LABOR LAW CASES (1-8)

8/12/2019 LABOR LAW CASES (1-8)

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CASE NO. 1

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. L-32245 May 25, 1979

DY KEH BENG, petitioner,vs.INTERNATIONAL LABOR and MARINE UNION OF THE PHILIPPINES, ET AL., respondents.

A. M Sikat for petitioner.

D. A. Hernandez for respondents.

DE CASTRO, J .:

Petitioner Dy Keh Beng seeks a review by certiorari of the decision of the Court of IndustrialRelations dated March 23, 1970 in Case No. 3019-ULP and the Court's Resolution en banc of June10, 1970 affirming said decision. The Court of Industrial Relations in that case found Dy Keh Bengguilty of the unfair labor practice acts alleged and order him to

reinstate Carlos Solano and Ricardo Tudla to their former jobs with backwages fromtheir respective dates of dismissal until fully reinstated without loss to their right ofseniority and of such other rights already acquired by them and/or allowed by law. 1

Now, Dy Keh Beng assigns the following errors 2 as having been committed by the Court of IndustrialRelations:

I

RESPONDENT COURT ERRED IN FINDING THAT RESPONDENTS SOLANO AND TUDLA WERE EMPLOYEES OF PETITIONERS.

II

RESPONDENT COURT ERRED IN FINDING THAT RESPONDENTS SOLANO AND TUDLA WERE DISMISSED FROM THEIR EMPLOYMENT BY PETITIONER.

III

RESPONDENT COURT ERRED IN FINDING THAT THE TESTIMONIES ADDUCEDBY COMPLAINANT ARE CONVINCING AND DISCLOSES (SIC) A PATTERN OFDISCRIMINATION BY THE PETITIONER HEREIN.



IV

RESPONDENT COURT ERRED IN DECLARING PETITIONER GUILTY OFUNFAIR LABOR PRACTICE ACTS AS ALLEGED AND DESCRIBED IN THECOMPLAINT.

V

RESPONDENT COURT ERRED IN PETITIONER TO REINSTATE RESPONDENTSTO THEIR FORMER JOBS WITH BACKWAGES FROM THEIR RESPECTIVEDATES OF DISMISSALS UNTIL FINALLY REINSTATED WITHOUT LOSS TOTHEIR RIGHT OF SENIORITY AND OF SUCH OTHER RIGHTS ALREADY

ACQUIRED BY THEM AND/OR ALLOWED BY LAW.

The facts as found by the Hearing Examiner are as follows:

A charge of unfair labor practice was filed against Dy Keh Beng, proprietor of a basket factory, fordiscriminatory acts within the meaning of Section 4(a), sub-paragraph (1) and (4). Republic Act No.

875,3

by dismissing on September 28 and 29, 1960, respectively, Carlos N. Solano and Ricardo Tudlafor their union activities. After preliminary investigation was conducted, a case was filed in the Court ofIndustrial Relations for in behalf of the International Labor and Marine Union of the Philippines and two ofits members, Solano and Tudla In his answer, Dy Keh Beng contended that he did not know Tudla andthat Solano was not his employee because the latter came to the establishment only when there waswork which he did on pakiaw basis, each piece of work being done under a separate contract. Moreover,Dy Keh Beng countered with a special defense of simple extortion committed by the head of the laborunion, Bienvenido Onayan.

After trial, the Hearing Examiner prepared a report which was subsequently adopted in toto by theCourt of Industrial Relations. An employee-employer relationship was found to have existed betweenDy Keh Beng and complainants Tudla and Solano, although Solano was admitted to have worked onpiece basis. 4 The issue therefore centered on whether there existed an employee employer relationbetween petitioner Dy Keh Beng and the respondents Solano and Tudla .

According to the Hearing Examiner, the evidence for the complainant Union tended to show thatSolano and Tudla became employees of Dy Keh Beng from May 2, 1953 and July 15,1955, 5 respectively, and that except in the event of illness, their work with the establishment wascontinuous although their services were compensated on piece basis. Evidence likewise showed that attimes the establishment had eight (8) workers and never less than five (5); including the complainants,and that complainants used to receive ?5.00 a day. sometimes less. 6

According to Dy Keh Beng, however, Solano was not his employee for the following reasons:

(1) Solano never stayed long enought at Dy's establishment;

(2) Solano had to leave as soon as he was through with the

(3) order given him by Dy;

(4) When there were no orders needing his services there was nothing for him to do;

(5) When orders came to the shop that his regular workers could not fill it was thenthat Dy went to his address in Caloocan and fetched him for these orders; and



(6) Solano's work with Dy's establishment was not continuous. , 7

According to petitioner, these facts show that respondents Solano and Tudla are only piece workers,not employees under Republic Act 875, where an employee 8 is referred to as

shall include any employee and shag not be limited to the employee of a particularemployer unless the Act explicitly states otherwise and shall include any individualwhose work has ceased as a consequence of, or in connection with any current labordispute or because of any unfair labor practice and who has not obtained any othersubstantially equivalent and regular employment.

while an employer 9

includes any person acting in the interest of an employer, directly or indirectly butshall not include any labor organization (otherwise than when acting as an employer)or anyone acting in the capacity of officer or agent of such labor organization.

Petitioner really anchors his contention of the non-existence of employee-employer relationship on

the control test. He points to the case of Madrigal Shipping Co., Inc. v. Nieves Baens del Rosario, etal. , L-13130, October 31, 1959, where the Court ruled that:

The test ... of the existence of employee and employer relationship is whether thereis an understanding between the parties that one is to render personal services to orfor the benefit of the other and recognition by them of the right of one to order andcontrol the other in the performance of the work and to direct the manner and methodof its performance.

Petitioner contends that the private respondents "did not meet the control test in the fight of the ...definition of the terms employer and employee, because there was no evidence to show thatpetitioner had the right to direct the manner and method of respondent's work. 10 Moreover, it is

argued that petitioner's evidence showed that "Solano worked on a pakiaw basis" and that he stayed inthe establishment only when there was work.

While this Court upholds the control test 11 under which an employer-employee relationship exists"where the person for whom the services are performed reserves a right to control not only the end to beachieved but also the means to be used in reaching such end, " it finds no merit with petitioner'sarguments as stated above. It should be borne in mind that the control test calls merely for the existenceof the right to control the manner of doing the work, not the actual exercise of the right. 12 Considering thefinding by the Hearing Examiner that the establishment of Dy Keh Beng is "engaged in the manufacture ofbaskets known as kaing , 13 it is natural to expect that those working under Dy would have to observe,among others, Dy's requirements of size and quality of the kaing . Some control would necessarily beexercised by Dy as the making of the kaing would be subject to Dy's specifications. Parenthetically, sincethe work on the baskets is done at Dy's establishments, it can be inferred that the proprietor Dy could

easily exercise control on the men he employed. As to the contention that Solano was not an employee because he worked on piece basis, this Courtagrees with the Hearing Examiner that

circumstances must be construed to determine indeed if payment by the piece is justa method of compensation and does not define the essence of the relation. Units oftime ... and units of work are in establishments like respondent (sic) just yardstickswhereby to determine rate of compensation, to be applied whenever agreed upon.



We cannot construe payment by the piece where work is done in such anestablishment so as to put the worker completely at liberty to turn him out and take inanother at pleasure.

At this juncture, it is worthy to note that Justice Perfecto, concurring with Chief Justice Ricardo Paraswho penned the decision in " Sunrise Coconut Products Co. v. Court of Industrial Relations " (83

Phil..518, 523), opined that

judicial notice of the fact that the so-called "pakyaw" system mentioned in this caseas generally practiced in our country, is, in fact, a labor contract -between employersand employees, between capitalists and laborers.

Insofar as the other assignments of errors are concerned, there is no showing that the Court ofIndustrial Relations abused its discretion when it concluded that the findings of fact made by theHearing Examiner were supported by evidence on the record. Section 6, Republic Act 875 providesthat in unfair labor practice cases, the factual findings of the Court of Industrial Relations areconclusive on the Supreme Court, if supported by substantial evidence. This provision has been putinto effect in a long line of decisions where the Supreme Court did not reverse the findings of fact of

the Court of Industrial Relations when they were supported by substantial evidence.14

Nevertheless, considering that about eighteen (18) years have already elapsed from the time thecomplainants were dismissed, 15 and that the decision being appealed ordered the payment ofbackwages to the employees from their respective dates of dismissal until finally reinstated, it is fitting toapply in this connection the formula for backwages worked out by Justice Claudio Teehankee in "casesnot terminated sooner." 16 The formula cans for fixing the award of backwages without qualification anddeduction to three years, "subject to deduction where there are mitigating circumstances in favor of theemployer but subject to increase by way of exemplary damages where there are aggravatingcircumstances. 17 Considering there are no such circumstances in this case, there is no reason why theCourt should not apply the abovementioned formula in this instance.

WHEREFORE; the award of backwages granted by the Court of Industrial Relations is herein

modified to an award of backwages for three years without qualification and deduction at therespective rates of compensation the employees concerned were receiving at the time of dismissal.The execution of this award is entrusted to the National Labor Relations Commission. Costs againstpetitioner.

SO ORDERED.

Teehankee, Makasiar, Guerrero, and Melencio-Herrera, JJ., concur.

Fernandez, J., took no part.





In a decision dated September 26, 1977, Labor Arbiter Modesto R. Rosales rendered judgmentholding that respondent Encarnacion was the employee of respondent Gersher Engineering Worksand not of petitioner Petrophil Corporation; that respondent Encarnacion was not illegally dismissed;but that he is entitled to receive from respondent Gersher the 13th month pay of P340.00 coveringthe year from March 15, 1976 to March 26, 1977 and the emergency monthly living allowance ofP100.00 for the same period. The claim for holiday and vacation leave pay was dismissed for

insufficiency of evidence. The judgment further ordered respondent Gersher to accept respondentEncarnacion back to work to be assigned as helper in any of its contractual jobs (except PetrophilCorporation) with the same salary and without loss of seniority and other benefits appurtenant to hisposition. Respondent Encarnacion was also ordered to report and present himself for work withrespondent Gersher within five (5) days from notice, otherwise he would be considered to haveabandoned his work. The case against Petrophil Corporation was dismissed.

Respondent Encarnacion appealed the decision to respondent National Labor RelationsCommission Respondent Gersher did not appeal from the said decision, neither did it file an answerto Encarnacion's appeal.

