Paulino Ungos III

Lawyer | Law Professor | Author

Tag: notice

  • Only an Applicant; Not a Recruiter

    Recruitment and Placement

    The Labor Code of the Philippines1Under Article 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.”

    Illegal Recruitment

    On the other hand, the Labor Code of the Philippines2Under Article 38 defines illegal recruitment as

    “any recruitment activities, including the prohibited practices enumerated under Article 34, to be undertaken by non-licensees or non-holders of authority.”

    Illegal recruitment under the Labor Code of the Philippines3Article 38 encompasses recruitment activities for both local and overseas employment undertaken by non-licensees or non-holders of authority.

    Illegal recruitment is thus committed by persons who, without authority from the government, give the impression that they have the power to send workers abroad for employment purposes.

    Illegal Recruitment in Large Scale

    The crime of illegal recruitment in large scale is committed when the following elements concur:

    • the offender has no valid license or authority required by law to enable one to engage lawfully in recruitment and placement of workers;
    • he or she undertakes either any activity within the meaning of “recruitment and placement” defined under Article 13, paragraph b, or any prohibited practices enumerated under Article 34 of the Labor Code; and
    • that the accused commits the acts against three or more persons, individually or as a group.

    The Migrant Workers and Overseas Filipinos Act of 1995

    Notably, the Migrant Workers and Overseas Filipinos Act of 1995 broadened the concept of illegal recruitment under the Labor Code of the Philippines and provided stiffer penalties, especially for those that constitute economic sabotage, i.e., Illegal Recruitment Committed by a Syndicate and Illegal Recruitment in Large Scale.

    Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise, or scheme. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

    Part II of the Migrant Workers and Overseas Filipinos Act of 1995 defines and penalizes illegal recruitment for employment abroad, whether undertaken by a non-licensee or non-holder of authority or by a licensee or holder of authority.

    The situation in People v. Dela Cruz4G.R. No. 197808 (Notice), January 25, 2016. was that the complainants all positively identified the appellant as the person who:

    • promised them employment abroad;
    • explained the nature of their work and their corresponding salaries;
    • asked for documentary requirements such as resumés, photos, and medical certificates;
    • asked for their placement fees;
    • and either directly or ultimately received the placement fees they paid.

    Nonetheless, the appellant raised the defense that she was a mere applicant for overseas work at a travel agency, and not a recruiter.

    The Court was not convinced of said defense.

    It held that to prove illegal recruitment, it must be shown that the appellant gave complainants the distinct impression that she 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. The Court found the testimonies of these witnesses credible and convincing.

    It also noted that the appellant failed to present any evidence to substantiate her claim that she was recruited by the supposed owners of the agency as a domestic helper in Brunei. Record even showed that she signed some of the petty cash vouchers issued to the complainants. It thus ruled that the appellant’s mere denial failed over the positive and categorical testimonies of the complainants.

    Appellant was found guilty of committing illegal recruitment in large scale.

    Further reading:

    • People v. Dela Cruz, G.R. No. 197808 (Notice), January 25, 2016.

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  • Prove That An Employer-Employee Relationship Exists

    If you find yourself in a situation where the other party denies having an employer-employee relationship with you, make sure that you prove the following:

    • it had the power to select you to be an employee;
    • it paid your wages;
    • it had the power to dismiss you; and
    • it exercised control of the methods and results by which the your work is accomplished.

    In one case, the Supreme Court did not grant the claims of the complainants because they were not able to prove the existence of the mentioned elements. It said:


    “It must be recalled that when Belleza was the canteen concessionaire from 1993 to 1996, herein petitioners Daisog and Dimalanta were and continuously working thereat. When Catalan took over the management thereof in May 1997 they also continued their employment thereat.

    “However, when private respondent Ma. Theresa Ayuson took over the canteen management on April 29, 1999, she offered to Daisog and Dimalanta to continue working under her new management but the latter refused and they did not accept the separation pay being offered to them.

    “Based on the foregoing factual backdrop, it could be deduced that petitioners Daisog and Dimalanta’s employers if at all were Belleza and Catalan and not herein private respondent Ma. Theresa Ayuson.

    “However, Belleza and Catalan could not be held liable since they were not impleaded to the complaint. Neither was there evidence which directly established that petitioners Daisog and Dimalanta were employees of private respondent Cainta Coliseum which is managed by co-private respondent Ken K.C. Yu. Likewise, the record is bereft of any evidence which showed that private respondents Cainta Coliseum and/or Ken K.C. Yu and Maria Theresa Ayuson were the one who hired petitioners Daisog and Dimalanta; neither did it prove that private respondents have the power to control the conduct of petitioners. As also found out by public respondent which read:


    “‘Contrary to the allegation of complainants, the alleged payrolls do not bear the name of respondent Kenneth Yu, their alleged employer. Respondents denied that there was a signature of Kenneth Yu on the supposed payrolls. What is established in the records is that complainants are employees of canteen concessionaires operating in the respondent coliseum.’ x x x

    x x x

    “Admittedly petitioners Daisog and Dimalanta miserably failed to show by convincing evidence that there exists an employer-employee relationship between them and private respondents.”

    (Emphasis, mine.)

    Further reading:

    • Carmelita V. Dimalanta and Arturo C. Daisog v. Caita Coliseum, Inc. Ken K.C. Yu, Owner/President/General Manager, and Maria Theresa Ayuson as responsible officers, and National Labor Relations Commission, G.R. No. 161058, July 30, 2014.

  • Leaving Your Post and Serious Misconduct or Willful Disobedience

    An employee asked permission to leave the office so that she could pay her due car loan amortization and avoid incurring a penalty for late payment. Even though her employer refused, she still left the office to pursue her errand. Her employment was terminated as a result.

    Here, the Supreme Court took her side because the employer failed to establish that her act was sufficient to justify the dismissal. There was a further finding that the employer failed to observe due process in the said dismissal.

    In this case, the employer argued that she defied the orders disallowing her from leaving the office early. It then concluded that her act constituted serious misconduct and willful breach of the trust reposed in her. The Court, however, did not agree:

    • The employee left for good reason. Due to the urgency of the situation, her act of leaving the office to pay her loan could not have been a serious misconduct on her part.
    • Her leaving the office was found to be a mere isolated act. Thus, it can hardly be be considered as willful defiance.
    • Although the employer alleged that she disrespected or manifested unpleasant behavior upon learning of the disapproval, the same was uncorroborated. Thus, it was not able to show that the breach of trust reposed upon her was willful or done intentionally, knowingly and purposely, without justifiable excuse.

    Thoughts:

    The case was silent on the nature of the work activities during that day. Had it been a day so busy that all hands should be on deck, the result, I reckon, would have been different.

    Also, had the unpleasant behavior been sufficiently proved, then the case would have had a different outcome.

    Finally, what if, on top of the earlier factors, the twin notice requirements were met?

    In other words, the case did not provide that all instances of employees leaving their posts would merit a favorable decision. Certain circumstances could be present, and they could add a significant dynamic in (or against) the employees’ favor in the case.

    Further reading:

    • Micah Motor, Inc, Florentino Querol and John Hernandez v. Janneth B. Tenorio, G.R. No. 190774, July 9, 2014.