Sevillana vs I T Corp: 99047 : April 16, 2001 : J. De Leon, Jr : Second Division

SECOND DIVISION

[G.R. No. 99047. April 16, 2001]

OMAR O. SEVILLANA, petitioner, vs. I.T. (INTERNATIONAL) CORP./SAMIR MADDAH & TRAVELLERS INSURANCE AND SURETY CORPORATION, DEPARTMENT OF LABOR AND EMPLOYMENT and NATIONAL LABOR RELATIONS COMMISSION (Second Division), respondents.

D E C I S I O N

DE LEON, JR., J.:

This old petition, denominated as a petition for review on certiorari under Rule 45 of the Revised Rules of court, shall be treated as a special civil action for certiorari under Rule 65 for reasons which are hereinafter stated. The petition seeks to reverse the Resolution[1] dated March 26, 1991 of public respondent National Labor relations Commission (NLRC), Second Division, which set aside the Decision[2] dated December 29, 1989 of the Philippine Overseas Employment Administration Adjudication Office in POEA Case No. (L) 88-12-1048.

The facts are as follows:

Sometime in November 1987, petitioner Omar Sevillana was contracted to work as a driver by private respondent I.T. (International) Corporation (I.T., for brevity) for its foreign accredited principal, Samir Maddah (Samir, for brevity), in Jeddah, Saudi Arabia. The agreed monthly salary was US $370.00 for a period of two (2) years. Petitioner alleged, however, that when he received his salaries from his employer, he was only paid US $100.00 a month for twelve (12) months, instead of the agreed US $370.00 per month.

On November 2, 1988, after working twelve (12) months with his employer, petitioner said that he was repatriated without any valid and justifiable reason. Petitioner shouldered the cost of his return airfare in the amount of US $630.00.

Thereafter, petitioner filed a complaint with the Philippine Overseas Employment Administration (POEA, for brevity) for underpayment of salaries, illegal dismissal, reimbursement of return airfare, moral damages and attorney's fees against I.T. (International) Corporation, Samir Maddah and Travellers Insurance and Surety Corporation (Travellers, for brevity).

In answer thereto, private respondent I.T. denied the material allegations of the petitioner but admitted that the petitioner was one of several workers it deployed and employed abroad. I.T. argued that the petitioner continuously worked with Samir for more than one (1) year until his blood pressure was considered critical. Thus, Samir was forced to closely monitor the health condition of the petitioner. When petitioner's blood pressure did not stabilize and begun affecting his work as driver due to frequent headaches and dizziness, I.T. alleged that Samir decided to repatriate the petitioner to avoid further injury and complication to his health. I.T. claimed that after the petitioner had received all the benefits accorded to an employee consisting of full salaries and separation pay, the petitioner refused to be repatriated and instead decided to run away. Since then, the whereabouts of the petitioner were unknown and I.T. only heard about the petitioner when the latter reported to their office in the Philippines and later on filed the subject complaint before the POEA Adjudication Office.

After both parties have submitted their respective position papers and their evidence thereto, the POEA Adjudication Office, through Tomas Achacoso, rendered a decision on December 29, 1989 holding the private respondents herein jointly and severally liable to the petitioner. The dispositive portion of the POEA decision reads -

"WHEREFORE, premises considered, judgment is hereby rendered ordering the respondents (International) Corporation, Madir and Travellers Insurance & Surety Corporation jointly and severally liable to the complainants the following amounts or their peso equivalents at the time of payment:

1. THREE THOUSAND TWO HUNDRED FORTY US DOLLARS (US $3,240.00) representing complainant's salary differential for his twelve months employment;

2. FOUR THOUSAND FOUR HUNDRED FORTY US DOLLARS (US $4,440.00) representing complainant's salaries for the unexpired portion of his employment contract;

3. TWO THOUSAND THREE HUNDRED SIXTY NINE SAUDI RIYAL (S.R. 2,369.00) representing the cost of complainant's return airfare;

4. 5% of the aforesaid amounts as attorney's fees.

All other claims of the complainant are dismissed.