On January 25, 1985, the National Labor Relations Commission rendered judgment modifying thedecision of the Labor Arbiter and holding that Encarnacion was the employee of PetrophilCorporation and not of respondent Gersher and that he had been illegally dismissed. The dispositiveportion of the decision of the respondent Commission reads-

WHEREFORE, respondent Petrophil is hereby ordered to:

1. Immediately reinstate the complainant in his former position without loss ofseniority rights and privileges, with fixed backwages equivalent to three years,without qualification or deduction; and

2. Pay the complainant emergency cost-of-living allowances and 13th month payboth covering the period corresponding to backwages.

Hence, the instant petition which We find to be meritorious.

On the first issue raised, We agree with the findings of the Labor Arbiter that respondentEncarnacion was the employee of respondent Gersher and not petitioner Petrophil Corporation. Thisfact was admitted by no less than Gersher in its position paper which it filed with the Labor RelationsDivision of the then Department of Labor. Thus, in the said position paper, respondent Gersherstates —

2. That the complainant started work with respondent Gersher EngineeringWork sometime on or about March 15, 1976 but that after March 31, 1977, thecomplainant left his work with the herein respondent and never came back; he hasnot notified the respondent herein that he was no longer reporting for work; that thesaid respondent herein only hired the said complainant on March 15, 1976 until thedate mentioned above.

3. That sometime on or about March l, 1976 respondent Gersher Engineering Workentered into a contract of services with respondent Petrophil Corporation, as anindependent contractor. ...



4. That after said contract was consummated, the complainant Anselmo Encarnacioncommenced work on or about March 15, 1976 with said respondent with monthlysalary of P340.00. ...

The payrolls of respondent Gersher also show that respondent Encarnacion was its employee. Forthe period from March 15, 1976 and continuously up to March 31, 1977, respondent Encarnacion

was receiving his salary from respondent Gersher. There was never an instance during this periodthat Encarnacion received his salary from Petrophil Corporation.

Anent the issues of his alleged illegal dismissal and his entitlement to benefits from his employer,We likewise agree with the decision of the Labor Arbiter that respondent Encarnacion was notdismissed but was only demoted and transferred to Caltex Phil. Inc. because of his failure to observeproper diligence in his work, and also because of his indolence, habitual tardiness and absences.But following his demotion and transfer, Encarnacion refused to report for work anymore. As aptlyruled by the Labor Arbiter this regard-

Anent the issue of illegal dismissal respondent Gersher Engineering Works allege(sic) that Encarnacion was not separated from the service but was only demoted

from the position of helper and transferred to the contract of respondent GersherEngineering Works with Caltex Philippines Corporation without reduction in salarydue to his failure to observe proper diligence in his work, habitual tardiness, habitualabsences and indolence in his assigned work.

Time and again, this Office has sustained the view that it is management prerogativeto transfer, demote, discipline and even to dismiss an employee to protect itsbusiness, provided it is not tainted with unfair labor practice.

The record, however, is bereft of any evidence to show that the demotion andtransfer of Encarnacion was due to unfair labor practice acts defined under Article249 ... (third official edition of the Labor Code of the Philippines, as amended), hencethe act of Gersher Engineering Works in transferring and demoting complainantEncarnacion is anchored on just and valid grounds. (pp. 19-20, Rollo)

Considering the foregoing, reinstatement of respondent Encarnacion and payment of his moneyclaims should be made by respondent Gersher Engineering Works, his employer which hasevidently accepted the decision of the Labor Arbiter by not appealing therefrom Petitioner PetrophilCorporation is absolved from any and all liability.

WHEREFORE, the appealed decision dated January 25, 1983 of the National Labor RelationsCommission is hereby REVERSED and SET ASIDE and in lieu thereof, the decision datedSeptember 26, 1977 of Labor Arbiter Modesto Rosales is ordered reinstated. No pronouncement asto costs.

SO ORDERED.

Feria (Chairman), Fernan, Alampay and Gutierrez, Jr., JJ., concur.



CASE NO.3


Manila

SECOND DIVISION

G.R. No. 78711 June 27, 1990

ABOITIZ SHIPPING EMPLOYEES ASSOCIATION, LAZARO ABAIGAR, VICTORIANO ANIBAN,FELIPE BATERZAL, RUFINO YAGUIT, JONNIE YAGUIT and EUGENIO BALBUENA, petitioners,vs.NATIONAL LABOR RELATIONS COMMISSION and ABOITIZ SHIPPINGCORPORATION, respondents.

Rogelio B. De Guzman for petitioners.

Bienvenido A. Salinas, Jr. for private respondent.

PARAS, J .:

This is a petition for certiorari to set aside the Resolutions of the public respondent National LaborRelations Commission (NLRC) dated April 30, 1987 and May 29, 1987 affirming the Decision of

August 23, 1985 rendered by Labor Arbiter Julio P. Andres, Jr. holding that:

... respondent Aboitiz Shipping Corporation could not be guilty of said charge (unfairlabor practice through dismissal) for lack of employer-employee relationship betweenthem and the individual complainants at the time said act was allegedly committed in

April 1985. (p. 165, Rollo)

and consequently dismissing the case for lack of merit. Hence, this petition anchored on twogrounds:

1. GRAVE ABUSE OF DISCRETION COMMITTED BY THE NATIONAL LABORRELATIONS COMMISSION WHICH AMOUNTS TO LACK OF JURISDICTION.

2. THE RESOLUTIONS SOUGHT TO BE REVIEWED ARE NOT IN ACCORD WITHLAW AND APPLICABLE DECISIONS OF THIS HONORABLE COURT. (p. 2Comment, p. 166, Rollo)

The real issue however which surfaces from the allegations and arguments of the parties is whetheror not an employer-employee relationship existed between respondent Aboitiz Shipping Corporation(ABOITIZ, for short) and the petitioners-workers at the time of the latter's alleged dismissal on April26, 1985.

The six (6) petitioners herein claimed that they were employed as carpenters by respondentcorporation until their illegal dismissal on April 26, 1985. They alleged that they were all allegedlydismissed by Ben Baguio and his spouse on April 26, 1985 just a day after the inspection made by



Efren Bautista of the National Capital Region of the Ministry of Labor and Employment onrespondent ABOITIZ in connection with LSED-4-408-85, a labor case which same complainants filedwith the Ministry of Labor and Employment. According to the complainants, said act of the Baguiosconstitute unfair labor practice defined under par. (f) of Article 249 of the Labor Code, as amended,and the resultant dismissal of the individual complainants is illegal as there was allegedly no justcause nor were they duly afforded due process of law. They thus, pray that the respondent

corporation be held liable for unfair labor practice through dismissal, damages and attorney's fees.

Respondent ABOITIZ denies that the petitioners were their employees at the time of their dismissalbut are employees of respondent Ben Baguio by virtue of a Service Contract dated June 16, 1984. Apertinent portion of which reads as follows:

8. That it is understood and agreed that there is no employer-employee relationshipbetween the FIRST PARTY (Aboitiz Shipping Corporation) and SECOND PARTY(Narben's Service Contractor) much less any of the latter's carpenters. The SECONDPARTY shall have the right to hire and fire such employees, exercise general controlas to the time, manner and method of performance of work; that the sole interest ofthe FIRST PARTY is that all its properties, cargoes, equipments and otherappurtenances be safe and protected from destruction, pilferage, damage and otherlosses as envisioned in paragraph 9. The SECOND PARTY shall hold free from anyliability the FIRST PARTY from any claim of whatsoever nature which the carpentersof the SECOND PARTY may institute either against the FIRST PARTY andSECOND PARTY. (pp. 3-4, NLRC Resolution; pp. 3-4, Rollo)

On their part, spouses Ben and Leonarda Baguio aver that they are the proprietors of Narben'sService Contractor engaged in contracting carpentry jobs and has a service contract with respondent

Aboitiz Shipping Corporation. Spouses Baguio admit that the petitioners were indeed theiremployees whose duties were to do carpentry work, subject to the condition that the moment theirworks were finished, their employment would end, and that they would be re-hired once respondent

ABOITIZ would enter into another contract. Petitioners submit the following pieces of evidence insupport of the presence of employer-employee relationship with respondent Aboitiz, viz:

(1) Social Security Numbers:

03-173171-0 — Lazaro Abaigar;06-112277-9 — Felipe Baterzal;03-634457-0 — Rufino Yaguit;03-77089084 — Jonnie Yaguit;07-4915-8 — Eugenio Balbuena; and03-78050193 — Victoriano Aniban

(2) Deduction for Social Security Premitims from their salaries;

(3) Company Identification Cards issued to petitioners, examples of which are Annexes "B", "B-1" and "B-2", of Petition;

(4) Withholding of taxes as evidenced by BIR Form W-2 Annexes "C" to "C-5", ofPetition; and

(5) Time Cards and normal conduct of employer-employee relations enumerated inthe above Statement of Facts. (Memorandum of Petitioners, p. 212, Rollo)



They therefore pray that the resolutions of public respondent be set aside; that this Court declare theillegality of dismissal of individual petitioners; and that their reinstatement with full backwages toprivate respondent as regular employees thereof be granted.

In the resolution of April 18, 1988, this Court gave due course to the petition and required the partiesto file their simultaneous memoranda within thirty (30) days from notice.

Records reveal that petitioners are not regular employees of the private respondent at the time oftheir alleged illegal dismissal. For one, petitioners, on June 20, 1984, filed individual application foremployment with Narben's Service Contractor. They were eventually issued payslips, deducted SSSpremiums, Pag-ibig fund and withholding tax from their salaries by this Contractor.

As held in Mafinco Trading Corporation vs. Ople, 70 SCRA 139 (1976), the existence of employer-employee relationship is determined by four (4) elements, namely: (1) the selection and engagementof the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to controlemployees' conduct. From a reading of the provisions of the aforesaid service contract, theconcurrence of these four elements on NARBEN's will easily be noted. For NARBEN's had the rightto hire the necessary number of carpenters to accomplish the carpentry requirements of respondent

corporation and to fire them. It had charge of the payment of wages of its laborers and the power ofadministrative supervision and general control as to the time, manner and method of performance ofwork.

All the above evidences constitute positive proofs that the petitioners-workers were, at the time inquestion, in the employ of NARBEN's and not anymore of respondent Corporation. RespondentNLRC, therefore, did not err in refusing to give weight to petitioners' uncorroborated claim that theywere continuously employees of Aboitiz Shipping Corporation.

