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People vs. Reyes Leave a comment

GR 101127-31, 18 November 1993

FACTS

Lorie Garcia delivered rice to Cresencia Reyes, as accommodation to her friend Manny Cabrera who had no

more stock to sell. Reyes issued 6 checks for 6 orders delivered in different dates. Only 3 of the 6 checks were

made good, the other 3 were returned by the bank due to insufficient funds. Garcia notified Reyes of the

dishonor and the latter promised to pay her their total value. Despite demands, Reyes failed to make good the

checks or replace them with cash. 3 criminal cases for violation of BP 22 and 2 criminal cases for estafa were

filed against Reyes.

ISSUE

Whether a single act of issuing a check may entail criminal liability of both violation of BP 22 and Article 315

of the Revised Penal Code (Estafa).

HELD

A single criminal act may give rise to a multiplicity of offenses and where there is a variance or differences

between the elements of an offense in one law and another law. The gravamen of the offense punished by BP

22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentment for

payment; and act deemed pernicious and inimical to public welfare. BP 22 applies even where the dishonored

checks were issued merely in the form of a deposit or a guaranty and not as actual payment, as the law does not

make any distinction. On the other hand, the checks were not payment for a pre-existing obligation nut as

consideration for each shipment of rice. The checks were issued as an inducement for the surrender by the

party deceived of her property. Reyes made good 3 of the checks, giving assurance to Garcia that the

remaining checks were fully funded. Her failure to make good the checks raised the prima facie inference of

deceit.

G.R. No. 105204 March 9, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.THELMA REYES and NICK REYES, accused, THELMA REYES accused-appellant.

MENDOZA, J.:

This is an appeal from the decision of the Regional Trial Court of Laguna, Branch 35, the dispositiveportion of which reads as follows:
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WHEREFORE, the prosecution having established the guilt of the accused ThelmaReyes beyond reasonable doubt of Illegal Recruitment defined and penalized under

Article 38, P.D. No. 442 as amended, the Court hereby sentences said accused tosuffer a penalty of Reclusion Perpetua and to pay a fine in the amount ofP100,000.00 and to indemnify Rosalino Bitang and Fabian Baradas, Mr. de Castro,Lorenzo Blanza and Ramon Mendoza the sum of P45,000.00 and to pay the costs.

Appellant Thelma Reyes was charged together with her husband Nick Reyes, but the latter was atlarge and so has remained up to now. Consequently, the trial proceeded only with respect to ThelmaReyes in view of her plea of not guilty.

The prosecution's first witness, Rosalino Bitang, testified that sometime in 1985, he and five others(Lorenzo Blanza, Fabian Baradas, Edgardo Garcia, Ramon Mendoza and Dionisio de Castro) wentto the house of the appellant in Los Baos, Laguna, to apply for employment abroad; that he gaveP5,000 to Nick Reyes as downpayment for the recruitment fees; that Nick Reyes handed the moneyto his wife Thelma Reyes, and afterward issued a receipt (Exh. A), which reads:

RECEIPT

RECEIVED from MR. RIZALINO BITANG the amount of FIVE THOUSAND(P5,000.00) PESOS, Philippine Currency.

Manila, September 19, 1985.

(SGD.) NICK N.REYES, SR.

Bitang testified that on January 14, 1986, he and his companions paid P34,000.00 more to thespouses through Dionisio de Castro. Of this amount, P8,500.00 was for his (witness Bitang's)placement fee, while the balance was for payment of his companions' fees. As before Nick Reyes

received the amount and gave it to his wife, Thelma Reyes, after which he issued a receipt (Exh. B)which reads:

RECEIPT

RECEIVED from MR. DIONISIO DE CASTRO the amount of THIRTY FOURTHOUSAND (P34,000.00) Pesos, Philippine Currency for the following: EdgardoGarcia Ramon Mendoza Lorenzo Blanza, Fabian Barradas, and Rosalino Bitang.

Manila, January 14, 1986.

(SGD) NICHOL

REYES SR.

According to complainant, Nick Reyes promised to notify them as soon as they were accepted foremployment so that they could leave for abroad, but this promise was not fulfilled. He said that hechecked with the Philippine Overseas Employment Administration (POEA) and found out that thespouses were not licensed recruiters. A certification to this effect was issued to him by the POEA.(Exh. C)


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The other complainant Fabian Baradas also testified. He stated that he was introduced to ThelmaReyes sometime in September, 1985 at Lemery, Batangas, while the latter was recruiting workersfor deployment in Saudi Arabia.

On several occasions between September and December, 1985, he and several others went toappellant's house at Junction, Los Baos Laguna for overseas employment and were required to

submit travel documents, such as passports, birth certificates and NBI clearances and to pay variousamounts of money.

On January 9, 1986, he gave P6,000.00 to Nick and Thelma Reyes, through his godfather Dionisiode Castro, for which Nick Reyes issued to him a receipt (Exh. E), reading:

RECEIPT

Received from Mr. Dionisio de Castro the amount of Six Thousand (P6,000.00)Pesos, Philippine Currency.

Manila, January 9, 1986.

(SGD.) NICK N.REYES

On January 14, 1986, he paid the additional amount of P12,000.00 to Reyes through Dionisio deCastro as evidenced by Exh. B. The money was supposed to cover the cost of the processingpapers. However, as no job was forthcoming, he went to the POEA to inquire, and, like RosalinoBitang, he learned that the spouses were not licensed recruiters.

The complainants both testified that as soon as they obtained the POEA certification that appellantand her husband were not licensed to recruit, they demanded from the spouses the return of theirmoney and when the latter did not give back their money, they filed the complaint in this case.

Only the appellant Thelma Reyes testified in her behalf. She claimed that she met the witnessesBitang and Baradas only when they were looking for her husband at their house in Los Baos,Laguna, between March and May of 1986. She denied having met them before.

She admitted that the receipts (Exhs. A, B and E) were all written and signed by her husband, butshe denied she had anything to do with her husband's activities. She said they had been estrangedsince March 1986 precisely because she did not approve of her husband's illegal activities. Sheclaimed that she had told her husband that, even though they were poor, they could live on theirearning and the monthly support of P10,000.00 which they were receiving from her mother-in-lawwho lived in the United States.

