one’s motion for reconsideration.”

    Side Note:

    Distinguish remedy in connection with the Secretary’s exercise of assumption powers vis-à-vis remedy relating to Secretary’s decision as a voluntary arbitrator.

    Further Reading:

    • Augustin International Center, Inc. v. Zacarias, G.R. No. 242043, January 7, 2019.

  • Extent of the Awards of Backwages and Separation Pay

    The workers of the Continuous Galvanizing Line department of the Philippine Steel Coating Corp. asserted that the awards of backwages and separation pay should not have been limited to the closure of the said department, but should have included the closure of Philippine Steel Coating Corporation’s entire business.

    The Supreme Court disagreed based on the principle that “an illegally dismissed employee’s entitlement to backwages and separation pay should be computed only up to the time that the said employee would have been expected to work with his/her employer had he/she not been illegally dismissed.” The Court said:

    In any event, petitioner’s claim that the judgment award should include the period after the closure of the Continuous Galvanizing Line (CGL) department until the closure of respondent Philippine Steel Coating Corporation’s (PhilSteel) entire business, lacks merit.

    It should be noted that petitioner never questioned the validity of the closure of PhilSteel’s CGL department. It only insists that the closure of the CGL department does not affect the computation of the period for the purpose of determining the retrenched employees’ monetary award because PhilSteel continued to operate until May 8, 2013.

    Petitioner should be reminded that an illegally dismissed employee’s entitlement to backwages and separation pay should be computed only up to the time that the said employee would have been expected to work with his/her employer had he/she not been illegally dismissed. Given that the validity of the CGL department’s closure is not disputed, the ten (10) retrenched employees assigned to the CGL department could not have been presumed to continue working for PhilSteel despite the valid closure of PhilSteel’s CGL department. There is nothing in the petition to show that the retrenched employees’ employments were not dependent on the operation of the CGL department in order to justify their claim of entitlement to backwages and separation pay until PhilSteel’s total closure on May 8, 2013. On the contrary, the retrenched employees were specifically referred to as “workers of the CGL line,” thereby showing that their employment was contingent on the existence of the CGL department. As such, the backwages and separation pay were properly computed only until the closure of the CGL department, or until August 2, 2012.

    Further Reading:

    • PhilSteel Workers Union-Olalia-KMU v. Philippine Steel Coating Corp., G.R. No. 241897, January 7, 2019.

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  • Starting the Third Doctor Referral Process

    Section 20 (A) (3) of the Amended Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-Board Ocean-Going Ships,1Philippine Overseas Employment Administration Memorandum Circular No. 10, Series of 2010 provides that [i]f a doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed jointly between the Employer and the seafarer. The third doctor’s decision shall be final and binding on both parties.

    Who should initiate the third doctor referral process?

    In Placio v. Bahia Shipping Service, Inc.,2G.R. No. 241926, January 7, 2019 the Supreme Court ruled that the seafarer should initiate such process. The Court said:

    Petitioner “was bound to initiate the process of referring the findings to a third-party physician by informing his employer of the same, which is mandatory considering that the POEA-SEC is part and parcel of the employment contract between seafarers and their employers.”3Magsaysay Mitsui Osk Marine, Inc. v. Buenaventura, G.R. No. 195878, January 10, 2018. Due to petitioner’s failure to abide by the procedure, the Court of Appeals gave more weight to the findings of the company-designated physician and correctly dismissed the complaint.

    Further Reading:

    • Placio v. Bahia Shipping Service, Inc., G.R. No. 241926, January 7, 2019.

  • Presenting Unsubstantiated Documents to Prove Unpaid Commissions

    The employee claimed entitlement to Php802,372.28 in unpaid commissions. In support of this claim, she attached certain self-prepared, albeit “meticulously detailed,” documents to her pleading. Should this claim be granted?

    In Siroy v. Rudolf Lietz, Inc.,1G.R. No. 204013 (Notice), January 7, 2019 the Supreme Court denied the claim. According to the Court:

    Siroy’s computation of unpaid commissions appears to be self-serving as the supporting documents she attached were all prepared by her. Inasmuch as her computation can easily be concocted or fabricated to suit her personal interest and purpose, Siroy’s bare claim that she is entitled to unpaid commissions by simply presenting unsubstantiated documents will not win her judicial approval.

    Further Reading:

    • Siroy v. Rudolf Lietz, Inc., G.R. No. 204013, January 7, 2019.

  • We Can’t. There is No Order of Restitution Yet.