With regard to the issuance of Id's to petitioners by private respondent, it appears that these Id'swere special Id's and is different from those issued to its regular employees. On these specialIdentification cards, the following words are written: THIS IS TO CERTIFY THAT THE BEARERWHOSE PICTURE APPEAR ON THIS CARD IS AUTHORIZED TO HAUL, OPERATE, ANDTRANSACT BUSINESS WITH ABOITIZ SHIPPING CORPORATION. On the other hand, appearingon the regular or probationary employee's Id cards are the following words: " THIS IS TO CERTIFYTHAT THE BEARER WHOSE PICTURE AND PERSONAL DATA APPEAR ON THIS CARD IS ANEMPLOYEE OF ABOITIZ SHIPPING CORPORATION." (pp. 109-110, Rollo)

Besides, the issue of the existence of employer-employee relationship between the parties in thecase at bar is a question of fact which has already been resolved by the labor arbiter and upheld bythe National Labor Relations Commission. Review of labor cases are confined to questions of

jurisdiction or grave abuse of discretion. We find that no grave abuse of discretion W-as committedby public respondent NLRC in affirming the non-existence of employer-employee relationshipbetween petitioners and private respondent.

PREMISES CONSIDERED, the petition is hereby DISMISSED for lack of merit.

SO ORDERED.

Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.



CASE NO. 4


Manila

SECOND DIVISION

G.R. No. 121327 December 20, 2001

CECILIO P. DE LOS SANTOS and BUKLOD MANGGAGAWA NG CAMARA(BUMACA), petitioners,vs.NATIONAL LABOR RELATIONS COMMISSION (SECOND DIVISION), HON. COMMISSIONERSVICTORIANO R. CALAYCAY, RAUL T. AQUINO, and ROGELIO I. RAYALA, CAMARA STEELINDUSTRIES INC., JOSELITO JACINTO, ALBERTO F. DEL PILAR, DENNIS ALBANO,MERCEDITA G. PASTRANA, TOP-FLITE and RAUL RUIZ, respondents.

BELLOSILLO, J .:

This is a petition for certiorari under Rule 65 assailing the Decision of public respondent NationalLabor Relations Commission (NLRC) which remanded this case to the Labor Arbiter who ruled thatpetitioner Cecilio P. de los Santos was illegally dismissed by private respondent Camara Steel, Inc.,and as a consequence, ordered his immediate reinstatement. Specifically, the dispositive portion ofthe Labor Arbiter's Decision promulgated 23 May 1999 states —

WHEREFORE, premises considered, respondent Camara Steel Industries, Inc. is herebyordered to reinstate complainant Cecilio de los Santos to his former position within ten (10)days from receipt of this Resolution without loss of seniority rights and other benefits with fullback wages from date of dismissal up to actual date of reinstatement which is hereby

computed as of even date as follows:

From 8/23/93-12/15/93 = 3.73 mos.P118 x 26 days x 3.73 mos. = P11,443.6412/16/93 - 3/29/94 = 3.43 mos.135 x 26 days x 3.43 mos. = 12,039.30

Total Backwages as of3/29/94

P23,482.94

Respondent Camara Steel Industries, Inc. is also ordered to pay complainant 10% for and asattorney's fees.

All other claims are hereby dismissed for lack of merit.

On 3 May 1991 petitioner De los Santos started working at Camara Steel Industries Inc. (CAMARASTEEL), a company engaged in the manufacture of steel products such as LPG cylinders anddrums. He was first assigned at the LPG assembly line, then later, as operator of a blastingmachine. While performing his task as such operator, he met an accident that forced him to go onleave for one and a half (1-1/2) months. Upon his return, he was designated as a janitor assigned to



clean the premises of the company, and occasionally, to transfer scrap and garbage from one site toanother. 1

On 11 May 1993 petitioner was doing his usual chores as a janitor of CAMARA STEEL when hemomentarily left his pushcart to answer the call of Narciso Honrado, scrap in-charge, whosummoned him to the company clinic. There Honrado handed him a box which he placed on top of a

drum in his pushcart for transfer to the other lot of the company near gate 2. On his way out of gate2, however, the security guard on duty found in the box handed to him by Honrado two (2) pieces ofelectric cable measuring 2.26 inches each and another piece of 1.76 meters with a total estimatedvalue of P50.00 to P100.00. Apprehensive that he might be charged with theft, petitioner De losSantos explained that the electric cord was declared a scrap by Honrado whose instructions he wasonly following to transfer the same to the adjacent lot of the company as scrap.

Narciso Honrado admitted responsibility for the haul and his error in declaring the electric cables asscrap. The general manager, apparently appeased by Honrado's apology, issued a memorandumacknowledging receipt of his letter of apology and exculpated him of any wrongdoing.

Taking an unexpected volte face , however, the company through its counsel filed on 9 July 1993 a

criminal complaint for frustrated qualified theft against Honrado and herein petitioner De los Santos.The complaint however was subsequently dismissed by the Provincial Prosecutor of Pasig for lack ofevidence. 2

On 23 August 1993, upon request of Top-Flite, alleged manpower agency of De los Santos,CAMARA STEEL terminated his services.

Aggrieved by his illegal termination, De los Santos sought recourse with the Labor Arbiter who on 29March 1994 rendered a decision ordering respondent CAMARA STEEL to reinstate Delos Santos tohis former position within ten (10) days without loss of seniority rights and other benefits with fullback wages from date of dismissal up to actual reinstatement as herein before stated.

CAMARA STEEL went to the NLRC for recourse. Top-Flite filed a Motion for Intervention prayingthat it be permitted to intervene in the appeal as co-respondent and, accordingly, be allowed tosubmit its own memorandum and other pleadings. 3

On 23 May 1995 the NLRC reversed the Labor Arbiter and ordered the return of the entire records ofthe case to the arbitration branch of origin for further proceedings. In its Decision, NLRC specifiedthe reasons for the remand to the Labor Arbiter —4

First , as respondents have broadly implied, having alleged that he was an employee ofCamara Steel, it was complainant's burden to prove this allegation as a fact, not merelythrough his uncorroborated statements but through independent evidence. As noted byrespondents, he has not submitted one piece of evidence to support his premise on thismatter except for his sworn statement.

Secondly , the Arbiter maintained that the contract of services submitted by respondents wasinsufficient to prove that complainant was an employee of Top-Flite, but he has obviouslyomitted consideration of Annexes F, G, H and I which are time sheets of the complainantwith Top-Flite and the corresponding time cards which he punches in for Camara Steel.

The NLRC further noted that under the circumstances it became appropriate to conduct a formalhearing on the particular issue of whether an employer-employee relationship existed between theparties, which issue was determinative of the nature of petitioner's dismissal by CAMARA STEEL.



That being so, according to the NLRC, it was necessary for the Labor Arbiter to issue theappropriate directive to summon Top-Flite as a necessary party to the case, for the manpoweragency to submit its own evidence on the actual status of petitioner.

As pointed out by petitioner, the errors in the disputed decision by the NLRC are: (a) NLRC violateddue process of law when it did not consider the evidence on record; (b) CAMARA STEEL, and not

Top-Flite, is the real employer of petitioner; (c) Contrary to the finding of NLRC, Top-Flite was madea party respondent in the illegal dismissal case docketed as NLRC-NCR No. 00-08-05302-93 andthe NLRC was therefore in error in remanding the case to the Labor Arbiter for further proceedings.

Petitioner De los Santos contends that NLRC was in grave error when it ruled that, with theexception of a bare assertion on his sworn statement, he "has not submitted one piece of evidenceto support his premise" 5 that he was in fact an employee of CAMARA STEEL.

To underscore NLRC's oversight, petitioner brings to our attention and specifies the pieces ofevidence which he presented before the Labor Arbiter on 19 November 1993 — also appended as

Annexes to petitioner's " Traverse to Camara's Position Paper and Reply :" (a) Annex "E" to "E-1" — Approval signature of Camara's Department head, Reynaldo Narisma, without which petitioner

cannot render overtime; (b) Annex "F"—

Petitioner's daily time record for 8/3/92 to 8/9/92; (c) Annex"F-1" — Signature of private respondent Mercedita Pastrana, approving in her capacity as AssistantManager of Camara Steel; (d) Annex "F-2" — Signature of private respondent Dennis Albano,Personnel Manager of Camara Steel Industries Inc. also co-signing for approval; (e) Annex "F-3" — Signature of Narisma, as Department Head of Camara Steel Industries Inc. where petitioner isworking; (f) Annex "G" — Daily Time Record of petitioner for 7/6/92 to 7/12/92; (g) Annex "G-1" — Signature of Camara Steel Assistant Manager; (h) Annex "G-2" — Signature of Camara's PersonnelManager, Dennis Albano, approving; (i) Annex "G-3" — Signature of Camara's Department Headwhere petitioner is working, Mr. Narisma, approving; (j) Annex "H" to "H-1" — Petitioner's Daily TimeCard (representative samples) with name and logo of Camara Steel Industries Inc.; and, (k) Annex"J" — Affidavit of Complainant.

All these pieces of evidence which, according to petitioner De los Santos, were not properlyconsidered by NLRC, plainly and clearly show that the power of control and supervision over himwas exercised solely and exclusively by the managers and supervisors of CAMARA STEEL. Eventhe power to dismiss was also lodged with CAMARA STEEL when it admitted in page 3 of its Replythat upon request by Top-Flite, the steel company terminated his employment after being allegedlycaught committing theft.

Petitioner De los Santos also advances the view that Top-Flite, far from being his employer, was infact a "labor-only" contractor as borne out by a contract whereby Top-Flite undertook to supplyCAMARA STEEL workers with "warm bodies" for its factory needs and edifices. He insists that suchcontract was not a job contract but the supply of labor only. All things considered, he is of the firmbelief that for all legal intents and purposes, he was an employee — a regular one at that — ofCAMARA STEEL.

In its comment, private respondent CAMARA STEEL avers that far from being its employee, De losSantos was merely a project employee of Top-Flite who was assigned as janitor in privaterespondent company. This much was acknowledged by Top-Flite in its Motion for Intervention filedbefore the NLRC. 6 Such allegation, according to private respondent CAMARA STEEL, supports allalong its theory that De los Santos' assignment to the latter as janitor was based on an independentcontract executed between Top-Flite and CAMARA STEEL. 7



Respondent CAMARA STEEL further argues that crystal clear in the Motion for Intervention of Top-Flite is its allegation that it was in fact petitioner's real employer as his salaries and benefits duringthe contractual period were paid by Top-Flite; not only that, De los Santos was dismissed byCAMARA STEEL upon the recommendation of Top-Flite. These ineluctably show that Top-Flite wasnot only a job contractor but was in truth and in fact the employer of petitioner.