According to appellant, she and her husband saw each other only occasionally, whenever theyvisited their children in Los Baos where they were studying because she lived in Singalong, Manila.She presumed that her husband had told complainants to go to the house in Los Baos which theywere merely renting for their children and that she was included in the complaint only because herhusband could not be located.

On cross-examination she admitted that there were fourteen (14) other cases of Illegal Recruitmentfiled and/or pending against her and her husband in different courts of Manila and claimed that someof the cases had been dismissed or settled after she had refunded the money of the complainants.


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Testifying on rebuttal for the prosecution, Rosalino Bitang stated that it was Thelma Reyes herselfwho gave the job applicants the address and sketch of their house in Los Baos, Laguna, and thatshe represented to him that she was negotiating for job placements abroad. Bitang reiterated thatmoney paid to Nick Reyes was given to Thelma Reyes who counted it before Nick Reyes issuedreceipts.

On the basis of the parties' evidence, the trial court found Thelma Reyes guilty of illegal recruitmentand sentenced her as stated in the beginning. Hence this appeal.

Appellant claims that the trial court erred

1. IN FINDING THAT THE PROSECUTION HAS MARSHALLED THE QUANTUMOF EVIDENCE SUFFICIENT TO CONVICT THE ACCUSED OF THE CRIME OFILLEGAL RECRUITMENT UNDER ARTICLE 38, P.D. NO. 442.

2. IN NOT CONSIDERING THE FACT THAT THERE ARE ONLY TWOCOMPLAINANTS IN THE INFORMATION FILED ON DECEMBER 11, 1986

AGAINST THE ACCUSED HENCE THEY CANNOT BE PROSECUTED UNDER

ARTICLE 38, P.D. NO. 442.

3. IN GIVING CREDENCE TO THE VERBAL TESTIMONIES OF PRIVATECOMPLAINANTS RATHER THAN THE DOCUMENTARY EVIDENCE.

We shall now deal with these contentions of appellant.

First. Appellant contends that the testimonies of Bitang and Baradas are insufficient to sustainconviction. She contends that Dionisio de Castro, who allegedly advanced P34,000.00 for thecomplainants and their companions, should have been presented to corroborate the claim of theclaimants.

The contention is without merit. To be sure, an accused can be convicted on the strength of thetestimony of a single witness, if such testimony is credible and positive and produces a convictionbeyond reasonable doubt.1That the witness is also the complainant in a case makes little difference aslong as the court is convinced beyond doubt that the witness is telling the truth. For instance,in Hernandez v.Court of Appeals2this Court held:

Petitioner claims that the decision of the trial court is not supported by the evidence,which is contrary to the findings of the Court of Appeals that said decision is "inaccordance with law and the evidence" (Rollo,p. 12). He points out that the appellate court should not have believed the trial court'sconclusion that "the sole testimony of the offended party would have sufficed tosustain her assertions" (Rollo, p. 47). He claims that self-serving declarations of aparty favorable to himself are not admissible and that none of the alleged witnesses

to the transactions were presented.

The common objection known as "self-serving" is not correct because almost alltestimonies are self-serving. The proper basis for objection is "hearsay" (Wenke,Making and Meeting Objections, 69).

Petitioner fails to take into account the distinction between self-serving statementsand testimonies made in court. Self-serving statements are those made by a partyout of court advocating his own interest; they do not include a party's testimony as a


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witness in court (National Development Co. v. Workmen's CompensationCommission, 19 SCRA 861 [1967]).

Self-serving statements are inadmissible because the adverse party is not given theopportunity for cross-examination, and their admission would encourage fabricationof testimony. This cannot be said of a party's testimony in court made under oath,

with full opportunity on the part of the opposing party for cross-examination.

It is not true that none of the alleged witnesses to the transactions was presented incourt (Rollo, p. 13). Yolanda Dela Rosa, an eye-witness to some of the transactions,testified for the prosecution. Assuming that Dela Rosa was not presented as awitness, the testimony of de Leon sufficed to sustain the conviction of petitioner. Theconviction of an accused may be on the basis of the testimony of a single witness(People v. Rumeral, 200 SCRA 194 [1991]). In determining the value and credibilityof evidence, witnesses are to be weighed, not counted (People v. Villalobos, 209SCRA 304 [1992]).

In the case at bar, the trial court gave weight to the testimonies of complainants because,

Except for the denial of accused Thelma Reyes that she has nothing to do with therecruitment of the complaining witnesses as well as the collection of the amount fromthem, said accused failed to sufficiently overthrow the convincing testimony of thecomplaining witnesses that accused Thelma Reyes was present and even countedthe money evidenced by Exhibit[s] "A" and "B" after her husband hands it to her andthat her husband Nick Reyes who issued the receipts to the complainants.

Moreover, when the issue is the credibility of witnesses, appellate courts will in general not disturbthe findings of the trial court unless certain facts or circumstances of weight have been overlooked,misunderstood or misapplied which, if considered, might affect the result of the case. This isbecause the trial court heard the testimony of the witnesses and observed their deportment andmanner of testifying during the trial.3

With respect to the fact that Dionisio de Castro was not presented to testify, it is sufficient to say thatthere was no necessity for this because there is no question that the amount of P34,000.00 which hehad advanced for the complainants and others was received by Nick Reyes.

Second. Appellant contends that the receipts constitute the best evidence to show that only NickReyes received the amounts stated therein because only his signature appears on the receipts. Thatthe receipts were signed by Nick Reyes alone only proves that it was to him that the amounts werepaid. What, on the other hand, complainants are saying is that appellant is guilty because she andher husband, conspiring together, acted and made them believe that they were licensed recruiters. Ifso, the acts of the husband were likewise those of her. Indeed, the evidence shows that afterreceiving the amounts from complainants, Nick Reyes handed the money paid to the appellant and

that Nick Reyes issued the receipts in question only after appellant Thelma Reyes had counted it.