    The seafarer in this case had earlier obtained a favorable judgment from the Office of the Labor Arbiter. The National Labor Relations Commission denied the employers’ appeal. This decision of the Commission became final and a corresponding writ of execution was thereafter issued. The employers paid the judgment award consisting of the seafarer’s permanent and total disability benefits.

    Later, the Court of Appeals reversed the rulings of the Office of the Labor Arbiter and the Commission and decided that the seafarer was not entitled to permanent and total disability benefits.

    The seafarer filed a petition to the Supreme Court to assail the decision of the Court of Appeals. The Supreme Court denied the seafarer’s petition. The Supreme Court’s resolution soon became final.

    The employers then filed a motion for issuance of a writ of execution before the Office of the Labor Arbiter seeking the restitution of the judgment award paid to the seafarer.

    The said office issued an order denying employers’ motion for issuance of a writ of execution because the same was prematurely filed. Relying on the provisions of the 2011 NLRC Rules of Procedure, as amended, the said office stated that the employers failed to show that the Court of Appeals had ordered restitution in its decision.

    The employers filed a petition at the National Labor Relations Commission seeking to annul the order of the Office of the Labor Arbiter and execute the Court of Appeals decision.

    The National Labor Relations Commission denied the employers’ petition. According to the Commission, its 2011 NLRC Rules of Procedure, as amended, specifically Section 18 of Rule XI, expressly required that either the Court of Appeals or the Supreme Court must first order restitution before the same could be carried out by the Office of the Labor Arbiter. Since the decision of the Court of Appeals was silent on the propriety of restitution of the judgment, the Commission concluded that it could not grant the employers’ motion.

    Is a higher court’s separate order of restitution or reparation of damages a conditio sine qua non before the Office of the Labor Arbiter could proceed with execution of the same?

    No.

    Order to Restitute Was Necessarily Included in Court of Appeals Decision

    A judgment is not confined to what appears on the face of the decision, but extends as well to those necessarily included therein or necessary thereto. The execution is consequently extended to those matters necessarily included in the judgment.

    In this case, the Decision of the Court of Appeals clearly found that the seafarer was not entitled to the permanent disability benefits awarded. As noted above, said Decision of the Court of Appeals was upheld by the Supreme Court.

    The Supreme Court ruled that the Office of the Labor Arbiter and the National Labor Relations Commission should have determined the true intent and meaning of the Decision of the Court of Appeals, in that the said Decision should have been considered in its entirety. Thus, when the Court of Appeals declared that the disability award to seafarer was invalid, necessarily, the judgment award earlier paid by the employers should have been restituted to them.

    No Supplemental Decision or Separate Order of Restitution Needed

    For context, the rule relied upon by the Office of the Labor Arbiter and the National Labor Relations Commission was Section 18, Rule XI of the 2011 NLRC Rules of Procedure, as amended, which provides:

    “SECTION 18. Restitution. — Where the executed judgment is totally or partially reversed or annulled by the Court of Appeals or the Supreme Court with finality and restitution is so ordered, the Labor Arbiter shall, on motion, issue such order of restitution of the executed award, except reinstatement wages paid pending appeal.”

    After analyzing the said provision, the Supreme Court ruled that the same never required a separate restitution order before actual restitution can take effect.

    First, the phrase “where the executed judgment is totally or partially reversed or annulled by the Court of Appeals or the Supreme Court with finality and restitution is so ordered” did not direct it and the Court of Appeals to include an order of restitution in their judgment, or otherwise restitution shall not take effect.

    Second, the Supreme Court added that it, as well as the Court of Appeals, is not bound by the procedural rules of an administrative tribunal. Once the higher courts have rendered a decision, the lower tribunals have no choice but to execute the same.

    Finally, the Supreme Court noted that the interpretation advanced by the Office of the Labor Arbiter and the National Labor Relations Commission was manifestly prejudicial to the victorious litigant. The Court said:

    “It commands that the party must first secure an order of restitution in the higher courts before there can be a recovery of payment which, to begin with, was improper. There is no assurance that the party could definitely secure the required order of restitution in due time. The winning party will be left at the mercy of the labor tribunals, while the defeated party conveniently sits on top of another man’s earnings. The substantive right of a party to enjoy the fruits of a favorable judgment will be negated by a mere procedural technicality.”

    In sum, the decision of the Supreme Court or the Court of Appeals reversing the executed judgment in this case had attained finality. The Office of the Labor Arbiter should have ordered the restitution of the executed award.

    Further reading:

    • Cabalo v. Net Ship Management, Inc., G.R. No. 212429 (Notice), January 27, 2016.

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