MONALIZA PLACEMENT AGENCY, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION (SECOND DIVISION)AND GIL B. HERNANDEZ, RESPONDENTS.
DACUDAO, J.:
On November 6, 2003, the private respondent Gil B. Hernandez, as plaintiff, instituted before the NLRC Arbitration Branch a complaint4 for illegal dismissal, payment of salary for the unexpired portion of contract, moral and exemplary damages, and attorney’s fees. Named defendants therein were the herein petitioner Monaliza Placement Agency (or simply Monaliza), and Catherine Khaled (the petitioner’s president), as well as the Alsadara Office Recruitment Bureau/Sultan Alqahtani Transport Establishment.
After conciliation efforts failed, the Labor Arbiter directed the parties to submit their position papers and their replies on March 1, 2004 and March 8, 2004, respectively, with the stern warning that no extension of time shall be allowed for such submittal.
On March 1, 2004, the therein plaintiff Gil B. Hernandez submitted his Position Paper.5 He asserted thereunder that sometime in March 2003, he was recruited by therein defendant Monaliza and therein defendant Catherine Khaled to work as a cargo driver/trailer driver for their foreign principal, the Alsadara Office Recruitment Bureau/Sulatan Alqahtani Transport Establishment, in Dammam, Kingdom of Saudi Arabia; that he paid Catherine Khaled P12,000.00 by way of placement fee, P2,600.00 as medical fees and P1,000.00 for trade test; that under his contract of employment, he was given to understand that he would receive a basic monthly salary of US$340.00 for a period of two (2) years, plus 150% of his basic salary for overtime work, and 200% of his basic salary for work performed during designated holidays; and that he departed from Manila on March 11, 2003.6
He further averred that when he arrived in Dammam, Kingdom of Saudi Arabia (KSA), he was initially assigned as a laborer for one (1) month, and was paid only 900 Saudi Rials, or US$240.00 for that period; that he was later assigned as trailer driver in Jeddah, KSA for two (2) months; that thereafter he was sent back to Dammam, KSA, where he was, for the next four (4) months, made to work for 15 hours a day without day-off, at a monthly salary of 900 Saudi Rials; that in October, 2003, he reminded his foreign employer about the terms of his employment contract which were not being followed or observed, but his foreign employer offered no explanation; that on October 15, 2003, without telling him the cause or reason, his foreign employer’s representative, one Saeed Alqahtani, told him not to report for work anymore as he would be sent home; and that on October 21, 2003, despite his pleas, he was indeed sent home to the Philippines.7
In amplification of his complaint, therein plaintiff submitted his Sworn Statement (Annex “A”), the OFW Information Sheet issued by the POEA (Annex “B”), the Employment Contract issued to him by his foreign employer (Annexes “B-1” to “B-5”), the Accident Insurance Policy (Annex “C”); and the OFW Information issued by the POEA (Annex “D”)8
On the other hand, instead of submitting their position paper on March 1, 2004, therein defendants filed a Motion for Extension to submit the position paper, praying that they be given an additional period of ten (10) days, or up to March 11, 2004, to do so.
Holding that the parties had been warned that no extension shall be allowed, the Labor Arbiter, via an Order dated March 1, 2004,9 denied the motion for extension, and considered the case submitted for decision based on the pleadings and the evidence on record.
Notwithstanding the above Order, however, therein defendants filed their Position Paper (with Annexes)10 on March 11, 2004.
On March 19, 2004, Labor Arbiter Nieves Vivar-de Castro gave judgment,11 decretally disposing, as follows:
“Wherefore, all Respondents, Catherine Khaled, Monaliza Placement Agency and its corporate officers or directors or partners/owners as the case maybe are hereby adjudged jointly and solidarily liable to pay complainant’s salaries for 6 months in the amount of US$2,040 ($340 x 6 months), to pay his salary differentials of $500.00, and unpaid overtime service in the amount of US$1,483.00; to refund complainant’s placement fee of P12,000.00 plus 12% interest per month at the existing exchange rate at the time of payment.
“SO ORDERED.
“19 March 2004.“(SGD.) HON. NIEVES VIVAR-DE CASTRO“Labor Arbiter”12
The Labor Arbiter ratiocinated:
“Complainant’s assertions being undisputed aside from the fact that those are supported by testimonial and documentary evidence, are deemed well established, from which we can safely infer that complainant was indeed illegally dismissed for reason that he complained about the respondents’ non-compliance with the provisions of the contract, vis-a-vis the non-payment of overtime pay for services performed after the regular 8 working hours.
“Premises considered, complainant is indeed entitled not only to his claim for overtime pay but also to salary differentials, having been suffered to work 15 hours a day for four months but was only paid 900 Saudi Rials a month, computed as follows:
“US$340-$240 (900 Saudi Rials) = $100 x 4 mos.