Appellant claims that she and her husband separated in 1985 precisely because she did not want tobe involved in his illegal activities. This seems to be us to be a convenient way to dissociate herself,but her mere claim is not enough to overcome the evidence of the prosecution. If there was anyonewhose testimony needed corroboration it was appellant.

Taking another tack, appellant points out that complainants cannot explain why the purpose forwhich payment was made is not stated in the receipts nor why the receipts purport to have been


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issued in "Manila" and not in Los Baos where they said they had made all the payments. Sheargues that if the illegal recruitment was made in Manila, then the Regional Trial Court of Lagunahad no jurisdiction to try the case.

The circumstances pointed out by appellant only underscores the deviousness of appellant and herhusband. Complainants have an elementary education only. It is not for them but for appellant

and her husband to explain these circumstances because it was the latter who made-the receipts.It is not far fetched that they made the receipts this way precisely to create doubt as to their realimport. It is enough that complainants positively identified the appellant and her husband as havingillegally recruited them and collected money from them. Their testimonies have not beensuccessfully rebutted by the lame denial of appellant.

Third. Appellant contends that in any event the testimonies of the two complainants could not be thebasis for a finding of illegal recruitment on a large scale and for imposing the penalty of lifeimprisonment on her. The Labor Code prescribes the penalty of life imprisonment for illegalrecruitment when committed on a "large scale." Art. 38 (b) of the Code provides:

(b) Illegal recruitment when committed by a syndicate or in large scale shall be

considered an offense involving economic sabotage and shall be penalized inaccordance with Article 39 hereof.

And Art. 39 (a) provides:

Art. 39. Penalties. (a) The penalty of life imprisonment and a fine of One HundredThousand Pesos (P100,000) shall be imposed if illegal recruitment constituteseconomic sabotage as defined herein.

We agree with this contention.

In this case the information against appellant mentioned only the two complainants Fabian Baradas

and Rosalino Bitang as having been illegally recruited by appellant and her husband. The trial Court,however, held appellant guilty of illegal recruitment on a large scale because aside from Baradasand Bitang, appellant and her husband allegedly recruited others, namely, Lorenzo Blanza, EdgardoGarcia, Ramon Mendoza, and Dionisio de Castro.

This is error. To be sure, Blanza and Garcia, according to complainant Baradas were able to obtainoverseas employment. On the other hand, with respect to De Castro there is no evidence that he,too, had been illegally recruited by the spouses. What appears in the record is that he advanced theamount of P34,000.00 in behalf of the complainants and the three others. Only two, therefore, hadbeen illegally recruited.

There are, it is said, 14 other cases filed pending in the courts against the accused for illegalrecruitment. These cases cannot be taken into account for the purpose of Art. 38(b). When the Labor

Code speaks of illegal recruitment "committed against three (3) or more persons individually or as agroup," it must be understood as referring to the number of complainants in each case who arecomplainants therein, otherwise, prosecutions for single crimes of illegal recruitment can becummulated to make out a case of large scale illegal recruitment. In other words, a conviction forlarge scale illegal recruitment must be based on a finding in each case of illegal recruitment of threeor more persons whether individually or as a group.

Moreover, even it Blanza and Garcia had been illegally recruited so as to make the number ofpersons illegally recruited four and make the crime that of illegal recruitment on a large scale, since


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this was not alleged in the information and this is the more serious offense which includes that whichwas charged, the appellant can only be found guilty of the less serious offense charged, pursuant toRule 120, 4.

Accordingly, appellant must be punished under Art. 39(c) of the Labor Code which provides:

(c) Any person who is neither a licensee nor a holder of authority under this Titlefound violating any provision thereof or its implementing rules and regulations shallupon conviction thereof, suffer the penalty of imprisonment of not less than fouryears nor more than eight years or a fine of not less than P20,000 nor more thanP100,000 or both such imprisonment and fine, at the discretion of the court.

WHEREFORE, the decision appealed from is SET ASIDE and another one is rendered, findingappellant Thelma Reyes guilty of illegal recruitment on two (2) counts and is hereby sentenced foreach crime to suffer imprisonment of 6 years and 1 day to 8 years and pay a fine of P50,000.00; andordered to indemnify Rosalino Bitang in the amount of P13,500.00 and Fabian Baradas in theamount of P18,000.00 and pay the costs.

SO ORDERED.

Mercidar Fishing Corporation vs. NLRC, G.R.

No. 112574. October 8, 1998; 297 SCRA440Posted byPius Morados onNovember 10, 2011

(Labor Standards Fishermen are not field personnels, Article 82)

Facts: Private respondent employed as a bodegero or ships quartermaster complained of being constructively

dismissed by petitioner corporation when the latter refused him assignments aboard its boats after he had reported to

work. The Larbor Arbiter rendered a decision ordering petitioner corporation to reinstate complainant with back

wages, pay him his 13th

month pay and incentive leave. Petitioner claims that it cannot be held liable for service

incentive leave pay by fishermen in its employ as the latter supposedly are field personnel and thus not entitled to

such pay under the Labor Code.

Article 82 of the Labor Code provides among others that field personnel shall refer to non-agricultural employees

who regularly perform their duties away from the principal place of business or branch of office of the employer and

whose actual hours of work in the field cannot be determined with reasonable certainty.

Issue: WON fishermen are considered field personnel.

Held: No. Although fishermen perform non-agricultural work away from their employers business offices, the fact

remains that throughout the duration of their work they are under the effective control and supervision of the employer

through the vessels patron or master.

[G.R. No. 112574. October 8, 1998]
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MERCIDAR FISHING CORPORATION represented by its PresidentDOMINGO B. NAVAL, peti t ioner, vs. NATIONAL LABORRELATIONS COMMISSION and FERMIN AGAO,JR., respondents.

D E C I S I O N

MENDOZA, J.:

This is a petition for certiorari to set aside the decision, dated August 30, 1993, ofthe National Labor Relations Commission dismissing the appeal of petitioner MercidarFishing Corporation from the decision of the Labor Arbiter in NLRC NCR Case No. 09-05084-90, as well as the resolution dated October 25, 1993, of the NLRC denyingreconsideration.