In his petition, De los Santos vigorously insists that he was the employee of respondent CAMARASTEEL which in turn was not only denying the allegation but was finger-pointing Top-Flite aspetitioner's real employer. De los Santos again objects to this assertion and claims that Top-Flite, farfrom being an employer, was merely a "labor-only" contractor.

In the maze and flurry of claims and counterclaims, several contentious issues continue to stick outlike a sore thumb. Was De los Santos illegally dismissed? If so, by whom? Was his employerrespondent CAMARA STEEL, in whose premises he was allegedly caught stealing, or was it Top-Flite, the manpower services which allegedly hired him?

Inextricably intertwined in the resolution of these issues is the determination of whether there existedan employer-employee relationship between CAMARA STEEL and respondent De Los Santos, and

whether Top-Flite was an "independent contractor" or a "labor-only" contractor. A finding that Top-Flite was a "labor-only" contractor reduces it to a mere agent of CAMARA STEEL which by statutewould be responsible to the employees of the "labor-only" contractor as if such employees had beendirectly employed by the employer.

Etched in an unending stream of cases are the four (4) standards in determining the existence of anemployer-employee relationship, namely: (a) the manner of selection and engagement of theputative employee; (b) the mode of payment of wages; (c) the presence or absence of power ofdismissal; and, (d) the presence or absence of control of the putative employee's conduct. Mostdeterminative among these factors is the so-called "control test."

As shown by the evidence on record, De los Santos was hired by CAMARA STEEL after undergoingan interview with one Carlos Suizo, its timekeeper who worked under the direct supervision of oneRenato Pacion, a supervisor of CAMARA STEEL. These allegations are contained in theaffidavit8 executed by De los Santos and were never disputed by CAMARA STEEL. Also remaininguncontroverted are the pieces of documentary evidence adduced by De los Santos consisting ofdaily time records marked Annexes "F" and "G" which, although bearing the heading and logo ofTop-Flite, were signed by officers of respondent CAMARA STEEL, and Annexes "H" and "I" with theheading and logo of CAMARA STEEL.

Incidentally, we do not agree with NLRC's submission that the daily time records serve no otherpurpose than to establish merely the presence of De los Santos within the premises of CAMARASTEEL. Contrarily, these records, which were signed by the company's officers, prove that thecompany exercised the power of control and supervision over its employees, particularly De losSantos. There is dearth of proof to show that Top-Flite was the real employer of De los Santos other

than a naked and unsubstantiated denial by CAMARA STEEL that it has no power of control over Delos Santos. Records would attest that even the power to dismiss was vested with CAMARA STEELwhich admitted in its Reply that "Top-Flite requested CAMARA STEEL to terminate his employmentafter he was caught by the security guard committing theft."

A cursory reading of the above declaration will confirm the fact that the dismissal of De los Santoscould only be effected by CAMARA STEEL and not by Top-Flite as the latter could only "request" forDe los Santos' dismissal. If Top-Flite was truly the employer of De los Santos, it would not be asking



permission from or "requesting" respondent CAMARA STEEL to dismiss De los Santos consideringthat it could very well dismiss him without CAMARA STEEL's assent.

All the foregoing considerations affirm by more than substantial evidence the existence of anemployer-employee relationship between De los Santos and CAMARA STEEL.

As to whether petitioner De los Santos was illegally terminated from his employment, we are in fullagreement with the Labor Arbiter's finding that he was illegally dismissed. As correctly observed bythe Labor Arbiter, it was Narciso Honrado, scrap in-charge, who handed the box containing theelectrical cables to De los Santos. No shred of evidence can show that De los Santos was aware ofits contents, or if ever, that he conspired with Honrado in bilking the company of its property. What iscertain however is that while Honrado admitted, in a letter of apology, his culpability for theunfortunate incident and was unconditionally forgiven by the company, De los Santos was not onlyunceremoniously dismissed from service but was charged before the court for qualified theft (laterdismissed by the public prosecutor for lack of evidence). For sure, De los Santos cannot be heldmore guilty than Honrado who, being the scrap in-charge, had the power to classify the cablesconcerned as scrap.

Neither can we gratify CAMARA STEEL's contention that petitioner was validly dismissed for loss oftrust and confidence. As provided for in the Labor Code:

Art. 282. Termination by employment — An employer may terminate an employment for anyof the following causes: x x x (c) Fraud or willful breach by the employee of the trust reposedin him by his employer or duly authorized representative x x x x

Of course, it must be stressed that loss of confidence as a just cause for the termination ofemployment is based on the premise that the employee holds a position of trust and confidence, aswhen he is entrusted with responsibility involving delicate matters, and the task of a janitor does notfall squarely under this category.

Petitioner De los Santos argues that Top-Flite was merely a "labor-only" contractor. To fortify hisstance, De los Santos brings to our attention the contract of service 9 dated 8 February 1991 betweenCAMARA STEEL and Top-Flite which provides:

1) The contractor (Top-Flite) shall provide workers (non-skilled) six (6) days a week for theClient's (Camara) factory and edifices.

However, both respondent CAMARA STEEL and Top-Flite 10 are adamant in their belief that the latterwas not a "labor-only" contractor as they rely on another provision of the contract which states —

2) The Contractor warrants the honesty, reliability, industry and cooperative disposition of theperson it employs to perform the job subject to this contract, and shall employ such personsonly as are in possession of health certificates and police clearances x x x

The preceding provisions do not give a clear and categorical answer as regards the real character ofTop-Flite's business. For whatever its worth, the invocation of the contract of service is a tacitadmission by both parties that the employment of De los Santos was by virtue of such contract. Bethat as it may, Top-Flite, much less CAMARA STEEL, cannot dictate, by the mere expedient of aunilateral declaration in a contract, the character of its business, i.e., whether as "labor-only"contractor, or job contractor, it being crucial that its character be measured in terms of anddetermined by the criteria set by statute. The case of Tiu v. NLRC 11 succinctly enunciates thisstatutory criteria —





stringent technical rules may be relaxed in the interest of the workingman. A remand of the case, asthe NLRC envisions, would compel petitioner, a lowly worker, to tread once again the calvary of aprotracted litigation and flagellate him into submission with the lash of technicality.

WHEREFORE, the petition is GRANTED and the appealed Decision of the NLRC is REVERSEDand SET ASIDE and the Decision of the Labor Arbiter promulgated 23 May 1999 is REINSTATED

and ADOPTED as the Decision in this case.

SO ORDERED.

Mendoza, Quisumbing and De Leon, Jr., JJ ., concur.Buena, J ., on official business





The computation of the foregoing awards is hereto attached and forms an integral part of thisdecision."

On appeal, 1 the NLRC affirmed the Labor Arbiter's decision.

Hence, this petition by the PHCCI.

The issue for our resolution is whether or not respondent judge committed grave abuse of discretionin ruling that there is an employer-employee relationship between the parties and that privaterespondents were illegally dismissed.

Petitioner PHCCI contends that private respondents are its members and are working for it asvolunteers. Not being regular employees, they cannot sue petitioner.

In determining the existence of an employer-employee relationship, the following elements areconsidered: (1 ) the selection and engagement of the worker or the power to hire; (2) the power todismiss; (3) the payment of wages by whatever means; and (4) the power to control the worker'sconduct, with the latter assuming primacy in the overall consideration. No particular form of proof is

required to prove the existence of an employer-employee relationship. Any competent and relevantevidence may show the relationship. 2

The above elements are present here. Petitioner PHCCI, through Mr. Edilberto Lantaca, Jr., itsManager, hired private respondents to work for it. They worked regularly on regular working hours,were assigned specific duties, were paid regular wages and made to accomplish daily time records

just like any other regular employee. They worked under the supervision of the cooperativemanager. But unfortunately, they were dismissed.

That an employer-employee exists between the parties is shown by the averments of privaterespondents in their respective affidavits, carefully considered by respondent NLRC in affirming theLabor Arbiter's decision, thus:

Benedicto Faburada —Regular part-time Computer programmer/ operator. Worked with theCooperative since June 1, 1988 up to December 29, 1989. Work schedule: Tuesdays andThursdays, from 1:00 p.m. to 5:30 p.m. and every Saturday from 8:00 to 11:30 a.m. and 1:00to 4:00 p.m. and for at least three (3) hours during Sundays. Monthly salary : P1,000.00 — from June to December 1988; P1,350.00 - from January to June 1989; and P1,500.00 fromJuly to December 1989. Duties : Among others, — Enter data into the computer; computeinterests on savings deposits, effect mortuary deductions and dividends on fixed deposits;maintain the masterlist of the cooperative members; perform various forms formimeographing; and perform such other duties as may be assigned from time to time.

Sisinita Vilar — Clerk. Worked with the Cooperative since December 1, 1987 up toDecember 29, 1989. Work schedule : Regular working hours. Monthly salary : P500.00 — from December 1, 1987 to December 31, 1988; P1,000.00 — from January 1, 1989 to June30, 1989; and P1,150.00 — from July 1, 1989 to December 31, 1989. Duties : Among others,Prepare summary of salary advances, journal vouchers, daily summary of disbursements torespective classifications; schedule loans; prepare checks and cash vouchers for regular andemergency loans; reconcile bank statements to the daily summary of disbursements; postthe monthly balance of fixed and savings deposits in preparation for the computation ofinterests, dividends, mortuary and patronage funds; disburse checks during regular andemergency loans; and perform such other bookkeeping and accounting duties as may beassigned to her from time to time.





is whether or not the employees-members of a cooperative can organize themselves for purposes ofcollective bargaining, not whether or not the members can be employees. Petitioner missed the point

As regular employees or workers, private respondents are entitled to security of tenure. Thus, theirservices may be terminated only for a valid cause, with observance of due process.

The valid causes are categorized into two groups: the just causes under Articles 282 of the LaborCode and the authorized causes under Articles 283 and 284 of the same Code. The just causes are:(1) serious misconduct or willful disobedience of lawful orders in connection with the employee'swork; (2) gross or habitual neglect of duties; (3) fraud or willful breach of trust; (4) commission of acrime or an offense against the person of the employer or his immediate family member orrepresentative; and, analogous cases. The authorized causes are: (1) the installation of labor-savingdevices; (2) redundancy; (3) retrenchment to prevent losses; and (4) closing or cessation ofoperations of the establishment or undertaking, unless the closing is for the purpose ofcircumventing the provisions of law. Article 284 provides that an employer would be authorized toterminate the services of an employee found to be suffering from any disease if the employee'scontinued employment is prohibited by law or is prejudicial to his health or to the health of his fellowemployees 6

Private respondents were dismissed not for any of the above causes. They were dismissed becausepetitioner considered them to be mere voluntary workers, being its members, and as such work at itspleasure. Petitioner thus vehemently insists that their dismissal is not against the law.