“=$400.00 underpayment on basic pay for 4 months
“+$100.00 for the 1st mo.“$340/26 days/8 hours =$1.63 per hour x 7 hours overtime/day + 25% “=$11.41 + $2.85 “=$14.26 unpaid overtime per day x 26 days x 4 months “=$14.26 unpaid overtime per day x 26 days x 4 months “=$1,483.00 unpaid overtime for 4 months “Total US$500.00 salary differentials + US$1,483.04 o.t. for the last 4 months ————————————— “US$1,933.04 “Regarding the illegal dismissal, it is beyond doubt that complainant was dismissed for no just or authorized cause at all, and without due process, henceforth he is entitled to the unexpired portion of his 2 years contract or to a maximum of 6 months salary as provided for under Section 10, Migrant Workers and Overseas Filipinos Act of 1995 (R.A. 8042), viz:
‘Section 10. Money claims – Notwithstanding any provision of law to the contrary, the Labor Arbiter of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of complaint, the claims arising out of the employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages.
‘The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provision shall be incorporated in all the contracts of overseas employment and shall be a condition precedent for its approval. The performance bond to be filed by the recruitment/placement agency, as provided for by law, shall be answerable for all the money claims or damages that may be awarded to the workers. If the recruitment or placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages.
‘Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment, or modification made locally or in a foreign country of the said contract.
‘Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages under this Section shall be paid within four (4) months from the approval of the settlement by the appropriate authority.
‘In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the worker 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 contract or for three months for every year of the unexpired term, whichever is less.’
“Where the law is clear, there is nothing more left but application thereof without any attempted or strained interpretation. Complainant is entitled to nothing less than payment of salaries for the unexpired portion, and refund of placement fees plus 12% interest per annum.”13
From this judgment, the therein defendants appealed14 to the public respondent NLRC, thereunder arguing that: “(1) The Honorable Labor Arbiter committed serious error amounting to lack or excess of jurisdiction in disregarding the uncontroverted documentary evidence submitted by them; and (2) The Honorable Labor Arbiter committed serious error, amounting to lack or excess of jurisdiction, in holding them liable as charged.”15
But via a Decision dated July 7, 2005,16 the NLRC dismissed the appeal and affirmed with modification the judgment of the Labor Arbiter, thus:
“In respondents-appellants’ appeal, they charged the Labor Arbiter with committing serious errors when she disregarded the former’s documentary evidence and holding respondents liable for money claims.
“From the records, it plainly appears that the Labor Arbiter a quo never considered the evidences of respondents-appellants in their position paper with annexes for having been filed late, as it was forwarded to the Labor Arbiter’s office way beyond the deadline set for the filing thereof.
“Pursuant to our authority and in order not to cause any further delay in the disposition of the issues in this case, We shall take cognizance of respondents’ arguments and evidence.
“As stated in Bristol Laboratories Employees Association vs. NLRC (187 SCRA 118), ‘no grave abuse of discretion may be attributed to the NLRC for having considered additional documentary evidence on appeal to prove breach of trust and confidence as bases for the dismissal of the Petitioner.’
“Respondents asseverate that the Labor Arbiter disregarded the contents of their position paper and the documentary evidence appended thereto which are as follows:“a) that the complainant voluntarily requested for the repatriation because he felt homesick; and
“(b) that complainant has no any monetary claims against the respondents as he had categorically stated to have received, all his claims from the establishment until October 18, 2003. Under the Financial Statement (Annex ‘A’ of respondents’ position paper) complainant received the following:
“Monthly salary – 450.00 “Vacation Leave – 533.00 “Service Award – 266.00 “Additional Fee – 485.00 “TOTAL P1,734.00 SR
“Deductions – “Penalty – 100.00 “Total Deductions – 2,000.00 “Complainant also received a check of SR1000 for IQAMAH NO. 2192784441 (Annex ‘B’, ibid.).
“Complainant’s signing of the Financial Statement was affirmed by Felimon M. Salinas (Annex ‘C’, ibid.).
“The cause of undue repatriation had not been settled by the signing of the Financial Statement. The alleged claim of homesickness of complainant is not in accordance with human experience. For homesickness occurs only during the initial months of one’s sojourn away from his loved ones. Thereafter this feeling is overcome by the primordial desire to earn some money to be sent to his loved ones who were left behind, with the end in view of uplifting their economic plight.
“And it has to be pointed out that this is the paramount resolve of an OFW who leaves the Philippines to work in a foreign land.
“The respondents failed to rebut the claim of complainant that his foreign employer was not living up to its undertaking to pay his salary as specified in his contract. SR900.00 is not equivalent to US$340.00 for it is only about US$240.00.