SO ORDERED."[3]

Only private respondent I.T. appealed the aforesaid decision of the POEA Adjudication Office to the NLRC Second Division which in turn reversed and set aside the findings and ruling of the former in its Resolution dated March 26, 1991. The NLRC held that -

"x x x x x x x x x

The conclusions that could be inferred on the PAL Ticket is that complainant at that particular time travelled from Saudi Arabia to the Philippines - as to who paid the fare is subject of conflicting allegations; and the Travel Exit Pass, the same being a document of POEA; are proof of the contents thereof - the relevant fact in so far as this case is concerned, is the agreed salary of complainant, $370.00 - not as to whether or not the complainant was underpaid. Thus, the primary evidence from which the Administrator drew his conclusions in the assailed decision is the affidavit of complainant where the affiant was not subjected to cross examination to determine whether or not he is telling the truth and the application (mis-application) of the general principles of law.

Consequently, we find it disconcerning to stamp Our imprimatur of approval in the assailed decision considering (the) quantum of evidence presented vis-a-vis (the) amount involved in the award.

Firstly, I.T. (Int'l) Corp. is a recruitment agency. It is not in the level of the employer itself. At the (sic) most it is an agent of the employer. The application, therefore, of the so called ‘common knowledge that in employer to employee relationship, the former is the one who keep records of payments,' and 'in a better position to present the same' in the present case is akin to stretching the said principle to ridiculous proportions. Both appellant and complainant-appellee stand an (sic) equal footing. No presumptions arises. They both do not have the employment records of the complainant. More serious inquiry should have been resorted to such as the instrument of cross examinating the witnesses presented by the parties, or even the use of clarificatory questions by the Office a quo to the witnesses would have shed light as to who among the parties is telling the truth. But records show that there is none.

Secondly, the POEA Administrator heavily relied upon the principle of law that in illegal termination cases, the burden of proof lies on the employer, and the employer not having presented sufficient evidence to justify the dismissal ergo the dismissal is illegal. The POEA Administrator misread the law. It is only when the employer admits the dismissal, which is not so in this case, that the burden to present proof that the dismissal is for cause hangs on the shoulders of the employer.

Thirdly, considering that the payment of the PAL ticket is at issue and there being no other evidence presented, except their respective bare self-serving and conflicting allegations We find no sufficient evidence to support a conclusion that one party paid for the ticket.

Basic in this jurisdiction is that he who asserts a right must prove it. In labor disputes, the evidence mandated by law are these relevant evidence which a reasonable and unbiased mind would accept to support a conclusion. Failing to do this, We find no basis to the award.

WHEREFORE, premises considered, the assailed decision is set aside and a new one entered dismissing this one.

SO ORDERED."[4]

Dissatisfied, petitioner now come to us and assigns the following as errors committed by the NLRC, to wit:

THE PUBLIC RESPONDENT ERRED IN HOLDING THAT THE AFFIDAVIT OF COMPLAINT CANNOT BE THE BASIS OF TRUTH BECAUSE THE AFFIANT WAS NOT CROSS-EXAMINED.

THE PUBLIC RESPONDENT ERRED IN HOLDING THAT THE COMPLAINANT-PETITIONER WAS NOT ILLEGALLY DISMISSED.

III

THE PUBLIC RESPONDENT ERRED IN HOLDING THAT NEITHER PARTY, THE COMPLAINANT AND RESPONDENT, COULD BE AWARDED REIMBURSEMENT FOR THE PAL TICKET.

The Solicitor General, in his Comment[5] to the petition, joined the petitioner[6] in arguing that although there was a failure to allege grave abuse of discretion against the NLRC, this element of grave abuse of discretion is present in the instant petition. The assailed resolution was issued in gross violation of the settled principle that affidavits suffice as evidence in proceedings before quasi-judicial bodies like the POEA.[7] We find merit in the petition.

At the outset, we note that the instant petition was filed with this Court on May 22, 1991 before the ruling of this Court in the case of the St. Martin Funeral Home vs. NLRC[8] on September 16, 1998 which required that judicial review of labor cases should be filed in the Court of Appeals before the same can be elevated to this Court following the doctrine on hierarchy of courts. The prevailing jurisprudence then holds that judicial review of labor cases by the Supreme Court may only be through a petition for certiorari under Rule 65 of the Rules of Court.[9] Moreover, in the interest of justice, this Court had treated, in a number of cases, as special civil actions for certiorari petitions erroneously captioned as petitions for review on certiorari.[10] It is in this light that we so treat the present petition. Rules of procedure and evidence should not be applied in a very rigid and technical sense in labor cases in order that technicalities would not stand in the way of equitably and completely resolving the rights and obligations of the parties.[11]

Furthermore, while we consider this petition as one for certiorari under Rule 65 of the Rules of Court, it is likewise significant to note that petitioner failed to seasonably file a motion for reconsideration at the NLRC level before recourse to this Court was made. As a general rule, this petition should have been dismissed outright for failure to comply with a condition precedent in order that this petition for certiorari shall lie. The filing of a motion for reconsideration before resort to certiorari will lie is intended to afford the public respondent an opportunity to correct any actual or fancied error attributed to it by way of re-examination of the legal and factual aspects of the case.[12] However, this rule is subject to certain recognized exceptions.[13] Upon careful consideration of the case at bar, we find that this case falls under one of those recognized exceptions, namely, that the assailed order is a patent nullity, as will be shown later.