This case originated from a complaint filed on September 20, 1990 by privaterespondent Fermin Agao, Jr. against petitioner for illegal dismissal, violation of P.D. No.851, and non-payment of five days service incentive leave for 1990. Private respondenthad been employed as a bodegero or ships quartermaster on February 12, 1988. Hecomplained that he had been constructively dismissed by petitioner when the latterrefused him assignments aboard its boats after he had reported to work on May 28,1990.[1]

Private respondent alleged that he had been sick and thus allowed to go on leavewithout pay for one month from April 28, 1990 but that when he reported to work at theend of such period with a health clearance, he was told to come back another time ashe could not be reinstated immediately. Thereafter, petitioner refused to give himwork. For this reason, private respondent asked for a certificate of employment from

petitioner on September 6, 1990. However, when he came back for the certificate onSeptember 10, petitioner refused to issue the certificate unless he submitted hisresignation. Since private respondent refused to submit such letter unless he was givenseparation pay, petitioner prevented him from entering the premises.[2]

Petitioner, on the other hand, alleged that it was private respondent who actuallyabandoned his work. It claimed that the latter failed to report for work after his leavehad expired and was, in fact, absent without leave for three months until August 28,1998. Petitioner further claims that, nonetheless, it assigned private respondent toanother vessel, but the latter was left behind on September 1, 1990. Thereafter, privaterespondent asked for a certificate of employment on September 6 on the pretext that hewas applying to another fishing company. On September 10, 1990, he refused to get

the certificate and resign unless he was given separation pay.[3]

On February 18, 1992, Labor Arbiter Arthur L. Amansec rendered a decisiondisposing of the case as follows:

ACCORDINGLY, respondents are ordered to reinstate complainantwith backwages, pay him his 13th month pay and incentive leave payfor 1990.
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All other claims are dismissed.

SO ORDERED.

Petitioner appealed to the NLRC which, on August 30, 1993, dismissed the appeal

for lack of merit. The NLRC dismissed petitioners claim that it cannot be held liable forservice incentive leave pay by fishermen in its employ as the latter supposedly are fieldpersonnel and thus not entitled to such pay under the Labor Code.[4]

The NLRC likewise denied petitioners motion for reconsideration of its decision inits order dated October 25, 1993.

Hence, this petition. Petitioner contends:

I

THE RESPONDENT COMMISSION PALPABLY ERRED IN RULING AND

SUSTAINING THE VIEW THAT FISHING CREW MEMBERS, LIKE FERMINAGAO, JR., CANNOT BE CLASSIFIED AS FIELD PERSONNEL UNDERARTICLE 82 OF THE LABOR CODE.

II

THE RESPONDENT COMMISSION ACTED WITH GRAVE ABUSE OFDISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN ITUPHELD THE FINDINGS OF THE LABOR ARBITER THAT HEREINPETITIONER HAD CONSTRUCTIVELY DISMISSED FERMIN AGAO, JR.,FROM EMPLOYMENT.

The petition has no merit.

Art. 82 of the Labor Code provides:

ART. 82. Coverage. - The provisions of this Title [Working Conditionsand Rest Periods] shall apply to employees in all establishments andundertakings whether for profit or not, but not to governmentemployees, field personnel, members of the family of the employerwho are dependent on him for support, domestic helpers, persons inthe personal service of another, and workers who are paid by results

as determined by the Secretary of Labor in appropriate regulations.. . . . . . . . . .

Field personnel shall refer to non-agricultural employees whoregularly perform their duties away from the principal place ofbusiness or branch office of the employer and whose actual hours ofwork in the field cannot be determined with reasonable certainty.
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Petitioner argues essentially that since the work of private respondent is performedaway from its principal place of business, it has no way of verifying his actual hours ofwork on the vessel. It contends that private respondent and other fishermen in itsemploy should be classified as field personnel who have no statutory right to serviceincentive leave pay.

In the case of Union of Filipro Employees (UFE) v. Vicar,[5]this Court explained themeaning of the phrase whose actual hours of work in the field cannot be determinedwith reasonable certainty in Art. 82 of the Labor Code, as follows:

Moreover, the requirement that actual hours of work in the fieldcannot be determined with reasonable certainty must be read inconjunction with Rule IV, Book III of the Implementing Rules whichprovides:

Rule IV Holidays with Pay

Section 1. Coverage - This rule shall apply to all employeesexcept:

. . . . . . . . . .

(e) Field personnel and other employees whosetimeandperformance is unsupervised by the employerxxx(Italics supplied)

While contending that such rule added another element not found inthe law (Rollo, p. 13), the petitioner nevertheless attempted to showthat its affected members are not covered by the abovementioned

rule. The petitioner asserts that the companys sales personnel arestrictly supervised as shown by the SOD (Supervisor of the Day)schedule and the company circular dated March 15, 1984 (Annexes 2and 3, Rollo, pp. 53-55).

Contrary to the contention of the petitioner, the Court finds that theaforementioned rule did not add another element to the Labor Codedefinition of field personnel. The clause whose time and performanceis unsupervised by the employer did not amplify but merelyinterpreted and expounded the clause whose actual hours of workinthe field cannot be determined with reasonable certainty. The formerclause is still within the scope and purview of Article 82 which definesfield personnel. Hence, in deciding whether or not an employeesactual working hours in the field can be determined with reasonablecertainty, query must be made as to whether or not such employeestime and performance is constantly supervised by the employer.[6]
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Accordingly, it was held in the aforementioned case that salesmen of NestlePhilippines, Inc. were field personnel:

It is undisputed that these sales personnel start their field work at 8:00a.m. after having reported to the office and come back to the office at

4:00 p.m. or 4:30 p.m. if they are Makati-based.The petitioner maintains that the period between 8:00 a.m. to 4:00 or4:30 p.m. comprises the sales personnels working hours which canbe determined with reasonable certainty.

