SECOND DIVISION
G.R. No. 205725, January 18, 2021
MARCELO M. CORPUZ, JR., Petitioner, v. GERWIL CREWING PHILS., INC., Respondent.
D E C I S I O N
GESMUNDO, J.:
Licensed recruitment agencies are subject to a continuing liability to
ensure the welfare of the Filipino workers they deployed abroad. Their
carelessness and wanton disregard of such responsibility that result to
the substitution of employment contracts previously approved by the
Department of Labor and Employment (DOLE), through the Philippine Overseas Employment Administration (POEA), shall render them liable for damages.
WHEREFORE, judgment is hereby rendered ordering respondents to jointly and severally:cralawlawlibraryThe LA based his decision solely on the evidence submitted by petitioner in view of respondent's failure to file a position paper. The LA held that since respondent refused to provide petitioner with medical attendance, the latter was justified in consulting his own personal doctors. Also, both certifications issued by Dr. Balgomera and Dr. Camero showed that petitioner's injury was related to his exposure to toxic and hazardous materials.15SO ORDERED.14
- Pay complainant permanent disability benefit in the amount of $60,000.00;
- Pay complainant sickness allowance in the amount of $1,844.00;
- Pay complainant moral and exemplary damages in the total amount of [P300,000.00]; and
- Pay complainant attorney's fees equivalent to 10% of the total award.
WHETHER OR NOT THE NLRC (FIRST DIVISION) AND THE HONORABLE COURT OF APPEALS (FOURTEENTH DIVISION) COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN RENDERING THE ASSAILED DECISIONS AND DENIED RESOLUTIONS.21Petitioner points to two (2) procedural defects in respondent's appeal before the NLRC: (1) that the appeal was filed out of time because respondent received a copy of the LA Decision on September 30, 2010 but filed the notice of appeal only on October 11, 2011; and (2) that respondent did not post a cash or surety bond.22
Respondent's appeal before the NLRC is not procedurally infirm |
Section 1. Periods of Appeal. - Decisions, resolutions or orders of the Labor Arbiter shall be final and executory unless appealed to the Commission by any or both parties within ten (10) calendar days from receipt thereof; and in case of decisions, resolutions or orders of the Regional Director of the Department of Labor and Employment pursuant to Article 129 of the Labor Code, within five (5) calendar days from receipt thereof. If the 10th or 5th day, as the case may be, falls on a Saturday, Sunday or holiday, the last day to perfect the appeal shall be the first working day following such Saturday, Sunday or holiday.Respondent received a copy of the LA Decision on September 30, 2010 and therefore had until October 10, 2010 to file an appeal to the same. Since October 10, 2010 fell on a Sunday, it had until October 11, 2010 to file its appeal. Hence, respondent submitted its appeal within the reglementary period.x x x x (emphasis supplied)
Petitioner is not entitled to
disability benefits; Failure to submit to postemployment medical
examination was fatal to his cause |
3. Upon sign off from the vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has been assessed by the company-designated physician but in no case shall this period exceed one-hundred twenty (120) days.Dionio v. ND Shipping Agency and Allied Services, Inc.35 succinctly laid down the rules relating to the mandatory post-employment medical examination under paragraph 3, Sec. 20 as follows:chanroblesvirtualawlibrary
For this purpose, the seafarer shall submit himself to a post employment medical examination by a company-designated physician within three working days upon his return except when he is physically incapacitated to do so, in which case a written notice to the agency within the same period is deemed as compliance. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits.
If a doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed jointly between the employer and the seafarer. The third doctor's decision shall be final and binding on both parties. (emphases and underscoring supplied)
[A] seafarer claiming disability benefits is required to submit himself to a post-employment medical examination by a company designated physician within three (3) working days from repatriation. Failure to comply with such requirement results in the forfeiture of the seafarer's claim for disability benefits. There are, however, exceptions to the rule: (1) when the seafarer is incapacitated to report to the employer upon his repatriation; and (2) when the employer inadvertently or deliberately refused to submit the seafarer to a post employment medical examination by a company-designated physician. Moreover, it is the burden of the employer to prove that the seafarer was referred to a company-designated doctor.36 (emphases supplied; citation omitted)Herein petitioner claims that he went to respondent's office on September 10, 2009, the day following his repatriation, but respondent, through CEO Valdez, refused to refer him to the company-designated physician.
