an able-bodied seaman by Meritt Shipping, through its local agent, Ace Maritime Services (agency), in accordance with the 2000Philippine Overseas Employment Administration Standard Employment Contract (2000 POEA-SEC). Cesar's employment was also covered by a CBA between the union, AMOSl.JP, and Meritt Shipping. Both the 2000 POEA-SEC and the CBA commonly provide the same mode and procedures for claiming disability benefits. Cesar's last contract (for nine months) expired on July 15, 2013.
Cesar disembarked from the vessel M/V Seven Seas on July 16, 2013as a seaman on "finished contract". He immediately reported to the agency and complained that he had been experiencing spells of dizziness, nausea, general weakness, and difficulty in breathing. The agency referred him to Dr. Sales, a cardio-pulmonary specialist, who examined and treated him; advised him to take a complete rest for a while; gave him medications; and declared him fit to resume work as a seaman.
After a month, Cesar went back to the agency to ask for re-deployment. The agency rejected his application. Cesar responded by demanding total disability benefits based on the ailments that he developed and suffered while on board Meritt Shipping vessels. The claim was based on the certification of his physician (internist Dr.
Reyes) that he could no longer undertake sea duties because of the hypertension and diabetes that afflicted him while serving on Meritt Shipping vessels in the last 10 years. Rejected once again, Cesar filed a complaint for illegal dismissal and the payment of total permanent disability benefits against the agency and its principal.
QUESTION: Assume that you are the Labor Arbiter deciding the case. Identify the facts and issues you would consider material in resolving the illegal dismissal and disability complaint. Explain your choices and their materiality, and resolve the case.
(8%) ANSWER:
1. Did Cesar submit to a post-employment examination within 3 days upon his return? This is a mandatory requirement; otherwise, Cesar will forfeit his right to claim benefits.
2, Is Dr. Sales the company-designated physician? The company-designated physician is the one who initially determines compensability.
3. Was Cesar assessed by Dr. Sales (if he is the company physician) within 120 days?
4. If the 120 days was exceeded and no declaration was made as to Cesar‘s disability, was this extended to 240 days because Cesar required further medical treatment?
5. Was the 240 days exceeded and still no final decision was reached as to Cesar‘s disability? If so, Cesar is deemed entitled to permanent total disability benefits.
6. If the company‘s physician and Cesar‘s physician cannot agree, was a third physician designated to determine the nature and extent of the disability. The third physician‘s finding under the law is final and conclusive.
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7. In the matter of the complaint of illegal dismissal: There is none because Cesar disembarked on ―finished contract‖.
8. Seafarers are contractual employees, for a fixed term, governed by the contract they sign; an exception to Article 80 of the Labor Code. Hence, the complaint for illegal dismissal will not prosper.
5.
RECRUITMENT AND PLACEMENT
5.1 DISTINCTION BETWEEN LICENSE AND AUTHORITY:
LICENSE means a document issued by the Department of Labor, authorizing a person or entity to operate a private employment agency.
AUTHORITY means a document issued by the Department of Labor, authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity.
5.2 DISTINCTION BETWEEN ―PRIVATE EMPLOYMENT AGENCY‖ VS.
―PRIVATE RECRUITMENT AGENCY‖ VS. ―SHIPPING OR MANNING AGENCY‖
PRIVATE EMPLOYMENT AGENCY: Refers to any person or entity engaged in the recruitment and placement of workers FOR A FEE, which is charged directly or indirectly, from the workers, or employers, or both.
A licensed employment agency may charge and collect fees for employment assistance if the worker has obtained employment through the agency's efforts.
PRIVATE RECRUITMENT AGENCY: Refers to any person or entity engaged in the recruitment and placement of workers, locally or overseas, WITHOUT CHARGING ANY FEE directly or indirectly, from the workers, or employers.
Submission by Private Recruitment agency of a VERIFIED UNDERTAKING to the POEA that it will assume JOINT AND SOLIDARY LIABILITY with the employer for all claims and liabilities which might arise in connection with the implementation of employment
MANNING OR SHIPPING AGENCY: Refers to any person, partnership or corporation duly licensed by DOLE to recruit seafarers for vessels plying international waters and for related maritime actvities.