Procedural due process requires that the employer serve the employees to be dismissed two (2)written notices before the termination of their employment is effected: (a) the first, to apprise them ofthe particular acts or omissions for which their dismissal is sought and (b) the second, to inform themof the decision of the employer that they are being dismissed. 7 In this case, only one notice wasserved upon private respondents by petitioner. It was in the form of a Memorandum signed by theManager of the Cooperative dated January 2, 1990 terminating their services effective December29, 1989. Clearly, petitioner failed to comply with the twin requisites of a valid notice.

We hold that private respondents have been illegally dismissed.

Petitioner contends that the labor arbiter has no jurisdiction to take cognizance of the complaint ofprivate respondents considering that they failed to submit their dispute to the grievance machineryas required by P.D. 175 (strengthening the Cooperative Movement) 8 and its implementing rules andregulations under LOI 23. Likewise, the Cooperative Development Authority did not issue aCertificate of Non-Resolution pursuant to Section 8 of R.A. 6939 or the Cooperative Development

Authority Law.

As aptly stated by the Solicitor General in his comment, P.D. 175 does not provide for a grievancemachinery where a dispute or claim may first be submitted. LOI 23 refers to instructions to theSecretary of Public Works and Communications to implement immediately the recommendation of

the Postmaster General for the dismissal of some employees of the Bureau of Post. Obviously, thisLOI has no relevance to the instant case.

Article 121 of Republic Act No. 6938 (Cooperative Code of the Philippines) provides the procedurehow cooperative disputes are to be resolved, thus:

ART. 121. Settlement of Disputes . — Disputes among members, officers, directors, andcommittee members, and intra-cooperative disputes shall, as far as practicable, be settled





CASE NO.6


Manila

SECOND DIVISION

G.R. No. 91552-55 March 10, 1994

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.FERNANDO MANUNGAS, JR. y GO @ "PERCY", accused-appellant.

The Solicitor General for plaintiff-appellee.

Rolando Gamalinda for accused-appellant.

NOCON, J .:

This is an appeal by accused-appellant Fernando Manungas, Jr. alias "Percy" from thedecision 1 dated October 31, 1989 of the Regional Trial Court of Lingayen, Pangasisnan, Branch 38 inCriminal Cases Nos. L-3993, L-3994,L-3996 and L-4000 finding him guilty beyond reasonable doubt of the crimes of ESTAFA and ILLEGALRECRUITMENT, the dispositive portion of which reads:

In the light of what has been stated and discussed above, the court finds and holdsthe accused Fernando Manungas y Go alias "Percy" guilty beyond peradventure ofdoubt of the crimes filed against him and conformable thereto, hereby pronounces

judgment as follows:

In Criminal Case No. L-3993, the court declares accused, Fernando Manungas y Goalias "Percy" guilty of estafa for the sum of P16,800.00 as alleged in the informationfiled against him and there being no aggravating nor mitigating circumstance, andapplying the Indeterminate Sentence Law in his favor, said accused is herebysentenced to suffer the prison term from two (2) years, eleven (11) months and tenyears (10) days as minimum to five (5) years, five (5) months and eleven (11) days ofprision correccional as maximum and to pay the costs of the proceedings.

The court further orders the accused to reimburse the offended party, WilfreyMabalot, the sum of sixteen thousand eight hundred (P16,800.00) pesos which is theamount of money paid and delivered to him by said complaining witness withoutsubsidiary imprisonment in case of insolvency.

In Criminal Case No. L-3994, the court likewise declares the accused, FernandoManungas y Go alias "Percy" guilty of estafa for the sum of P17,550.00 as chargedin the information. And there being no aggravating nor mitigating circumstance



present, and applying the Indeterminate Sentence Law in his favor, the accused ishereby sentenced to suffer an indeterminate prison term from two (2) years, eleven(11) months and ten (10) days as minimum to five (5) years, five (5) months and (11)days of prision correccional as maximum and to pay the costs of the proceedings.

The court further directs the accused to reimburse the offended party, Danilo

Ramirez the sum of seventeen thousand five hundred fifty (P17,550.00) pesos whichthe accused took from the complaint without subsidiary imprisonment in case ofinsolvency.

In Criminal Case No. L-3996, the court also declares the accused, FernandoManungas y Go alias "Percy" guilty of estafa for eighteen thousand six hundred(P18,600.00) pesos as charged in the information filed against him. There being noaggravating nor mitigating circumstance present, and applying the Indeterminate Lawin his favor, said accused is hereby sentenced to suffer an indeterminate prison termfrom two (2) years, eleven months (11) months and ten (10) days as minimum to five(5) years, five (5) months and eleven (11) days of prisioncorreccional as maximum and to pay the costs of the proceedings.

The court also directs the accused to reimburse the offended party the sum ofeighteen thousand six hundred (P18,600.00) pesos which is the amount paid anddelivered by the offended party to him without subsidiary imprisonment in case ofinsolvency.

In Criminal Case No. L-4000, the court likewise holds the accused, FernandoManungas y Go alias "Precy" guilty of the crime of Illegal Recruitment on LargeScale as charged in the information filed against him, defined and penalized underthe provisions of Article 39, par. (a) of Presidential Decree No. 2018 amending

Articles 38 and 39 of P.D. No. 442, otherwise known as the Labor Code of thePhilippines, and conformable thereto, hereby sentences the said accused to sufferthe penalty of Life Imprisonment and to pay a fine of One Hundred Thousand(P100,000.00) pesos without subsidiary imprisonment in case of insolvency pursuantto law.

The accused shall serve the penalties herein imposed against him successively orone after the other according to their severity. 2

Based on the evidence adduced before the trial court, the facts of the case are as follows:

Sometime in April of 1987, accused-appellant Fernando Manungas, Jr. went to Barangay Legaspi,Tayug, Pangasinan where he stayed in the house of Arturo and Lilia de Vera to recruit workers foremployment abroad. During his stay, accused-appellant was able to convince complainants WilfreyMabalot, Danilo Ramirez, Leonardo Estanoco and Crisanto Collado to apply as janitors in Saudi

Arabia. He told them to bring all the necessary documents for the processing of their applications tohis office in Manila.

On April 29, 1987, complainants went to accused-appellant's office located at Room 611, L and SBldg., 1414 Roxas Blvd., Ermita, Manila and paid accused-appellant P250.00 each for their medicalexamination. Thereafter, accused-appellant required the complainants to pay, on various occasions,placement fees and other expenses incurred in the processing of their papers and issuedcorresponding receipts for said amounts. The total amount paid by the complainants to accused-



appellant are the following: Wilfrey Mabalot — P16,800.00; Danilo Ramirez — P17,550.00,Leonardo Estanoco — 18,600.00, and Crisanto Collado — 13,300.00

When complainants failed to leave for Saudi Arabia, they requested Luis "Jing" Ramirez, to verifywith the Philippine Overseas Employment Administration (POEA) whether accused-appellant waslicensed to recruit workers for abroad. They subsequently learned that he was not as shown by the

Certification issued by the POEA. 3

Thereafter, complaints filed against accused-appellant complaints for Estafa defined under par. 2(a), Article 315 of the Revised Penal Code and Illegal Recruitment on a Large Scale. In due course,informations fro three (3) counts of Estafa (Criminal Cases Nos. L-3993, L-3994 and L-3996) andIllegal Recruitment on a Large Scale (Criminal Case No. L-4000) were filed against accused-appellant before the Regional Trial Court of Lingayen, Pangasinan.

On the other hand, accused-appellant maintained that he was the operations manager of the ZGRecruitment and Placement Agency, a duly licensed recruitment agency. Sometime in April 1987, hewent to Barangay Legaspi, Tayug, Pangasinan and recruited complainants to work in Saudi Arabiaas janitors. Unfortunately, the job order for the janitorial services was awarded to Express Placement

Agency instead of ZG Recruitment and Placement agency. Thereafter, accused-appellanttransferred complainants' application for overseas employment to Nora Cunanan of ExpressPlacement Agency. Accused-appellant also turned over the fees paid by the complainants to NoraCunanan as evidenced by the receipts 4 issued by the latter. When Nora Cunanan absconded with themoney of the complainants, accused-appellant filed an estafa case against Nora Cunanan after securinga Special Power of Attorney from the complainants to prosecute and collect their money. However, hewas not able to attend the hearing as he was arrested in connection with the these cases.

Accused-appellant maintains that he did not make false representations to the complainants whenhe requited the latter for employment abroad as he had told complainants that he is only anemployee of a licensed recruitment agency in Manila. He further claims that he was not motivated byany deceitful intentions and had not caused any damage to the complainants because the amountsof money given to him by the latter were actually spent for their medical tests and other documentsnecessary for their overseas employment.

Article 13 (b) of the Labor Code defines "Recruitment and Placement" as:

Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring orprocuring workers, and includes referrals, contract services, promising or advertisingfor employment, locally or abroad, whether for profit or not: Provided , That anyperson or entity which, in any manner, offers or promises for a fee employment totwo or more persons shall be deemed engaged in recruitment and placement.

In the instant case, accused-appellant told complainants to submit to him their pictures, birthcertificates, NBI clearances and the necessary documents for the processing of their employment in

Saudi Arabia. Thereafter, accused-appellant collected from each of the complainants payment forthe their respective passport, training fee, placement fee, medical tests and other sundry expenseswhich unquestionably constitutes acts of recruitment within the meaning of the law. Besides, there isillegal recruitment when one gives the impression of his ability to send a worker abroad 5 and there isevidence that accused-appellant had represented to the complainants that he could send them abroad as

janitors in Saudi Arabia. And because of his representation, complainants gave their hard-earned moneyto accused-appellant in consideration of the same representation. As pointed out by the Solicitor Generalin his brief:



It may be that at the time appellant recruited private complainants, he was then theoperations manager of the ZGR Placement Agency, a duly licensed recruitmentagency. But, as amply established by the evidence, the recruitment of privatecomplainants was appellant's own personal undertaking. He did not do it for theagency. This is clearly shown by the sequence of events that led to theconsum[m]ation of the transaction in question. Thus: it was appellant who talked

private complainants into applying for employment abroad; when privatecomplainants signified their interest, he alone was the one who informed them of thedocuments that they have to secure; he too was the one who demanded andreceived from them the fees for medical examination, passport, authentication,training, placement and psycho and AIDS test; also, he was the one who assuredthem of employment abroad and of the return of their money in the event of theirnon-deployment; moreover, it was he who undertook to inform private complainantsof their departure.