[Section 20-B(3) of the 2000 POEA-SEC] has been interpreted to mean that it is the company-designated physician who is entrusted with the task of assessing the seaman's disability, whether total or partial, due to either injury or illness, during the term of the latter's employment. Concededly, this does not mean that the assessment of said physician is final, binding or conclusive on the claimant, the labor tribunal or the courts. Should he be so minded, the seafarer has the prerogative to request a second opinion and to consult a physician of his choice regarding his ailment or injury, in which case the medical report issued by the latter shall be evaluated by the labor tribunal and the court, based on its inherent merit. For the seaman's claim to prosper, however, it is mandatory that he should be examined by a company-designated physician within three days from his repatriation. Failure to comply with this mandatory reporting requirement without justifiable cause shall result in forfeiture of the right to claim the compensation and disability benefits provided under the POEA-SEC.39 (emphasis supplied; citations omitted)To reiterate, the three-day period from return of the seafarer or signoff from the vessel, whether to undergo a post-employment medical examination or report the seafarer's physical incapacity, should always be complied with to determine whether the injury or illness is work-related.40 Hence, petitioner's failure to comply with the mandatory reporting requirement resulted in the forfeiture of his right to claim disability benefits and proved fatal to his cause.
Respondent is liable to pay moral and exemplary damages, and attorney's fees |
SEC. 10. Money Claims. - Notwithstanding any provision of law to the contrary, the Labor Arbiters 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 the complaint, the claims arising out of an 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 cases of Interorient Maritime Enterprises, Inc. v. National Labor Relations Commission (Interorient)44 and Becmen Service Exporter and Promotion, Inc. v. Spouses Cuaresma (Becmen)45 affirm the continuing responsibility of recruitment agencies in ensuring the welfare and safety of overseas Filipino workers. In Interorient, the Court held that the employer has the obligation to ensure the safe return of a distressed worker.46 In Becmen, the Court stressed that recruitment agencies are expected to extend assistance to migrant workers, especially those who are in distress.47 We explained:chanroblesvirtualawlibrary
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 the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to be filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the recruitment/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.x x x x (emphases supplied)
Under Republic Act No. 8042 (R.A. 8042), or the Migrant Workers and Overseas Filipinos Act of 1995, the State shall, at all times, uphold the dignity of its citizens whether in country or overseas, in general, and Filipino migrant workers, in particular. The State shall provide adequate and timely social, economic and legal services to Filipino migrant workers. The rights and interest of distressed overseas Filipinos, in general, and Filipino migrant workers, in particular, documented or undocumented, are adequately protected and safeguarded.We also ruled in Becmen that the acts and omissions of the foreign principal and the recruitment agencies on the plight of the migrant workers and their families ran against public policy. Their indifference undermined and subverted the interest and general welfare of our Filipino workers abroad who are entitled to full protection under the law. As such, they shall be liable to pay moral and exemplary damages, as well as attorney's fees.x x x x
Thus, more than just recruiting and deploying OFWs to their foreign principals, recruitment agencies have equally significant responsibilities. In a foreign land where OFWs are likely to encounter uneven if not discriminatory treatment from the foreign government, and certainly a delayed access to language interpretation, legal aid, and the Philippine consulate, the recruitment agencies should be the first to come to the rescue of our distressed OFWs since they know the employers and the addresses where they are deployed or stationed. Upon them lies the primary obligation to protect the rights and ensure the welfare of our OFWs, whether distressed or not. Who else is in a better position, if not these recruitment agencies, to render immediate aid to their deployed OFWs abroad?48 (emphasis supplied; citations omitted)
Respondents-appellants GERWIL CREWING PHILS., INC. and MR. ROMMEL S. VALDEZ, ET AL., the former a domestic corporation, are engaged in the business of manning and crewing seafarers.Notably, respondent deployed petitioner to work on board MT Azarakhsh while the foreign principal, Echo Cargo, was under probationary status and under an extended accreditation. However, the Court finds it disturbing that after petitioner's deployment on August 5, 2008 until sometime after the filing of the complaint on April20, 2010, respondent did not even have an iota of information regarding his status. It did not even attempt or seek out information about the worker that it recruited and deployed after the foreign principal failed to complete its accreditation. Palpably, this fell short of the agency's responsibility to continuously ensure petitioner's welfare and safety while deployed overseas.
Complainant-appellee Corpuz was hired as Able Seaman and was deployed last August 5, 2009 through respondent agency, Gerwil under the principal, Echo Cargo & Shipping LLC, represented by Ms. Rosalie S. Cortes.
During that time of hiring and deployment of appellee Corpuz, the principal Echo Cargo was under probationary standing with appellant Gerwil. The extension of the accreditation of Echo Cargo was not granted for its failure to submit the required documents. For which reason, its agent Ms. Cortes decided to pull out Echo Cargo with Gerwil and transfer the same to other local agencies.