Anent the first issue, petitioner contends that public respondent NLRC acted with grave abuse of discretion when it considered petitioner's complaint-affidavit as mere hearsay evidence since the petitioner was not cross-examined. Petitioner argues that private respondent I.T. waived its right to cross-examine him when both parties agreed to submit their case for decision before the POEA Adjudication Officer on the basis of each parties' respective position papers, affidavits and other evidence extant on the record below.

Petitioner's argument is well-taken. It must be stressed that labor laws mandate the speedy disposition of cases, with the least attention to technicalities but without sacrificing the fundamental requisites of due process. In this light, the NLRC, like the labor arbiter, (in the case at bar, the POEA Adjudication Officer) is authorized to decide cases based on the position papers and other documents submitted, without resorting to technical rules of evidence.[14]

We quote, with approval, the following observations of the Solicitor General:

“We are constrained to disagree with the ruling of the NLRC.

In the recently decided case of Rabago et. al. vs. NLRC and Philippine Tuberculosis Society, Inc., G.R. No. 82868, August 5, 1991, pp. 8-9, this Honorable Court held:

'We have said often enough that the findings of fact of quasi-judicial agencies which have acquired expertise on the specific matters entrusted to their jurisdiction are accorded by this Court not only respect but finality if they are supported by substantial evidence (Omar K. Al-Esayi and Company, Ltd. Vs. Flores, 183 SCRA 458; Chua vs. NLRC, 182 SCRA 353; Pagkakaisa ng mga Manggagawa vs. Ferrer-Calleja, 181 SCRA 119).'

‘x x x The argument that the affidavit is hearsay because the affiants were not presented for cross-examination is not persuasive because the rules of evidence are not strictly observed in proceedings before administrative bodies like the NLRC, where decisions may be reached on the basis of position papers only. It is also worth noting that ABC has not presented any evidence of its own to disprove the complainant's claim. As the Solicitor General correctly points out, it would have been so easy to submit the complainant’s employment records which were in the custody of ABC, to show that they had served (for) less than one year.’ (underscoring for emphasis)

Thus, it is clear that petitioner's affidavit of complaint may be made the basis of truth even if affiant was not cross-examined."[15]

The fact alone that most of the documents submitted in evidence by an employee were prepared by him does not make them self-serving since they have been offered in the proceedings before the Labor Arbiter (in this case before the POEA Adjudication Officer) and that ample opportunity was given to the employer to rebut their veracity and authenticity[16]. The seriousness of the allegations in the complaint-affidavit in the case at bar cannot just be perfunctorily rejected absent any showing that the petitioner-affiant was lying when he made the statements contained therein. There being none, it was grave abuse of discretion on the part of the NLRC to ignore or simply sweep under the rug the petitioner's complaint-affidavit and conclude that it is a mere hearsay evidence without finding that there was adequate reason not to believe the allegations contained therein. Accordingly, the NLRC ruling that the complaint-affidavit is hearsay because the affiant was not cross-examined has no legal basis because the rules of evidence are not supposed to be strictly observed in proceedings before the NLRC and the POEA Adjudication Office. The NLRC failed to observe this well-entrenched doctrine when this case was brought on appeal before it.

Neither can we warrant the ruling of the NLRC that herein private respondent I.T. may only be considered as an agent of Samir, its foreign principal, and that private respondent I.T. should not be expected to have access to the employment records of its said foreign principal, thereby justifying the latter's non-presentation of the needed documents before the POEA Adjudication Office, and the absolution of I.T. from any liability to petitioner.[17] In so ruling, respondent NLRC disregarded the rule regarding the solidary liability of the local employment agency with its foreign principal in overseas employment contracts. Private employment agencies are held jointly and severally liable with the foreign-based employer for any violation of the recruitment agreement or contract of employment.[18] This joint and solidary liability imposed by law against recruitment agencies and foreign employers is meant to assure the aggrieved worker of immediate and sufficient payment of what is due him.[19] This is in line with the policy of the State to protect and alleviate the plight of the working class. The fact, however, that private respondent I.T. failed to fully air its position was mainly due to its own inaction and negligence when it chose not to present countervailing evidence on the records of salary payments and separation pay it claimed Samir has paid to petitioner. Petitioner, on the other hand, cannot be expected to have the proper facility to produce the same before the POEA Adjudication Officer considering that their relations became sour due to the present charges.