The Court does not agree. The law requires that the actual hours ofwork in the field be reasonably ascertained. The company has no wayof determining whether or not these sales personnel, even if theyreport to the office before 8:00 a.m. prior to field work and come backat 4:30 p.m., really spend the hours in between in actual field work.[7]

In contrast, in the case at bar, during the entire course of their fishing voyage,fishermen employed by petitioner have no choice but to remain on board itsvessel. Although they perform non-agricultural work away from petitioners businessoffices, the fact remains that throughout the duration of their work they are under theeffective control and supervision of petitioner through the vessels patron or master asthe NLRC correctly held.[8]

Neither did petitioner gravely abuse its discretion in ruling that private respondenthad constructively been dismissed by petitioner. Such factual finding of both the NLRCand the Labor Arbiter is based not only on the pleadings of the parties but also on amedical certificate of fitness which, contrary to petitioners claim, private respondentpresented when he reported to work on May 28, 1990.[9]As the NLRC held:

Anent grounds (a) and (b) of the appeal, the respondent, in a nutshell,would like us to believe that the Arbiter abused his discretion (orseriously erred in his findings of facts) in giving credence to the factualversion of the complainant. But it is settled that (W)hen confrontedwith conflicting versions of factual matters, the Labor Arbiter has thediscretion to determine which party deserves credence on the basisof evidence received. [Gelmart Industries (Phils.), Inc.vs. Leogardo,155 SCRA 403, 409, L-70544, November 5, 1987]. And besides, it issettled in this jurisdiction that to constitute abandonment of position,

there must be concurrence of the intention to abandon and some overtacts from which it may be inferred that the employee concerned hasno more interest in working (Dagupan Bus Co., Inc. vs. NLRC, 191SCRA 328), and that the filing of the complaint which asked forreinstatement plus backwages (Record, p. 20) is inconsistent withrespondents defense of abandonment (Hua Bee Shirt Factoryvs.NLRC, 188 SCRA 586).[10]
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It is trite to say that the factual findings of quasi-judicial bodies are generally bindingas long as they are supported substantially by evidence in the record of the case .[11]Thisis especially so where, as here, the agency and its subordinate who heard the case inthe first instance are in full agreement as to the facts.[12]

As regards the labor arbiters award which was affirmed by respondent NLRC, there

is no reason to apply the rule that reinstatement may not be ordered if, as a result of thecase between the parties, their relation is strained.[13]Even at this late stage of thisdispute, petitioner continues to reiterate its offer to reinstate private respondent.[14]

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

KING OF KINGS TRANSPORT, G.R. No. 166208

INC., CLAIRE DELA FUENTE,

and MELISSA LIM, Present:

Petitioners,

QUISUMBING,J., Chairperson,

CARPIO,

CARPIO MORALES,

- versus - TINGA, and

VELASCO, JR.,JJ.

Promulgated:

SANTIAGO O. MAMAC,Respondent. June 29, 2007

x-----------------------------------------------------------------------------------------x

D E C I S I O N

VELASCO, JR., J.:

Is a verbal appraisal of the charges against the employee a breach of the

procedural due process? This is the main issue to be resolved in this plea forreview under Rule 45 of the September 16, 2004 Decision[1]of the Court of

Appeals (CA) in CA-GR SP No. 81961. Said judgment affirmed the dismissal of

bus conductor Santiago O. Mamac from petitioner King of Kings Transport, Inc.

(KKTI), but ordered the bus company to pay full backwages for violation of the
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twin-notice requirement and 13th-month pay. Likewise assailed is the December

2, 2004 CA Resolution[2]rejecting KKTIs Motion for Reconsideration.

The Facts

Petitioner KKTI is a corporation engaged in public transportation and

managed by Claire Dela Fuente and Melissa Lim.

Respondent Mamac was hired as bus conductor of Don Mariano Transit

Corporation (DMTC) on April 29, 1999. The DMTC employees including

respondent formed theDamayan ng mga Manggagawa, Tsuper atConductor-

Transport Workers Union and registered it with the Department of Labor andEmployment. Pending the holding of a certification election in DMTC, petitioner

KKTI was incorporated with the Securities and Exchange Commission which

acquired new buses. Many DMTC employees were subsequently transferred to

KKTI and excluded from the election.

The KKTI employees later organized theKaisahan ng mga Kawani saKing

of Kings (KKKK) which was registered with DOLE. Respondent was elected

KKKK president.

Respondent was required to accomplish a Conductors Trip Report and

submit it to the company after each trip. As a background, this report indicates the

ticket opening and closing for the particular day of duty. After submission, the

company audits the reports. Once an irregularity is discovered, the company issues

an Irregularity Report against the employee, indicating the nature and details of

the irregularity. Thereafter, the concerned employee is asked to explain the

incident by making a written statement or counter-affidavit at the back of the same

Irregularity Report. After considering the explanation of the employee, thecompany then makes a determination of whether to accept the explanation or

impose upon the employee a penalty for committing an infraction. That decision

shall be stated on said Irregularity Report and will be furnished to the employee.

Upon audit of the October 28, 2001 Conductors Report of respondent,

KKTI noted an irregularity. It discovered that respondent declared several sold
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tickets as returned tickets causing KKTI to lose an income of eight hundred and

ninety pesos. While no irregularity report was prepared on the October 28,

2001 incident, KKTI nevertheless asked respondent to explain the discrepancy. In

his letter,[3]respondent said that the erroneous declaration in his October 28, 2001

Trip Report was unintentional. He explained that during that days trip, thewindshield of the bus assigned to them was smashed; and they had to cut short the

trip in order to immediately report the matter to the police. As a result of the

incident, he got confused in making the trip report.

On November 26, 2001, respondent received a letter[4]terminating his

employment effective November 29, 2001. The dismissal letter alleged that

the October 28, 2001irregularity was an act of fraud against the company. KKTI

also cited as basis for respondents dismissal the other offenses he allegedlycommitted since 1999.