Appellants Gerwil and Valdez have not heard any news from appellee in regard to his status on board. In fact, they were never notified about the events that transpired until such time that they received a copy of the complaint with the NLRC.x x x x52
The Seabased Overseas Filipino Worker (OFW) Information57 also contained similar entries with further information that petitioner was deployed on August 5, 2008.
Name of Agent: GERWIL CREWING PHILIPPINES, INC. For and in behalf of: ECHO CARGO AND SHIPPING LLC x x x x Name of vessel: MT AZARAKHSH x x x x 1.1. Duration of Contract: 12 MONTHS 1.2. Position: ABLE SEAMAN[56 (emphases supplied)
SEC. 6. Definition. - For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any person, whether a non-licensee, non holder, licensee or holder of authority:Clearly, respondent's inaction or omission was against existing law and public policy as it perpetrated the illegal and pernicious practice of substituting the POEA-approved contract to the detriment of the Filipino worker. Having knowingly reneged on its obligation to ensure the welfare of petitioner while deployed abroad, and in allowing the substitution of a previously approved POEA contract, respondent should be held liable.x x x x
(i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment;x x x x (emphases supplied)
Endnotes:
* Designated as additional member per Special Order No. 2797 dated November 5, 2020; on official leave.
1Rollo, pp. 61-68; penned by Associate Justice Japar B. Dimaampao with Associate Justices Elihu A. Ybañez and Victoria Isabel A. Paredes, concurring.
2 Id. at 69-70.
3 Id. at 162-171; penned by Commissioner Perlita B. Velasco with Presiding Commissioner Gerardo C. Nograles and Commissioner Romeo L. Go, concurring.
4 Id. at 172-174.
5 Id. at 266-272; penned by Labor Arbiter Adolfo C. Babiano.
6 "MT Azarakhsm" in some parts of the rollo.
7Rollo, p. 62.
8 Id.
9 Id.
10 Id. at 62-63.
11 Id. at 63.
12 Id.
13 Id. at 62.
14 Id. at 272.
15 Id. at 270-271.
16 Id. at 170.
17 Id. at 167-169.
18 Id. at 169-170.
19 Id. at 172-174.
20 Id. at 64-67.
21 Id. at 39.
22 Id. at 56.
23 Id. at 44.
24 Id. at 40-54.
25 Id. at 54-55.
26 Id. at 334.
27 Id. at 338-339.
28 Id. at 349-350.
29 Id. at 357-358.
30 Id. at 369-370.
31 Id. at 222.
32Ceriola v. Naess Shipping Philippines, Inc., 758 Phil. 321, 333 (2015).
33Nisda v. Sea Serve Maritime Agency, 611 Phil. 291, 315 (2009).
34Jebsens Maritime, Inc. v. Undag, 678 Phil. 938, 945 (2011).
35 G.R. No. 231096, August 15, 2018.
36 Id.
37Rollo, pp. 263-265.
38 671 Phil. 56 (2011).
39 Id. at 65-66.
40Ceriola v. Naess Shipping Philippines, Inc., supra note 32, at 335.
41Serrano v. Gallant Maritime Services, Inc., 601 Phil. 245, 281 (2009); citations omitted.
42 Section 2(e).
43Industrial Personnel and Management Services, Inc. v. de Vera, 782 Phil. 230, 241 (2016).
44 330 Phil. 493 (2009).
45 602 Phil. 1058 (2009).
46 Supra note 44, at 510.
47 Supra note 45, at 1076.
48 Id. at 1075-1079.
49 Section 1(e), Rule II, Part II, 2003 POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers.
50 See third paragraph of Section 10. R.A. No. 8042.
51Rollo, pp. 253-262.
52 Id. at 255-256.
53 Id. at 321.
54 Id.
55 Id. at 300.
56 Id.
57 Id. at 301.
58 Id. at 62.
59 Id. at 300.
60 Supra note 45.
61 Id. at 1081.
62 ARTICLE 2229. Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages.
63 ARTICLE 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except:
(1) When exemplary damages are awarded; (2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; (3) In criminal cases ofmallcious prosecution against the plaintiff; (4) In case of a clearly unfounded civil action or proceeding against the plaintiff; (5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs plainly valid, just and demandable claim; (6) In actions for legal support; (7) In actions for the recovery of wages of household helpers, laborers and skilled workers; (8) In actions for indemnity under workmen's compensation and employer's liability laws; (9) In a separate civil action to recover civil liability arising from a crime; (10) When at least double judicial costs are awarded; (11) In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered.
In all cases, the attorney's fees and expenses of litigation must be reasonable.
64Nacar v. Gallery Frames, 716 Phil. 267 (2013). cralawredlibrary