The NLRC's doubts in the factual findings of the POEA Adjudication Officer should not have prompted it to reject outright the contention of the petitioner contained in his complaint-affidavits, position paper and evidence submitted to the POEA Adjudication Office. The NLRC is not precluded by the rules to allow both parties to submit additional evidence to prove their respective claims even on appeal[20] or to order the remand of the case to the administrative agency concerned for further study and investigation upon such issues. Since NLRC relied on the available evidence obtaining in the records of this case, it should have followed the well-settled doctrine that if doubts exist between the evidence presented by the employer (as represented by the local employment agency in this case) and the employee, the doubts must be resolved in favor of the employee.[21]

As regards the issue of petitioner's dismissal from employment, petitioner claims that he was illegally dismissed; that respondent I.T. failed to substantiate its claim that petitioner was repatriated because he (petitioner) was found to have hypertension; and that respondent I.T. has the burden of proving that petitioner was legally dismissed.

We rule for the petitioner.

When the NLRC declared that the burden of proof in dismissal cases shifts to the employer only when the latter admits such dismissal, the NLRC ruled erroneously in disregard of the law and prevailing jurisprudence on the matter. As correctly articulated by the Solicitor General in his Comment to this petition, thus -

"Article 277(b) of the Labor Code puts the burden of proving that the dismissal of an employee was for a valid or authorized cause on the employer. It should be noted that the said provision of law does not distinguish whether the employer admits or does not admit the dismissal.

It is a well-known maxim in statutory construction that where the law does not distinguish, the court should not distinguish (Robles vs. Zambales Chromite Mining Co., 104 Phil. 688).

Moreover, Article 4 of the Labor Code provides:

‘Art. 4. Construction in favor of labor. All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor.'

In Eastern Shipping Lines, Inc. vs. POEA, 166 SCRA 533, this Honorable Court held:

'When the conflicting interest of labor and capital are weighed on the scales of social justice, the heavier influence of the latter must be counterbalanced by the sympathy and compassion the law must accord the underprivileged worker. This is only fair if he is to be given the opportunity- and the right- to assert and defend his cause not as a subordinate but as a peer of management, with which he can negotiate on even plane. Labor is not a mere employee of capital but its active and equal partner.’

Thus, it is clear that petitioner was illegally dismissed by private respondent Samir Maddah.”[22]

Time and again we have ruled that where there is no showing of a clear, valid and legal cause for termination of employment, the law considers the case a matter of illegal dismissal. The burden is on the employer to prove that the termination of employment was for a valid and legal cause. For an employee's dismissal to be valid, (a) the dismissal must be for a valid cause and (b) the employee must be afforded due process.[23]

A review of the record shows that neither of the two (2) conditions precedent were shown to have been complied with by the private respondents. All that private respondent I.T. did was to rely on its claim that petitioner was repatriated by its foreign principal, respondent Samir Maddah, due to hypertension with nary an evidence to support it. In all termination cases, strict compliance by the employer with the demands of both procedural and substantive due process is a condition sine qua non for the same to be declared valid.[24] Under Section 8, Rule I, Book VI of the Rules and Regulations implementing the Labor Code, for a disease to be a valid ground for the dismissal of the employee, the continued employment of such employee is prohibited by law or prejudicial to his health or the health of his co-employees, there must be a certification by a competent public health authority that the disease is of such nature or at such a stage that it cannot be cured within a period of six (6) months, even with proper medical treatment. This rule was correctly applied by the POEA Adjudication Office in its Decision dated December 29, 1989, to wit:

"In so far as the issue of illegal dismissal is concerned, this Office also finds it in the affirmative.

This Office in arriving at the aforesaid conclusion, takes into consideration the express provision of the Labor Code [Art. 277, par. (b)] that expressly provides that the burden of proving that the termination was for a valid or authorized cause shall rest on the employer (respondents in the instant case).