“And when complainant insisted that he be paid in accordance with the stipulated pay, the foreign employer got irked and thus caused complainant’s undue repatriation. xxx.
“xxx, [i]t was not complainant who sought his repatriation but it was the foreign employer because of complainant’s nagging that he be paid the correct amount of salary as stipulated in his contract. And so We adopt the Labor Arbiter’s discussion when she said:‘Complainant’s assertions being undisputed aside from the fact that those are supported by testimonial and documentary evidence, are deemed well established, from which we can safely infer that complainant was indeed illegally dismissed for reason that he complained about the respondents’ non-compliance with the provisions of the contract, vis-a-vis the non-payment of overtime pay for services performed after the regular 8 working hours.’
“Under Section 10 of RA 8042, ‘In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the worker 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 contract or for three months for every year of the unexpired term, whichever is less.’
“As complainant had worked for almost 7 months only and since the term of his contract is for 24 months, complainant must be paid a 6-month unearned salary or US$2,040.00.
“On complainant’s salary differentials, as he was receiving only the equivalent of US$240.00, he was underpaid by US$600.00.
“No grant of overtime pay can be made as complainant, save for his averment that he rendered 15 hours of work for about 4 weeks (sic), failed to substantiate his claim with documentary evidence in support of the allegations made in the complaint. Thus, evidence proving rendition of overtime work is condition sine qua non in order for Us to legally award such claims (Cagampong vs. NLRC, 195 SCRA 533).
“And in the matter of refund of complainant’s placement fee, We agree with the order of the Labor Arbiter that there should be a refund of the sum of P12,000.00 pursuant to RA 8042, Section 10 last paragraph thereof with 12% interest per annum.
“All of the awards in foreign currency shall be payable in peso equivalent at the time of payment.”
“WHEREFORE, premises considered, the appealed decision is modified, and the respondents are ordered to pay jointly and severally in peso equivalent at the time of payment, the following amounts.“1. US$2,040.00 as unearned wages for 6 months;
“2. US$600.00 as salary differentials; and
“3. P12,000.00 plus 12% interest per annum.
“SO ORDERED.
“Tagaytay City, Philippines.
“(SGD.) ANGELITA A. GACUTAN“Commissioner“WE CONCUR:
“(SGD.) RAUL T. AQUINO
“Presiding Commissioner“(SGD.) VICTORIANO R. CALAYCAY
“Commissioner”17
A motion for reconsideration18 of the said Decision was filed by the therein defendants, but this motion was by public respondent denied for lack of merit in its Resolution of October 25, 2005.19
The petitioner is now before Us in this petition for certiorari, imputing against the public respondent NLRC grave abuse of discretion, to wit:
I
PUBLIC RESPONDENT NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN AFFIRMING THE FINDING OF THE LABOR ARBITER THAT THE PRIVATE RESPONDENT WAS ILLEGALLY DISMISSED AND IN CONSEQUENTLY AWARDING THE SAID PRIVATE RESPONDENT US$2,040.00 AS UNEARNED WAGES FOR 6 MONTHS AND P12,000.00 AS REFUND OF PLACEMENT FEE PLUS 12% INTEREST PER ANNUM.
II
PUBLIC RESPONDENT NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AWARDING THE PRIVATE RESPONDENT US$600.00 AS SALARY DIFFERENTIALS.20
The petition will not lie.
We start off with the declaration that we can perceive no grave abuse of discretion, amounting to lack or excess of jurisdiction, in both the challenged Decision and Resolution. We are thus not prepared to overturn the NLRC’s finding that the private respondent was illegally dismissed from employment. Indeed, a careful study of the records would not fail to reveal that the private respondent’s alleged repatriation on October 21, 2003 was not voluntary on his part, but was in fact in the nature of a ploy or contrivance to effect a dismissal without cause.21 The evidence on record clearly showed that when private respondent reminded his foreign employer, sometime in October, 2003, about the terms (particularly, the stipulated monthly salary of his employment contract) which were not being followed or observed, his foreign employer got irked and told him, through its representative (a certain Saeed Alqahtani), not to report for work anymore as he would be sent home.22 True enough, on October 21, 2003, despite his pleas, he was indeed sent home to the Philippines.23
Further, we find it altogether odd, that after working for almost seven (7) months in the Kingdom of Saudi Arabia, the private respondent would voluntarily ask for his repatriation because of “homesickness”. As aptly observed by the NLRC, “the alleged claim of homesickness of complainant is not in accordance with human experience. For homesickness occurs only during the initial months of one’s sojourn away from his loved ones. Thereafter this feeling is overcome by the primordial desire to earn some money to be sent to his loved ones who were left behind, with the end in view of uplifting their economic plight. And it has to be pointed out that this is the paramount resolve of an OFW who leaves the Philippines to work in a foreign land.”24 Indeed, as the U.S. Supreme Court has remarked in one case, necessity is a powerful master in teaching the duties which it imposes.