On December 11, 2001, respondent filed a Complaint for illegal dismissal,

illegal deductions, nonpayment of 13th-month pay, service incentive leave, and

separation pay. He denied committing any infraction and alleged that his dismissal

was intended to bust union activities. Moreover, he claimed that his dismissal was

effected without due process.

In its April 3, 2002 Position Paper,[5]

KKTI contended that respondent waslegally dismissed after his commission of a series of misconducts and misdeeds. It

claimed that respondent had violated the trust and confidence reposed upon him by

KKTI. Also, it averred that it had observed due process in dismissing respondent

and maintained that respondent was not entitled to his money claims such as

service incentive leave and 13th-month pay because he was paid on commission or

percentage basis.

On September 16, 2002, Labor Arbiter Ramon Valentin C. Reyes rendered

judgment dismissing respondents Complaint for lackof merit.[6]

Aggrieved, respondent appealed to the National Labor Relations

Commission (NLRC). On August 29, 2003, the NLRC rendered a Decision, the

dispositive portion of which reads:
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WHEREFORE, the decision dated 16 September 2002 is MODIFIED in thatrespondent King of Kings Transport Inc. is hereby ordered to indemnify complainant in

the amount of ten thousand pesos (P10,000) for failure to comply with due process priorto termination.

The other findings are AFFIRMED.

SO ORDERED.[7]

Respondent moved for reconsideration but it was denied through

the November 14, 2003 Resolution[8]of the NLRC.

Thereafter, respondent filed a Petition for Certiorari before the CA urging

the nullification of the NLRC Decision and Resolution.

The Ruling of the Court of Appeals

Affirming the NLRC, the CA held that there was just cause for respondents

dismissal. It ruled that respondents act in declaring sold tickets as returned tickets

x x x constituted fraud or acts of dishonesty justifying his dismissal.[9]

Also, the appellate court sustained the finding that petitioners failed to

comply with the required procedural due process prior to respondents termination.

However, following the doctrine in Serrano v. NLRC,[10]itmodified the award of

PhP 10,000 as indemnification by awarding full backwages from the time

respondents employment was terminated until finality of the decision.

Moreover, the CA held that respondent is entitled to the 13th-month pay

benefit.

Hence, we have this petition.

The Issues

Petitioner raises the following assignment of errors for our consideration:
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Whether the Honorable Court of Appeals erred in awarding in favor of

the complainant/private respondent, full back wages, despite the denial

of his petition for certiorari.

Whether the Honorable Court of Appeals erred in ruling that KKTI did

not comply with the requirements of procedural due process beforedismissing the services of the complainant/private respondent.

Whether the Honorable Court of Appeals rendered an incorrect decision

in that [sic] it awarded in favor of the complaint/private respondent,

13thmonth pay benefits contrary to PD 851.[11]

The Courts Ruling

The petition is partly meritorious.

The disposition of the first assigned error depends on whether petitioner

KKTI complied with the due process requirements in terminating respondents

employment; thus, it shall be discussed secondly.

Non-compliance with the Due Process Requirements

Due process under the Labor Code involves two aspects: first, substantive

the valid and authorized causes of termination of employment under the Labor

Code; andsecond, proceduralthe manner of dismissal.[12] In the present case, the

CA affirmed the findings of the labor arbiter and the NLRC that the termination of

employment of respondent was based on a just cause. This ruling is not at issue

in this case. The question to be determined is whether the procedural requirements

were complied with.

Art. 277 of the Labor Code provides the manner of termination of

employment, thus:

Art. 277. Miscellaneous Provisions.x x x

(b) Subject to the constitutional right of workers to security of

tenure and their right to be protected against dismissal except for a just

and authorized cause without prejudice to the requirement of notice
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under Article 283 of this Code, the employer shall furnish the worker

whose employment is sought to be terminated a written notice containing

a statement of the causes for termination and shall afford the latter ample

opportunity to be heard and to defend himself with the assistance of his

representative if he so desires in accordance with company rules and

regulations promulgated pursuant to guidelines set by the Department ofLabor and Employment. Any decision taken by the employer shall be

without prejudice to the right of the worker to contest the validity or

legality of his dismissal by filing a complaint with the regional branch of

the National Labor Relations Commission. The burden of proving that

the termination was for a valid or authorized cause shall rest on the

employer.

Accordingly, the implementing rule of the aforesaid provision states:

SEC. 2. Standards of due process; requirements of notice.In all

cases of termination of employment, the following standards of due

process shall be substantially observed:

I. For termination of employment based on just causes as defined

in Article 282 of the Code:

(a) A written notice served on the employee

specifying the ground or grounds for termination, and

giving said employee reasonable opportunity within whichto explain his side.

(b) A hearing or conference during which the employee

concerned, with the assistance of counsel if he so desires is

given opportunity to respond to the charge, present his

evidence, or rebut the evidence presented against him.

(c) A written notice of termination served on the

employee, indicating that upon due consideration of all the

circumstances, grounds have been established to justify histermination.[13]

In case of termination, the foregoing notices shall be served on the

employees last known address.[14]
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To clarify, the following should be considered in terminating the services of

employees:

(1) The first written notice to be served on the employees should contain

the specific causes or grounds for termination against them, and a directive that theemployees are given the opportunity to submit their written explanation within a

reasonable period. Reasonable opportunity under the Omnibus Rules means

every kind of assistance that management must accord to the employees to enable

them to prepare adequately for their defense.[15] This should be construed as a

period of at least five (5) calendar days from receipt of the notice to give the

employees an opportunity to study the accusation against them, consult a union

official or lawyer, gather data and evidence, and decide on the defenses they will

raise against the complaint. Moreover, in order to enable the employees tointelligently prepare their explanation and defenses, the notice should contain a

detailed narration of the facts and circumstances that will serve as basis for the

charge against the employees. A general description of the charge will not

suffice. Lastly, the notice should specifically mention which company rules, if

any, are violated and/or which among the grounds under Art. 282 is being charged

against the employees.

