Antonio Serrano's employment contract was downgraded after he arrived. He refused to accept the new position and was sent home early. He claimed overtime and leave pay should be included in calculating money owed for the unexpired contract. This is incorrect as overtime and leave pay are separate from salary as defined by regulations.
Antonio Serrano's employment contract was downgraded after he arrived. He refused to accept the new position and was sent home early. He claimed overtime and leave pay should be included in calculating money owed for the unexpired contract. This is incorrect as overtime and leave pay are separate from salary as defined by regulations.
Antonio Serrano's employment contract was downgraded after he arrived. He refused to accept the new position and was sent home early. He claimed overtime and leave pay should be included in calculating money owed for the unexpired contract. This is incorrect as overtime and leave pay are separate from salary as defined by regulations.
Antonio Serrano's employment contract was downgraded after he arrived. He refused to accept the new position and was sent home early. He claimed overtime and leave pay should be included in calculating money owed for the unexpired contract. This is incorrect as overtime and leave pay are separate from salary as defined by regulations.
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Q: Santosa Datuman was deployed to Bahrain after paying the required placement fee.
However, her employer took her passport and instead of working as a saleslady, she was forced to work as a domestic helper contrary to the agreed salary approved by POEA. She worked without compensation for two years because of her employers’ continued failure and refusal to pay her salary despite demand. When she finally returned to the Philippines, she filed a complaint against the local agency that recruited her. Should the suit prosper?
A: YES. Under Section 1 (f), Rule II, Book II of the 1991 POEA Rules and Regulations, the local agency shall assume joint and solidary liability with the employer for all claims and liabilities which may arise in connection with the implementation of the contract, including but not limited to payment of wages, health and disability compensation and repatriation. 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, to assure the aggrieved worker of immediate and sufficient payment of what is due him. This is in line with the policy of the state to protect and alleviate the plight of the working class (Datuman v. First Cosmopolitan Manpower, G.R. No. 156029, November 14, 2008).
Q: Antonio Serrano was hired by Gallant Maritime Services, Inc. and Marlow Navigation Co., Inc., under a POEA-approved contract of employment for 12 months, as Chief Officer, with a monthly salary of US$1,400, and $700 per month overtime pay, and 7 days paid vacation leave per month. On the date of his departure, he was constrained to accept a downgraded employment contract upon the assurance and representation of Gallant that he would be Chief Officer by the end of April 1998. Gallant did not deliver on their promise hence he refused to stay on as second Officer and was repatriated to the Philippines, serving only two months and 7 days, leaving an unexpired portion of nine months and twenty-three days. He filed with the Labor Arbiter a complaint for constructive dismissal and for payment of his money claims contending that his overtime and leave pay should form part of the salary basis in the computation of his monetary award, because these are fixed benefits that have been stipulated into his contract. Is he correct?
A: NO. The word salaries in Section 10(5) does not include overtime and leave pay. For seafarers like Serrano, DOLE Department Order No. 33, series 1996, provides a Standard Employment Contract of Seafarers, in which salary is understood as the basic wage, exclusive of overtime, leave pay and other bonuses; whereas overtime pay is compensation for all work "performed" in excess of the regular eight hours, and holiday pay is compensation for any work "performed" on designated rest days and holidays.
By the foregoing definition alone, there is no basis for the automatic inclusion of overtime and holiday pay in the computation of petitioner's monetary award, unless there is evidence that he performed work during those periods. The contract provision guarantees the right to overtime pay but the entitlement to such benefit must first be established. In the same vein, the claim for the day's leave pay for the unexpired portion of the contract is unwarranted since the same is given during the actual service of the seamen (Serrano v. Gallant Maritime Services & Marlow Navigation Co., Inc., G.R. No.167614, March 24, 2009).
Q: Sunace International Management Services (Sunace), deployed to Taiwan Montehermozo as a
domestic helper under a 12-month contract effective Feb. 1, 1997. The deployment was with the assistance of a Taiwanese broker, Edmund Wang, President of Jet Crown International Co., Ltd. After her 12-month contract expired on Feb. 1, 1998, Montehermozo continued working for her Taiwanese employer for two more years, after which she returned to the Philippines on Feb. 4, 2000. Shortly after her return she filed a complaint before the NLRC against Sunace, one Perez, the Taiwanese broker, and the employerforeign principal alleging that she was jailed for three months and that she was underpaid. Should Sunace be held liable for the underpayment for the additional two years that she worked for her Taiwanese employer under the theory of imputed knowledge?
A: NO, the theory of imputed knowledge ascribes the knowledge of the agent, Sunace, to the principal Taiwanese Er, not the other way around. The knowledge of the principal-foreign Er cannot, therefore, be imputed to its agent Sunace.
There being no substantial proof that Sunace knew of and consented to be bound under the 2-year employment contract extension, it cannot be said to be privy thereto. As such, it and its owner cannot be held solidarily liable for and of Montehermozo’s claims arising from the 2-year employment extension (Sunace v. NLRC, G.R. No. 161757, January 25, 2006).
Q: Serrano, a seafarer, was hired by Gallant Maritime and Marlow Navigation Co. for 12 months as Chief Officer. On the date of his departure, he was constrained to accept a downgraded employment contract for the position of Second Officer, upon the assurance that he would be made Chief Officer after a month. It was not done; hence, he refused to stay on as Second Officer and was repatriated to the Phils. He had served only 2 months & 7 days of his contract, leaving an unexpired portion of 9 months & 23 days.
Serrano filed with the LA a Complaint against Gallant Maritime and Marlow for constructive dismissal and for payment of his money claims. The LA rendered a favorable decision to Serrano awarding him $8,770.00, representing his salary for 3 months of the unexpired portion of his contract of employment applying R.A. 8042, Sec 10, par. 5:
Money Claims. - In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of 12% per annum, plus his salaries for the unexpired portion of his employment contract or for 3 months for every year of the unexpired term, whichever is less.
Is the subject clause constitutional?
A: NO. The subject clause contains a suspect classification in that, in the computation of the monetary benefits of fixed-term Ees who are illegally discharged, it imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but none on the claims of other OFWs or local workers with fixedterm employment. The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage.
The clause is a violation of the right of Serrano and other OFWs to equal protection and right to substantive due process, for it deprives him of property, consisting of monetary benefits, without any existing valid governmental purpose.
Furthermore, prior to R.A. 8042, all OFWs, regardless of contract periods or the unexpired portions thereof, were treated alike in terms of the computation of their monetary benefits in case of illegal dismissal. Their claims were subjected to a