But that is not all. When private complainants failed to receive notice of theirdeparture as promised them by appellant, they had somebody verify with the POEA ifappellant was a licensed recruiter. This circumstance shows all the more that indeedappellant represented himself to be the recruiter, otherwise it would have been thestatus of the agency with which he allegedly worked for, that private complainantswould have requested to be verified. 6

As to accused-appellant's claim that he did not misappropriate the money given to him by thecomplainants as he had turned over the latters' placement fees to Nora Cunanan, who subsequentlyabsconded with the complainant's money, the trial court correctly held that:

The version of the defense has the nature of a cock and bull story which is difficultand hard to accept. It is something that is fantastic and ridiculous. It is within therealm of fiction and patently a mere fabrication to exculpate the accused from theconsequences of his nefarious and deceitful activities. If it is really true that thecomplainants were transferred and accommodated by the agency of Nora Cunanan,why did not the accused and Mrs. Lydia Zamora who appear to be both intelligenttake the necessary prudence and caution of putting the supposed agreement totransfer in writing considering the amounts of funds involved in the alleged transfer.Logic and common sense dictate that under such a situation, the accused and Mrs.Zamora take ordinary care of their concerns. To impress the court that there wasreally a transfer made, the accused claimed that there was a estafa case filedagainst Mrs. Cunanan before the City Fiscal's Office in Manila. It is howeversurprising why Atty. Jose Torrefranca who was engaged by the accused to file theestafa case did not present any letter-complaint or any charged sheet filed againstMrs. Cunanan. He did not even mention the Fiscal who investigated the case. Moreintriguing is the fact that counsel does not know what happened to the alleged caseof estafa after he filed the same. Likewise, when Mrs. Lydia Zamora declared, sheclaimed that the case filed against Nora Cunanan was before the Regional TrialCourt and not in the City Fiscal's Office.

Defense also made capital of the special power of atty. executed by thecomplainants (exhibit 4) and their letters sent to the accused (exhibits 5, 6, 7 and 8)to convince the court that the real culprit in the whole mess in Nora Cunanan. Thecomplainants made convincing explanation why they signed the special power ofattorney. Wilfrey Mabalot declared that when the accused asked him to sign thedocument, he was told that its purpose is to facilitate their departure and when hesigned the letter exhibit "6" he was just told to sign by the accused and because the



latter was in [a] hurry, he signed without knowing its contents. He likewise explainedthat being a mere high school graduate he was not able to understand the imports ofits contents. Danilo Ramirez explained that when he signed the special power ofattorney, he did not read the contents because the accused was in [a] hurry inreturning to Manila and that he sent the three letters to the accused while he wasconfined in jail because Manungas asked him to help him (accused) recover the

money given to Mrs. Cunanan. Leonardo Estanoco declared, that he signed exhibit"4" because the accused told him that the document will be used to facilitate theprocessing of their papers. He did not understand its contents because he onlyunderstands little English. 7

Thus accused-appellant is guilty of the crimes of Estafa and Illegal Recruitment. Under Article 38 ofthe Labor Code, as amended, the crime of illegal recruitment is qualified when the same iscommitted against three (3) or more persons.

A person who violates any of the provisions under Article 13(b) and Article 34 of the Labor Code canbe charged and convicted separately of illegal recruitment and estafa [Revised Penal Code, Article315, 2(a)] because illegal recruitment is a malum prohibitum where the criminal intent of the accusedis not necessary for a conviction while estafa is a malum in se where criminal intent of the accused isnecessary for a conviction.

WHEREFORE, finding the accused-appellant guilty of the crimes of estafa and illegal recruitment ina large scale, decision of the trial court is hereby AFFIRMED.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Puno, JJ., concur.



CASE NO. 7


Manila

SECOND DIVISION

G.R. No. 113547 February 9, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.ANITA BAUTISTA y LATOJA, accused-appellant.

PUNO, J .:

Four (4) separate Informations 1 were filed before the Regional Trial Court of Manila (Branch XLI)against accused ANITA BAUTISTA y LATOJA, charging her with the crimes of Illegal Recruitment InLarge Scale 2 and Estafa . 3

Upon arraignment on January 29, 1992, accused pleaded NOT GUILTY. 4 The four (4) cases weretried jointly.

After trial, the court a quo found accused guilty as charged. 5 In the illegal recruitment case, she wasmeted the penalty of life imprisonment and ordered to pay P 100,000.00 as fine. In the estafa cases, shewas sentenced from two (2) years, eight (8) months and twenty one (21) days of prision correccional as

minimum, to six (6) years, five (5) months and eleven (11) days of prision mayor as maximum for eachcount of estafa, and pay each complainant the amount of P40,000.00 as civil indemnity.

Accused, thru counsel, filed her Notice of Appeal, dated March 6, 1992, indicating her desire toelevate her case to this Court. 6 The records of the case were, however, transmitted by the trial court tothe Court of Appeals. In its Decision 7dated November 26, 1993, the appellate court affirmed appellant'sconviction. However, it modified the penalty for the three (3) estafa cases. The dispositive portion of thedecision of the appellate court states:

WHEREFORE, in Criminal Case No. 92-102377, the Court finds accused AnitaBautista GUILTY BEYOND REASONABLE DOUBT of the crime of illegalrecruitment, described and penalized under Article 13 (b), Article 38 (a) and (b) and

Article 39 (a) of the Labor Code, and imposes upon her the penalty of lifeimprisonment and fine of P100,000.00. . . .

Insofar as Criminal Case No. 92-102378, Criminal Case No. 92-102379 and CriminalCase No. 92-102380, the Court renders judgment, finding accused AnitaBautista GUILTY BEYOND REASONABLE DOUBT of the crime of estafa, describedand penalized under Article 315 par. 2 (a) of the Revised Penal Code, andsentencing her in each criminal case to the indeterminate penalty of ( sic ) from FOUR(4) YEARS and TWO (2) MONTHS of prision correccional , as minimum, to NINE (9)YEARS of prision mayor , as maximum, and to pay each complainants Remigio



Fortes, Anastacio Amor and Dominador Costales, the amount of P40,000.00, withoutsubsidiary imprisonment in case of insolvency, with costs. Accordingly, the penaltyimposed upon accused by the lower court is MODIFIED .

IT IS SO ORDERED.

Pursuant to Section 13 of Rule 124, the appellate court elevated to us the records of the case forreview. Notice was given to appellant for her to file additional Brief if she so desires. None was filedin her behalf.

The facts are as found by the appellate court:

Sometime in August 1991, accused Anita Bautista approached Romeo Paguio at thelatter's restaurant at 565 Padre Faura St., Manila, and offered job openings abroad.

At that time, Paguio had relatives who were interested to work abroad. Accused, whoalso operated a restaurant nearby at Padre Faura, informed Paguio that she knewsomebody who could facilitate immediate employment in Taiwan for Paguio'srelatives. Accused Anita Bautista introduced Rosa Abrero to Paguio. Abrero informed

him that the applicants could leave for Taiwan within a period of one-month from thepayment of placement fees. They informed Paguio that the placement fee wasP40,000.00 for each person. Paguio contacted his relatives, complainants RemigioFortes and Dominador Costales who were his brothers-in-law, and Anastacio Amor,a cousin, who lost no time raising the needed money and gave the same to Paguio.The three were to work as factory workers and were to be paid $850.00 monthlysalary each. Paguio gave Rosa Abrero P20,000.00, which would be used in followingup the papers of the complainants; later he gave accused P40,000.00 andP60,000.00 in separate amounts, totalling P100,000.00, as the remaining balance.

Abrero and accused Bautista promised Paguio and complainants that the latter couldleave for Taiwan before September 25, 1991. As September 25, 1991 approached,accused Bautista informed Paguio and complainants that there was a delay in thelatter's departure because their tickets and visas had not yet been released. Accusedre-scheduled the complainants' departure to October 10, 1991. Came October 10,1991, and complainants were still not able to leave. Paguio then required accusedBautista to sign the "Acknowledgment Receipt," dated October 11, 1991, in whichaccused admitted having received the sum of P100,000.00 from Paguio,representing payment of plane tickets, visas and other travel documents (Exhibit A).Paguio asked accused to return complainants' money; accused, however, promisedthat complainants could leave for Taiwan before Christmas. From POEA, Paguiosecured a certification, dated January 9, 1992 attesting that Annie Bautista and Rosa

Abrero are not licensed or authorized to recruit workers for overseas employment(Exhibit B). Complainants Fortes, Amor and Costales, as well as Paguio, gave theirwritten statements at the Office of the Assistant Chief Directorial Staff for Intelligenceof the WPDC, complaining about their being victims of illegal recruitment by Rosa

Abrero and Annie Bautista (Exhibits C, D, E and F).

The issue boils down to whether or not reasonable doubt exists to warrant the acquittal of appellant Anita Bautista.

We find none.

The Labor Code defines recruitment and placement as referring to "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 ornot: Provided that any person or entity which, in any manner, offers or promises for a feeemployment to two or more persons shall be deemed engaged in recruitment and placement." 8

It is settled that the essential elements of the crime of illegal recruitment in large scale are: (1) theaccused engages in the recruitment and placement of workers, as defined under Article 13 (b) or in

any prohibited activities under Article 34 of the Labor Code; (2) accused has not complied with theguidelines issued by the Secretary of Labor and Employment, particularly with respect to thesecuring of a license or an authority to recruit and deploy workers, either locally or overseas; and (3)accused commits the same against three (3) or more persons, individually or a group. 9

For her exculpation, appellant denied she recruited complainants for employment abroad. Sheclaimed Romeo Paguio was the one who approached her and asked for someone who could helphis relatives work abroad. She thus introduced Rosa Abrero, a regular customer at her restaurant, toPaguio. In turn, Paguio introduced Abrero to complainants in their subsequent meeting. Further,appellant testified she was present during the recruitment of complainants since their meeting with

Abrero was held at her restaurant. Appellant likewise stressed she did not receive the amount ofP100,000.00, as stated in the Acknowledgment Receipt, dated October 11, 1991, but merelyacknowledged that said sum was received by Rosa Abrero from Romeo Paguio.