5.3 TYPES OF ILLEGAL RECRUITMENT
SIMPLE (BY LICENSEE): illegal recruitment committed by a licensee or holder of authority against one or two persons only if they commit any of the acts enumerated under Section 6 of Republic Act No. 8042.
NON-LICENSEE: committed by a person who has neither a license nor authority.
SYNDICATED: that carried out by a group of three (3) or more persons in conspiracy or confederation with one another.
LARGE SCALE or qualified: that committed against 3 or more persons, individually or as a group.
5.4 ILLEGAL RECRUITMENT AS ECONOMIC SABOTAGE, if any of the qualifying circumstances exist or when committed:
BY A SYNDICATE – If it is carried out by a group of 3 or more persons conspiring and/or confederating with one another;
IN LARGE SCALE – If it is committed against 3 or more persons individually or as a group.
5.5 ILLEGAL RECRUITMENT
; elements: People of the Philippines vs.Teresita ―Tessie‖ Laogo, G.R. No. 176264, 10 January 2011.
Recruitment and placement refers to the 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. When a person or entity, in any manner, offers or promises for a fee employment to two or more persons, that person or entity shall be deemed engaged in recruitment and placement.
Article 38(a) of the Labor Code, as amended, specifies that recruitment activities undertaken by non-licensees or non-holders of authority are deemed illegal and punishable by law.
And when the illegal recruitment is committed against three or more persons, individually or as a group, then it is deemed committed in large scale and carries with it stiffer penalties as the same is deemed a form of economic sabotage.
But to prove illegal recruitment, it must be shown that the accused, without being duly authorized by law, gave complainants the distinct impression that he had the power or ability to send them abroad for work, such that the latter were convinced to part with their money in order to be employed. It is important that there must at least be a promise or offer of an employment from the person posing as a recruiter, whether locally or abroad.
5.6 Illegal recruitment as distinguished from estafa
A person convicted for illegal recruitment under Labor Code can be convicted for violation of the Revised Penal Code provisions on estafa provided the elements of the crime are present.
Estafa under Article 315, par.2 of the RPC is committed by any person who defrauds another by using fictitious name, or falsely pretends to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of similar deceits executed prior to or simultaneously with the commission of the fraud.
The offended party must have relied on the false pretense, fraudulent act or fraudulent means of the accused-appellant and as a result thereof, the offended party suffered damages.
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5.7 Persons criminally liable for the above offenses: [R.A. 10022, Sec.4]
Individuals: principals, accomplices and accessories.
Juridical Persons: the officers having ownership, control, management or direction of their business that are responsible for the commission of the offense and the responsible employees/agents thereof shall be liable.
Where illegal recruitment is proved but the elements of ―large scale‖ or
―syndicate‖ are absent, the accused can be convicted only of ―simple illegal recruitment‖. (People v. Sagun, G.R. No. 110554, 19 February 1999)
5.8 Nature of liability of local recruitment agency vs. foreign principal:
Local Agency is solidarily liable with foreign principal.
Severance of relations between local agent and foreign principal does not affect liability of local recruiter.
5.9 IMPORTANT PERALTA CASE: BRIGHT MARITIME CORPORATION VS.
FANTONIAL, G.R. No. 165935, 08 February 2012
Contract of Employment was executed by petitioner Bright Maritime Corporation (BMC) and respondent Ricardo B. Fantonial, which contract was verified and approved by the Philippine Overseas Employment Administration (POEA) on January 17, 2000. The employment contract provided that respondent shall be employed as boatswain of the foreign vessel M/V AUK for one year, with a basic monthly salary of US$450, plus an allowance of US$220. Respondent was made to undergo a medical examination and was issued a Medical Certificate dated January 17, 2000, which certificate had the phrase ―FIT TO WORK‖ stamped on its lower and upper portion. However, he was never deployed because the company said he was not fit to work.
Question: Was the contract of employment perfected?
Answer: YES.