The defense of complainant's medical problems (alleged hypertension of complainant) interposed by respondents to justify the dismissal of the former is totally bereft of merit. The said defense of respondents is not only uncorroborated by documentary evidence but is also not a just or valid cause for termination of one's employment. While an employer (respondents in this case) may validly terminate the services of an employee who has been found to be suffering from any disease, it is authorized only if his continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees (Art. 284, Labor Code). This is not present in the instant case, for there is no finding from a medical practitioner certifying that complainant is really hypertensive."[25]

Since the burden of proving the validity of the dismissal of the employee rests on the employer, the latter should likewise bear the burden of showing that the requisites for a valid dismissal due to a disease have been complied with. In the absence of the required certification by a competent public health authority, this Court has ruled against the validity of the employee’s dismissal.[26] It is therefore incumbent upon the private respondents to prove by the quantum of evidence required by law that petitioner was not dismissed, or if dismissed, that the dismissal was not illegal; otherwise, the dismissal would be unjustified.[27] This Court will not sanction a dismissal premised on mere conjectures and suspicions, the evidence must be substantial and not arbitrary and must be founded on clearly established facts sufficient to warrant his separation from work.[28] We find no cogent reason to depart from the conclusion reached by the POEA Adjudication Office in the case at bar.

We also find merit in the petitioner's claim of refund for his repatriation plane ticket. The record shows that private respondent I.T. failed to controvert this claim of petitioner during the arbitration level at the POEA Adjudication Office. If at all, this belated claim of private respondent I.T., in the absence of proof therefor, and contrary to its Memorandum dated October 16, 1992 that respondent Samir had paid for the repatriation plane ticket of the petitioner, is merely an afterthought that deserves scant consideration from this Court. The POEA thus held that -

"Noteworthy in the instant case is respondent's failure to deny complainant's allegation that he was the one who shouldered the cost of his return airfare in the amount of SR2,369.00. Having failed to deny the same, herein respondents are deemed to have admitted the same. Considering that the complainant in this case was illegally dismissed as mentioned earlier, the herein respondents are therefore liable to the repatriation expenses (return airfare in this case) of the herein complainant in the amount of SR 2,369.00 (per Annex ‘A’).”[29]

The solidary nature of the relationship of respondent I.T., as the local employment agency, and respondent Samir, its foreign principal, vis-a-vis the petitioner does not exempt respondent I.T. from presenting proof of its alleged payment of the repatriation plane ticket. In the absence of proof to the contrary, the evidence of petitioner in that regard, as pointed out by the Solicitor General, merits the favorable consideration of this Court, to wit:

"It should be noted, however, that the only piece of evidence on the issue of payment of return airfare presented by petitioner is a "CERTIFICATION" signed by a certain Allan L. Timbayan, Labor Attache' in Jeddah. Said Certification reads:

'This is to certify that Overseas Contract Worker OMAR SEVILLANA, holder of passport No. DC 0605633, issued on 20 Nov. 1986 at Davao City, sought the assistance of this Office in connection with his employment problem. He stayed as stranded OCW at the Extension Office of the Labor Attache', Consulate General of the Philippines.

'Subject stranded OCW purchased his own ticket No. 07942041113955 from Jeddah to Manila via Karachi. The subject OCW was repatriated on 2 November 1988.

'This certification is issued upon the request of the stranded (sic) OCW for whatever legal purpose it may serve.' (Annex "C", Petition. Underscoring for emphasis).

Against this Certification, private respondents failed to adduce any proof that the return ticket was purchased by the employer. Considering that petitioner was illegally dismissed as earlier discussed, private respondents are, therefore, liable for the repatriation expenses of petitioner.”[30]

The Court in Pacific Maritime Services, Inc. vs. Ranay[31] reiterated the doctrine regarding a claim of payment in labor cases, viz:

"As a general rule, one who pleads payment has the burden of proving it. Even where the plaintiff must allege non-payment, the general rule is that the burden rests on the defendant to prove payment, rather than on the plaintiff to prove non-payment. The debtor has the burden of showing with legal certainty that the obligation has been discharged by payment."

In view of all the foregoing, we hold that the assailed resolution of public respondent NLRC is a patent nullity; and that the same was issued in grave abuse of discretion. The said resolution of public respondent NLRC, being a patent nullity, immediate resort to this Court was justified even without a prior motion for reconsideration therefor.

WHEREFORE, the assailed Resolution dated March 26, 1991 of public respondent National Labor Relations Commission (Second Division) is hereby REVERSED and SET ASIDE; and the Decision dated December 29, 1989 of the POEA Adjudication Office is hereby REINSTATED.

SO ORDERED.

Bellosillo (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.