Appellant's defense does not persuade us.

Appellant's active participation in the recruitment process of complainants belies her claim ofinnocence. Complainants' recruitment was initiated by appellant during her initial meeting withRomeo Paguio. She gave the impression to Romeo Paguio and the complainants that her cohort,Rosa Abrero, could send workers for employment abroad. She introduced Rosa Abrero to RomeoPaguio. Both women assured the departure of complainants to Taiwan within one month frompayment of the placement fee of P40,000.00 per person. They even claimed that complainantswould work as factory workers for a monthly salary of $850.00 per person. Moreover, it wasappellant who informed Romeo Paguio that complainants' scheduled trip to Taiwan would be onOctober 10, 1991, instead of the original departure date of September 25, 1991, due to someproblems on their visas and travel documents.

Her close association with Rosa Abrero is further strengthened by the Acknowledgment Receipt,dated October 11, 1991, which was prepared by Romeo Paguio for the protection of complainants.The receipt reads:

ACKNOWLEDGMENT RECEIPT

P100,000.00 October 11, 1991

RECEIVED FROM: ROMEO PAGUIO, the amount of ONE HUNDRED THOUSAND(P100,000.00) PESOS, Philippine Currency, representing the payment (of) planeticket, visa and other travel documents.

CONFORME:

By:

(Sgd.) ROMEO PAGUIO (Sgd.) MRS. ANNIE BAUTISTA



c/o Rosa Abrero

SIGNED IN THE PRESENCE OF:

(Sgd.) Anastacio Amor Remigio Fortes

Dominador Costales

Said receipt shows that appellant collected the P100,000.00 for and in behalf of Rosa Abrero, andbolsters Romeo Paguio's allegation that he gave P20,000.00 to Rosa Abrero, while the rest wasreceived by appellant. Notably, in its Decision, dated February 14, 1992, the trial court observed:

The denial(s) made by the accused of any participation in the recruitment of thecomplainants do not persuade. The evidence at hand shows that she acknowledgedin writing the receipt of P100,000.00 from witness Romeo Paguio who was all alongrepresenting the complainants in securing employment for them in Taiwan. Herdenial of having actually received the money in the sum of P100,000.00, the receiptof which she voluntarily signed is not convincing. By her own admission, she is a

restaurant operator. In other words, she is a business woman. As such, she ought toknow the consequences in signing any receipt. That she signed Exh. "A" only goes toshow that fact, as claimed by Romeo Paguio, that she actually received the same.

It is uncontroverted that appellant and Rosa Abrero are not authorized or licensed to engage inrecruitment activities. 10 Despite the absence of such license or authority, appellant participated in therecruitment of complainants. Since there are at least three (3) victims in this case, appellant is correctlyheld criminally liable for illegal recruitment in large scale. 11

We shall now discuss appellant's culpability under the Revised Penal Code, specifically Article 315thereof, inasmuch as her conviction for offenses under the Labor Code does not avert punishmentfor offenses punishable by other laws. 12

The elements of estafa are as follows: (1) that the accused defrauded another (a) by abuse ofconfidence, or (b) by means of deceit; and (2) that damage or prejudice capable of pecuniaryestimation is caused by the offended party or third party.

In the case at bench, it is crystal clear that complainants were deceived by appellant and Rosa Abrero into believing that there were, indeed, jobs waiting for them in Taiwan. The assurances givenby these two (2) women made complainants part with whatever resources they have, in exchangefor what they thought was a promising job abroad. Thus, they sold their carabaos, mortgaged or soldtheir parcels of land and even contracted loans to raise the much needed money, the P40,000.00placement fee, required of them by accused and Rosa Abrero.

The penalty for estafa depends on the amount defrauded. Article 315 of the Revised Penal Codeprovides: "the penalty of prision correccional in its maximum period to prision mayor in its minimumperiod (or imprisonment ranging from 4 years, 2 months and 1 day to 8 years), if the amount of thefraud is over P12,000.00 but does not exceed P22,000.00 pesos, and if such amount exceeds thelatter sum, the penalty provided in this paragraph shall be imposed in its maximum period (6 years, 8months and 21 days to 8 years), adding one year for each additional P10,000 .00 pesos ; but the totalpenalty which may be imposed shall not exceed twenty years. In such case, and in connection withthe accessory penalties which may be imposed and for the purpose of other provisions of this Code,the penalty shall be termed prision mayor or reclusion temporal , as the case may be.



The amount defrauded in such estafa case (Criminal Case Nos. 92-102378, 92-102379, 92-102380)is P 40,000.00. As prescribed in Article 315, supra , the penalty should be imposed in the maximum

period (6 years, 8 months and 21 days to 8 years) plus one (1) year , there being only one (1)P10,000.00 in excess of P22,000.00. Applying the Indeterminate Sentence Law, the maximumpenalty should be taken from the aforesaid period, while the minimum term of the indeterminatepenalty shall be within the range of the penalty next lower in degree, that is — prision correccional in

its minimum and medium periods which has a duration of 6 months, 1 day to 4 year and 2 months.

Considering the foregoing, the appellant court correctly imposed the indeterminate penalty of four (4)years and two (2) months of prision correccional , as minimum, to nine (9) years of prision mayor , asmaximum.

WHEREFORE, premises considered, the decision of the Court of Appeals, finding appellant ANITABAUTISTA guilty beyond reasonable doubt of the crimes of Illegal Recruitment in LargeScale (Criminal Case Nos. 92-102377) and Estafa (Criminal Case Nos. 92-102378, 92-102379, 92-102380) is AFFIRMED. No Costs.

SO ORDERED.

Narvasa, C.J., Bidin, Regalado and Mendoza, JJ., concur.



CASE NO. 8


Manila

SECOND DIVISION

G.R. No. 113161 August 29, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.LOMA GOCE y OLALIA, DAN GOCE and NELLY D. AGUSTIN, accused. NELLY D.AGUSTIN, accused-appellant .

REGALADO, J .:

On January 12, 1988, an information for illegal recruitment committed by a syndicate and in largescale, punishable under Articles 38 and 39 of the Labor Code (Presidential Decree No. 442) asamended by Section 1(b) of Presidential Decree No. 2018, was filed against spouses Dan and LomaGoce and herein accused-appellant Nelly Agustin in the Regional Trial Court of Manila, Branch 5,alleging —

That in or about and during the period comprised between May 1986 and June 25,1987, both dates inclusive, in the City of Manila, Philippines, the said accused,conspiring and confederating together and helping one another, representingthemselves to have the capacity to contract, enlist and transport Filipino workers foremployment abroad, did then and there willfully and unlawfully, for a fee, recruit andpromise employment/job placement abroad, to (1) Rolando Dalida y Piernas, (2)Ernesto Alvarez y Lubangco, (3) Rogelio Salado y Savillo, (4) Ramona Salado y

Alvarez, (5) Dionisio Masaya y de Guzman, (6) Dave Rivera y de Leon, (7) Lorenzo Alvarez y Velayo, and (8) Nelson Trinidad y Santos, without first having secured therequired license or authority from the Department of Labor. 1

On January 21, 1987, a warrant of arrest was issued against the three accused but not one of themwas arrested. 2Hence, on February 2, 1989, the trial court ordered the case archived but it issued astanding warrant of arrest against the accused. 3

Thereafter, on learning of the whereabouts of the accused, one of the offended parties, RogelioSalado, requested on March 17, 1989 for a copy of the warrant of arrest. 4 Eventually, at aroundmidday of February 26, 1993, Nelly Agustin was apprehended by the Parañaque police. 5 On March 8,1993, her counsel filed a motion to revive the case and requested that it be set for hearing "for purposesof due process and for the accused to immediately have her day in court" 6 Thus, on April 15, 1993, thetrial court reinstated the case and set the arraignment for May 3, 1993, 7 on which date of Agustin pleadednot guilty 8 and the case subsequently went to trial.



Four of the complainants testified for the prosecution. Rogelio Salado was the first to take thewitness stand and he declared that sometime in March or April, 1987, he was introduced by Lorenzo

Alvarez, his brother-in-law and a co-applicant, to Nelly Agustin in the latter's residence at Factor,Dongalo, Parañaque, Metro Manila. Representing herself as the manager of the Clover Placement

Agency, Agustin showed him a job order as proof that he could readily be deployed for overseasemployment. Salado learned that he had to pay P5,000.00 as processing fee, which amount he gave

sometime in April or May of the same year. He was issued the corresponding receipt. 9

Also in April or May, 1987, Salado, accompanied by five other applicants who were his relatives,went to the office of the placement agency at Nakpil Street, Ermita, Manila where he saw Agustinand met the spouses Dan and Loma Goce, owners of the agency. He submitted his bio-data andlearned from Loma Goce that he had to give P12,000.00, instead of the original amount ofP5,000.00 for the placement fee. Although surprised at the new and higher sum, they subsequentlyagreed as long as there was an assurance that they could leave for abroad. 10

Thereafter, a receipt was issued in the name of the Clover Placement Agency showing that Saladoand his aforesaid co-applicants each paid P2,000.00, instead of the P5,000.00 which each of themactually paid. Several months passed but Salado failed to leave for the promised overseasemployment. Hence, in October, 1987, along with the other recruits, he decided to go to thePhilippine Overseas Employment Administration (POEA) to verify the real status of CloverPlacement Agency. They discovered that said agency was not duly licensed to recruit job applicants.Later, upon learning that Agustin had been arrested, Salado decided to see her and to demand thereturn of the money he had paid, but Agustin could only give him P500.00. 11

Ramona Salado, the wife of Rogelio Salado, came to know through her brother, Lorenzo Alvarez,about Nelly Agustin. Accompanied by her husband, Rogelio, Ramona went to see Agustin at thelatter's residence. Agustin persuaded her to apply as a cutter/sewer in Oman so that she could joinher husband. Encouraged by Agustin's promise that she and her husband could live together whileworking in Oman, she instructed her husband to give Agustin P2,000.00 for each of them asplacement fee, or the total sum of P4,000.00. 12

Much later, the Salado couple received a telegram from the placement agency requiring them toreport to its office because the "NOC" (visa) had allegedly arrived. Again, around February, orMarch, 1987, Rogelio gave P2,000.00 as payment for his and his wife's passports. Despite follow-upof their papers twice a week from February to June, 1987, he and his wife failed to leave forabroad. 13