(2) After serving the first notice, the employers should schedule and

conduct a hearing or conference wherein the employees will be given theopportunity to: (1) explain and clarify their defenses to the charge against them; (2)

present evidence in support of their defenses; and (3) rebut the evidence presented

against them by the management. During the hearing or conference, the employees

are given the chance to defend themselves personally, with the assistance of a

representative or counsel of their choice. Moreover, this conference or hearing

could be used by the parties as an opportunity to come to an amicable settlement.

(3) After determining that termination of employment is justified, theemployers shall serve the employees a written notice of terminationindicating

that: (1) all circumstances involving the charge against the employees have been

considered; and (2) grounds have been established to justify the severance of their

employment.
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In the instant case, KKTI admits that it had failed to provide respondent with

a charge sheet.[16]However, it maintains that it had substantially complied with

the rules, claiming that respondent would not have issued a written explanation

had he not been informed of the charges against him.[17]

We are not convinced.

First,respondent was not issued a writtennotice charging him of

committing an infraction. The law is clear on the matter. A verbal appraisal of the

charges against an employee does not comply with the first notice

requirement. InPepsi Cola Bottling Co. v. NLRC,[18]the Court held that

consultations or conferences are not a substitute for the actual observance of notice

and hearing. Also, inLoadstar Shipping Co., Inc. v. Mesano,

[19]

the Court,sanctioning the employer for disregarding the due process requirements, held that

the employees written explanation did not excuse the fact that there was a

complete absence of the first notice.

Second,even assuming that petitioner KKTI was able to furnish respondent

an Irregularity Report notifying him of his offense, such would not comply with

the requirements of the law. We observe from the irregularity reports against

respondent for his other offenses that such contained merely a general description

of the charges against him. The reports did not even state a company rule or policythat the employee had allegedly violated. Likewise, there is no mention of any of

the grounds for termination of employment under Art. 282 of the Labor Code.

Thus, KKTIs standard charge sheet is not sufficient notice to the employee.

Third,no hearing was conducted. Regardless of respondents written

explanation, a hearing was still necessary in order for him to clarify and present

evidence in support of his defense. Moreover, respondent made the letter merely

to explain the circumstances relating to the irregularity in his October 28,2001 Conductors Trip Report. He was unaware that a dismissal proceeding was

already being effected. Thus, he was surprised to receive the November 26,

2001 termination letter indicating as grounds, not only hisOctober 28,

2001 infraction, but also his previous infractions.

Sanction for Non-compliancewith Due Process Requirements
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As stated earlier, after a finding that petitioners failed to comply with the

due process requirements, the CA awarded full backwages in favor of respondent

in accordance with the doctrine in Serrano v. NLRC.[20] However, the doctrine

in Serrano had already been abandoned inAgabon v. NLRCby ruling that if thedismissal is done without due process, the employer should indemnify the

employee with nominal damages.[21]

Thus, for non-compliance with the due process requirements in the

termination of respondents employment, petitioner KKTI is sanctioned to pay

respondent the amount of thirty thousand pesos (PhP 30,000) as damages.

Thirteenth (13th)-Month Pay

Section 3 of the Rules Implementing Presidential Decree No.

851[22]provides the exceptions in the coverage of the payment of the 13th-month

benefit. The provision states:

SEC. 3. Employers covered.The Decree shall apply to all

employers except to:

x x x x

e) Employers of those who are paid on purely commission,

boundary, or task basis, and those who are paid a fixed amount for

performing a specific work, irrespective of the time consumed in the

performance thereof, except where the workers are paid on piece-rate

basis in which case the employer shall be covered by this issuance

insofar as such workers are concerned.

Petitioner KKTI maintains that respondent was paid on purely commission

basis; thus, the latter is not entitled to receive the 13th-month paybenefit. However, applying the ruling inPhilippine Agricultural Commercial and

Industrial Workers Union v. NLRC,[23]the CA held that respondent is entitled to

the said benefit.

It was erroneous for the CA to apply the case ofPhilippine Agricultural

Commercial and Industrial Workers Union. Notably in the said case, it was
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established that the drivers and conductors praying for 13th- month pay were not

paid purely on commission. Instead, they were receiving a commission in

additionto a fixed or guaranteed wage or salary. Thus, the Court held that bus

drivers and conductors who are paid a fixed or guaranteed minimum wage in case

their commission be less than the statutory minimum, and commissions only incase where they are over and above the statutory minimum, are entitled to a 13th-

month pay equivalent to one-twelfth of their total earnings during the calendar

year.

On the other hand, in his Complaint,[24]respondent admitted that he was paid

on commission only. Moreover, this fact is supported by his pay slips [25]which

indicated the varying amount of commissions he was receiving each trip. Thus, he

was excluded from receiving the 13th-month pay benefit.

WHEREFORE, the petition is PARTLY GRANTEDand the September

16, 2004 Decision of the CA is MODIFIEDby deleting the award of backwages

and 13th-month pay. Instead, petitioner KKTI is ordered to indemnify respondent

the amount of thirty thousand pesos (PhP 30,000) as nominal damages for failure

to comply with the due process requirements in terminating the employment of

respondent.

No costs.

SO ORDERED.

G.R. No. 94167 January 21, 1991

MABUHAY SHIPPING SERVICES, INC. AND SKIPPERS MARITIME CO., LTD., petitioners,vs.HON. NATIONAL LABOR RELATIONS COMMISSION (FIRST DIVISION) AND CECILIASENTINA,respondents.

Victorino Alba for petitioners.

Rodolfo B. Dizon for private respondent.

GANCAYCO, J.:p
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The employer is exempted from liability for burial expenses for a seaman who commits suicide. Howabout in a case of one who ran amuck or who in a state of intoxication provoked a fight as a result ofwhich he was killed? Is the employer similarly exempt from liability? This is the issue in this case.

Romulo Sentina was hired as a 4th Engineer by petitioner Mabuhay Shipping Services, Inc. (MSSI)for and in behalf of co-petitioner, Skippers Maritime Co., Ltd. to work aboard the M/V Harmony I for a

period of one year. He reported for duty aboard said vessel on July 13, 1987.