We likewise reject the petitioner’s contention that the NLRC gravely abused its discretion when it awarded the private respondent US$2,040.00 as unearned wages for six (6) months, US$600.00 as salary differentials, and P12,000.00 as refund of placement fee, plus 12% interest per annum.
Section 10 of Republic Act No. 8042 provides that “in case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the worker 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 contract or for three months for every year of the unexpired term, whichever is less.” In the instant case, considering that the private respondent had only worked for almost seven (7) months25 because of his premature and unseasonable repatriation; and considering moreover that the term of his employment contract was for two (2) years,26 it is but just and equitable that he be paid his salaries for the unexpired portion of his contract equivalent to his salaries for six (6) months, or US$2,040.00 (US$340 x 6 months). And, as he was illegally dismissed from employment, he must also be fully reimbursed his placement fee of P12,000.00,27 with interest of 12% per annum.
Regarding the salary differentials of US$600.00 awarded to the private respondent, the petitioner maintains that the private respondent had already been paid his salaries in full by its principal (the Alsadara Office Recruitment Bureau/Sulatan Alqahtani Transport Establishment). Some such allegation, however, is not supported by the evidence on record.
A party who alleges payment as a defense has the burden of proving it.28 Specifically with reference to labor cases, the burden of proving payment of monetary claims rests on the employer, the rational being that “the pertinent personnel files, payrolls, records, remittances and other similar documents—which will show that overtime, differentials, service incentive leave and other claims of workers have been paid—are not in the possession of the worker, but in the custody and absolute control of the employer.”29 Here, the documentary evidence (i.e, Financial Statement, Check for SR1000, Affidavit of one Felimon Salinas), adduced by the petitioner do not prove that the private respondent was indeed receiving a monthly salary of US$340.00 as stipulated in his contract of employment. Clearly, since the private respondent had received a monthly salary of only 900 Saudi Rials or US$240.00 for the six (6) full months that he had worked for his foreign employer, he was clearly underpaid by some US$600.00 (US$100 x 6 months).
In sum, we must conclude, as we had begun, that we are unable to perceive any grave abuse of discretion, amounting to lack or excess of jurisdiction, in both the assailed decision and resolution.
UPON THE VIEW WE TAKE OF THIS CASE, THUS, the petition at bench must be, as it hereby is DENIED, and consequently DISMISSED, for lack of merit. Costs against the petitioner.
SO ORDERED.
Carandang, and Perlas-Bernabe, JJ., concur.
1 Penned by Commissioner Angelina A. Gacutan with the concurrence of Presiding Commissioner Raul T. Aquino and Commissioner Victoriano R. Calaycay; Annex “B”, Petition; Rollo, pp. 22-29.
2 Annex “F”, Petition; Id., pp. 42-47.
3 Annex “A”, Petition; Id., pp. 20-21.
4 Annex “C”, Petition; Id., p. 30.
5 Id., pp. 103-113.
6 Rollo, pp. 104-105.
7 Id., p. 105.
8 See Labor Arbiter’s Decision, p. 3; Rollo, p. 44.
9 Annex “D”, Petition; Id., p. 31.
10 Annex “E”, Petition; Rollo, pp. 32-41.
11 Supra, note 2.
12 Rollo, p. 47; Emphasis ours.
13 Rollo, pp. 45-47; Underscoring supplied.
14 Annex “G”, Petition; Id., pp. 48-54.
15 Id., p. 50.
16 Supra, note 1.
17 Rollo, pp. 24-28; Emphasis supplied.
18 Annex “H”, Petition; Id., pp. 59-67.
19 Supra, note 3.
20 Rollo, p. 13.
21 In an illegal dismissal case, the onus probandi rests on the employer to prove with clear and convincing evidence that its dismissal of an employee is for a valid cause. (Litton Mills, Inc. v. Sales, 437 SCRA 488 [2004]; R.P. Dinglasan Construction, Inc. v. Atienza, 433 SCRA 263 [2004]; Concorde Hotel v. CA, 362 SCRA 583 [2001]).
22 Rollo, pp. 112-113.
23 Ibid.
24 See NLCR Decision, p. 5; Rollo, p. 26.
25 Id., pp. 112-113.
26 Id., pp. 114-120, 122.
27 Id., p. 112.
28 Sevillana v. I.T. (International) Corp., 356 SCRA 451 (2001). Far East Bank and Trust Company v. Querimit, 373 SCRA 665 (2002);
29 G & M (Phil.), Inc. v. Batomalaque, 461 SCRA 111 (2005); Villar v. NLRC, 331 SCRA 686 (2000).