Complainant Dionisio Masaya, accompanied by his brother-in-law, Aquiles Ortega, applied for a jobin Oman with the Clover Placement Agency at Parañaque, the agency's former office address.There, Masaya met Nelly Agustin, who introduced herself as the manager of the agency, and theGoce spouses, Dan and Loma, as well as the latter's daughter. He submitted several pertinentdocuments, such as his bio-data and school credentials. 14

In May, 1986, Masaya gave Dan Goce P1,900.00 as an initial downpayment for the placement fee,and in September of that same year, he gave an additional P10,000.00. He was issued receipts forsaid amounts and was advised to go to the placement office once in a while to follow up hisapplication, which he faithfully did. Much to his dismay and chagrin, he failed to leave for abroad aspromised. Accordingly, he was forced to demand that his money be refunded but Loma Goce couldgive him back only P4,000.00 in installments. 15

As the prosecution's fourth and last witness, Ernesto Alvarez took the witness stand on June 7,1993. He testified that in February, 1987, he met appellant Agustin through his cousin, Larry Alvarez,



at her residence in Parañaque. She informed him that " madalas siyang nagpapalakad sa Oman " andoffered him a job as an ambulance driver at the Royal Hospital in Oman with a monthly salary ofabout $600.00 to $700.00. 16

On March 10, 1987, Alvarez gave an initial amount of P3,000.00 as processing fee to Agustin at thelatter's residence. In the same month, he gave another P3,000.00, this time in the office of the

placement agency. Agustin assured him that he could leave for abroad before the end of 1987. Hereturned several times to the placement agency's office to follow up his application but to no avail.Frustrated, he demanded the return of the money he had paid, but Agustin could only give backP500.00. Thereafter, he looked for Agustin about eight times, but he could no longer find her. 17

Only herein appellant Agustin testified for the defense. She asserted that Dan and Loma Goce wereher neighbors at Tambo, Parañaque and that they were licensed recruiters and owners of the CloverPlacement Agency. Previously, the Goce couple was able to send her son, Reynaldo Agustin, toSaudi Arabia. Agustin met the aforementioned complainants through Lorenzo Alvarez whorequested her to introduce them to the Goce couple, to which request she acceded. 18

Denying any participation in the illegal recruitment and maintaining that the recruitment was

perpetrated only by the Goce couple, Agustin denied any knowledge of the receipts presented by theprosecution. She insisted that the complainants included her in the complaint thinking that this wouldcompel her to reveal the whereabouts of the Goce spouses. She failed to do so because in truth, soshe claims, she does not know the present address of the couple. All she knew was that they hadleft their residence in 1987. 19

Although she admitted having given P500.00 each to Rogelio Salado and Alvarez, she explainedthat it was entirely for different reasons. Salado had supposedly asked for a loan, while Alvarezneeded money because he was sick at that time. 20

On November 19, 1993, the trial court rendered judgment finding herein appellant guilty as aprincipal in the crime of illegal recruitment in large scale, and sentencing her to serve the penalty oflife imprisonment, as well as to pay a fine of P100,000.00. 21

In her present appeal, appellant Agustin raises the following arguments: (1) her act of introducingcomplainants to the Goce couple does not fall within the meaning of illegal recruitment andplacement under Article 13(b) in relation to Article 34 of the Labor Code; (2) there is no proof ofconspiracy to commit illegal recruitment among appellant and the Goce spouses; and (3) there is noproof that appellant offered or promised overseas employment to the complainants. 22 These threearguments being interrelated, they will be discussed together.

Herein appellant is accused of violating Articles 38 and 39 of the Labor Code. Article 38 of the LaborCode, as amended by Presidential Decree No. 2018, provides that any recruitment activity, includingthe prohibited practices enumerated in Article 34 of said Code, undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 thereof. The same

article further provides that illegal recruitment shall be considered an offense involving economicsabotage if any of these qualifying circumstances exist, namely, (a) when illegal recruitment iscommitted by a syndicate, i .e ., if it is carried out by a group of three or more persons conspiringand/or confederating with one another; or (b) when illegal recruitment is committed in largescale, i .e ., if it is committed against three or more persons individually or as a group.

At the outset, it should be made clear that all the accused in this case were not authorized to engagein any recruitment activity, as evidenced by a certification issued by Cecilia E. Curso, Chief of theLicensing and Regulation Office of the Philippine Overseas Employment Administration, on



November 10, 1987. Said certification states that Dan and Loma Goce and Nelly Agustin are neitherlicensed nor authorized to recruit workers for overseasemployment. 23 Appellant does not dispute this. As a matter of fact her counsel agreed to stipulate thatshe was neither licensed nor authorized to recruit applicants for overseas employment. Appellant,however, denies that she was in any way guilty of illegal recruitment. 24

It is appellant's defensive theory that all she did was to introduce complainants to the Goce spouses.Being a neighbor of said couple, and owing to the fact that her son's overseas job application wasprocessed and facilitated by them, the complainants asked her to introduce them to said spouses.

Allegedly out of the goodness of her heart, she complied with their request. Such an act, appellantargues, does not fall within the meaning of "referral" under the Labor Code to make her liable forillegal recruitment.

Under said Code, recruitment and placement refers to 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; provided , thatany person or entity which, in any manner, offers or promises for a fee employment to two or morepersons shall be deemed engaged in recruitment and placement. 25 On the other hand, referral is theact of passing along or forwarding of an applicant for employment after an initial interview of a selectedapplicant for employment to a selected employer, placement officer or bureau. 26

Hence, the inevitable query is whether or not appellant Agustin merely introduced complainants tothe Goce couple or her actions went beyond that. The testimonial evidence hereon show that sheindeed further committed acts constitutive of illegal recruitment. All four prosecution witnessestestified that it was Agustin whom they initially approached regarding their plans of workingoverseas. It was from her that they learned about the fees they had to pay, as well as the papersthat they had to submit. It was after they had talked to her that they met the accused spouses whoowned the placement agency.

As correctly held by the trial court, being an employee of the Goces, it was therefore logical forappellant to introduce the applicants to said spouses, they being the owners of the agency. As such,

appellant was actually making referrals to the agency of which she was a part. She was thereforeengaging in recruitment activity. 27

Despite Agustin's pretensions that she was but a neighbor of the Goce couple, the testimonies of theprosecution witnesses paint a different picture. Rogelio Salado and Dionisio Masaya testified thatappellant represented herself as the manager of the Clover Placement Agency. Ramona Salado wasoffered a job as a cutter/sewer by Agustin the first time they met, while Ernesto Alvarez rememberedthat when he first met Agustin, the latter represented herself as " nagpapaalis papunta saOman ." 28 Indeed, Agustin played a pivotal role in the operations of the recruitment agency, workingtogether with the Goce couple.

There is illegal recruitment when one gives the impression of having the ability to send a worker

abroad."29

It is undisputed that appellant gave complainants the distinct impression that she had thepower or ability to send people abroad for work such that the latter were convinced to give her the moneyshe demanded in order to be so employed. 30

It cannot be denied that Agustin received from complainants various sums for purpose of theirapplications. Her act of collecting from each of the complainants payment for their respectivepassports, training fees, placement fees, medical tests and other sundry expenses unquestionablyconstitutes an act of recruitment within the meaning of the law. In fact, appellant demanded andreceived from complainants amounts beyond the allowable limit of P5,000.00 under government



regulations. It is true that the mere act of a cashier in receiving money far exceeding the amountallowed by law was not considered per se as "recruitment and placement" in contemplation of law,but that was because the recipient had no other participation in the transactions and did not conspirewith her co-accused in defrauding the victims. 31 That is not the case here.

Appellant further argues that "there is no evidence of receipts of collections/payments from

complainants to appellant." On the contrary, xerox copies of said receipts/vouchers were presentedby the prosecution. For instance, a cash voucher marked as Exhibit D, 32 showing the receipt ofP10,000.00 for placement fee and duly signed by appellant, was presented by the prosecution. Anotherreceipt, identified as Exhibit E, 33 was issued and signed by appellant on February 5, 1987 toacknowledge receipt of P4,000.00 from Rogelio and Ramona Salado for "processing of documents forOman." Still another receipt dated March 10, 1987 and presented in evidence as Exhibit F, shows thatappellant received from Ernesto Alvarez P2,000.00 for "processing of documents for Oman." 34

Apparently, the original copies of said receipts/vouchers were lost, hence only xerox copies thereofwere presented and which, under the circumstances, were admissible in evidence. When the originalwriting has been lost or destroyed or cannot be produced in court, upon proof of its execution andloss or destruction, or unavailability, its contents may be proved by a copy or a recital of its contentsin some authentic document, or by the recollection of witnesses. 35

Even assuming arguendo that the xerox copies presented by the prosecution as secondary evidenceare not allowable in court, still the absence thereof does not warrant the acquittal of appellant.In People vs . Comia , 36 where this particular issue was involved, the Court held that the complainants'failure to ask for receipts for the fees they paid to the accused therein, as well as their consequent failureto present receipts before the trial court as proof of the said payments, is not fatal to their case. Thecomplainants duly proved by their respective testimonies that said accused was involved in the entirerecruitment process. Their testimonies in this regard, being clear and positive, were declared sufficient toestablish that factum probandum .

Indeed, the trial court was justified and correct in accepting the version of the prosecution witnesses,their statements being positive and affirmative in nature. This is more worthy of credit than the mere

uncorroborated and self-serving denials of appellant. The lame defense consisting of such baredenials by appellant cannot overcome the evidence presented by the prosecution proving her guiltbeyond reasonable doubt. 37

The presence of documentary evidence notwithstanding, this case essentially involves the credibilityof witnesses which is best left to the judgment of the trial court, in the absence of abuse of discretiontherein. The findings of fact of a trial court, arrived at only after a hearing and evaluation of what canusually be expected to be conflicting testimonies of witnesses, certainly deserve respect by anappellate court. 38 Generally, the findings of fact of the trial court on the matter of credibility of witnesseswill not be disturbed on appeal. 39

In a last-ditch effort to exculpate herself from conviction, appellant argues that there is no proof ofconspiracy between her and the Goce couple as to make her liable for illegal recruitment. We do notagree. The evidence presented by the prosecution clearly establish that appellant confabulated withthe Goces in their plan to deceive the complainants. Although said accused couple have not beentried and convicted, nonetheless there is sufficient basis for appellant's conviction as discussedabove.

In People vs . Sendon , 40 we held that the non-prosecution of another suspect therein provided no groundfor the appellant concerned to fault the decision of the trial court convicting her. The prosecution of otherpersons, equally or more culpable than herein appellant, may come later after their true identities and



Documents

LABOR LAW CASES (1-8)