On January 16, 1988 at about 3 p.m., while the vessel was docked alongside Drapetona Pier,Piraeus, Greece, Sentina arrived aboard the ship from shore leave visibly drunk. He went to themesshall and took a fire axe and challenged those eating therein. He was pacified by his shipmateswho led him to his cabin. However, later he went out of his cabin and proceeded to the messhall. Hebecame violent. He smashed and threw a cup towards the head of an oiler Emmanuel Ero, who wasthen eating. Ero touched his head and noticed blood. This infuriated Ero which led to a fight betweenthe two. After the shipmates broke the fight, Sentina was taken to the hospital where he passedaway on January 17, 1988. 1Ero was arrested by the Greek authorities and was jailed in Piraeus.

On October 26, 1988, private respondents filed a complaint against petitioners with the Philippine

Overseas Employment Administration (POEA) for payment of death benefits, burial expenses,unpaid salaries on board and overtime pay with damages docketed as POEA Case No. (M) 88-10-896. After submission of the answer and position papers of the parties a decision was rendered bythe POEA on July 11, 1989, the dispositive part of which reads as follows:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered orderingMabuhay Shipping Services, Inc. and Skippers Maritime Co., Ltd. to pay complainantCecilia S. Sentina the sum of TWO HUNDRED THIRTY THOUSAND PESOS(P230,000.00) representing the deceased's death benefit and burial compensation,the sum of THREE HUNDRED FIFTY US DOLLARS (US$350.00) or its pesoequivalent at the time of payment representing unpaid shipboard pay and fixedovertime pay plus ten percent (10%) of the total judgment award by way of and asattorney's fees.

All other claims are ordered dismissed

SO ORDERED.2

A motion for reconsideration and/or appeal was filed by petitioners which the respondent FirstDivision of the National Labor Relations Commission (NLRC) disposed of in a resolution datedMarch 31, 1990 dismissing the appeal and affirming the appealed decision. 3

A motion for reconsideration thereof filed by petitioners was denied by said public respondent in aresolution dated June 29, 1990.

Hence, the herein petition for certiorariwherein the following grounds are invoked:

The Hon. NLRC, gravely abused its discretion in holding that "The payment of DeathCompensation Benefit only requires that the seaman dies during the term of thecontract, and no other."


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That the Hon. NLRC, gravely abused its discretion in holding that even if the subjectseaman's death resulted from the fight he himself created, such nonetheless doesnot constitute a "deliberate or wilfull act on his own life."

That the Hon. NLRC, gravely abused its discretion in holding, that the death of thelate 4/Engr Romulo Sentina is compensable. 4

The petition is impressed with merit.

Part II, Section C, No. 6 of the POEA Standard Format for Filipino seamen employed in ocean goingvessels states that

No compensation shall be payable in respect of any injury, incapacity, disability ordeath resulting from a deliberate or willful act on his own life by the seaman,providedhowever that the employer can prove that such injury, incapacity, disability or deathis directly attributable to the seamen.

The same provision of the standard format also provides

In case of death of the seaman during the term of his contract, the employer shallpay his beneficiaries the amount of

xxx xxx xxx

b. P210,000.00 for other officers including radio operators and master electrician.(Memo Circular No. 5 effective March 1, 1986)

In interpreting the aforequoted provision in its decision, the POEA held that payment of deathcompensation benefits only requires that the seaman should die during the term of the contract andno other. It further held that the saving provision relied upon by petitioners refers only to suicide

where the seaman deliberately and intentionally took his own life.5

Public respondent in affirming the said POEA decision made the following disquisition

It is not difficult for us to understand the intent of the aforequoted "Part II, Section C,No. 6 of the POEA Standard Format" that to avoid death compensation, twoconditions must be met:

a) the subject death much have resulted "from a deliberate or willful act on his ownlifeby the seaman;" and

b) such death "directly attributable to the seaman" must have been proven by the

"employer."

Thus, even if arguendo,the appellants may successfully prove that the subjectseaman's death resulted from the fight he himself created, such, nonetheless doesnot constitute a "deliberate or willful act on his own life." On this ground alone, theinstant appeal would already fail.6

The mere death of the seaman during the term of his employment does not automatically give rise tocompensation. The circumstances which led to the death as well as the provisions of the contract,


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and the right and obligation of the employer and seaman must be taken into consideration, inconsonance with the due process and equal protection clauses of the Constitution. There arelimitations to the liability to pay death benefits.

When the death of the seaman resulted from a deliberate or willful act on his own life, and it isdirectly attributable to the seaman, such death is not compensable. No doubt a case of suicide is

covered by this provision.

By the same token, when as in this case the seaman, in a state of intoxication, ran amuck, orcommitted an unlawful aggression against another, inflicting injury on the latter, so that in his owndefense the latter fought back and in the process killed the seaman, the circumstances of the deathof the seaman could be categorized as a deliberate and willful act on his own life directly attributableto him. First he challenged everyone to a fight with an axe. Thereafter, he returned to the messhallpicked up and broke a cup and hurled it at an oiler Ero who suffered injury. Thus provoked, the oilerfought back The death of seaman Sentina is attributable to his unlawful aggression and thus is notcompensable.

Even under Article 172 of the Labor Code, the compensation for workers covered by the Employees

Compensation and State Insurance Fund are subject to the limitations on liability.

Art. 172. Limitations of liability. The State Insurance Fund shall be liable for thecompensation to the employee or his dependents except when the disability or deathwas occasioned by the employee's intoxication, willful intent to injure or kill himself oranother, notorious negligence, or otherwise provided under this Title.

Private respondent pointed out that petitioner MSSI endorsed the claim for compensation of privaterespondents. Said petitioner admits this fact but asserts that it was not favorably acted upon by itsprincipal, petitioner Skippers Maritime Co., Inc. because of the circumstances that led to the death ofSentina.

WHEREFORE, the petition is GRANTED. The questioned decision of the POEA dated July 11, 1989and the resolutions of public respondent dated May 31, 1990 and June 29, 1990 affirming the sameare hereby set aside and another judgment is hereby rendered dismissing the complaint.

SO ORDERED.

Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

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