5

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3 Floor, Philippine Nurses Association,
# 1663 F. T. Benitez St, Malate, Manila
LABOR LAW
Handout No. 45

LABOR LAWS

Section 9 of Republic Act (RA) No. 8042 fixed an alternative venue from that provided in Section 15(a)
of the Rules of Criminal Procedure, i.e., a criminal action arising from illegal recruitment may also be
filed where the offended party actually resides at the time of the commission of the offense and that
the court where the criminal action is first filed shall acquire jurisdiction to the exclusion of other courts.

Despite the clear provision of the law, the RTC of Manila declared that it has no jurisdiction to try the
cases as the illegal Recruitment and Estafa were not committed in its territory but in Kidapawan City. We
are, thus, one with the CA in finding that the RTC of Manila committed grave abuse of discretion and in
fact, a palpable error, in ordering the quashal of the Informations. The express provision of the law is clear
that the filing of criminal actions arising from illegal recruitment before the RTC of the province or city
where the offended party actually resides at the time of the commission of the offense is allowed. It goes
without saying that the dismissal of the case on a wrong ground, indeed, deprived the prosecution, as
well as the respondent as complainant, of their day in court. David vs. Marquez, 825 SCRA 530, G.R. No.
209859 June 5, 2017

Loss of trust and confidence

The willful breach by the employee of the trust reposed in him by his employer or the latter’s duly
authorized representative is a just cause for dismissal. However, the validity of a dismissal based on this
ground is premised upon the concurrence of these conditions: (1) the employee concerned must be
holding a position of trust and confidence; and (2) there must be a willful act that would justify the loss of
trust and confidence. Digital Telecommunications Phils., Inc./John Gokongwei, Jr. vs. Neilson M. Ayapana,
G.R. No. 195614, January 10, 2018

The totality of the circumstances in the case at bar supports a conclusion that respondent’s dismissal was
based on substantial evidence that he had willfully breached the trust reposed upon him by petitioner,
and that petitioner was not actuated by mere whim or capriciousness.

It is uncontroverted that respondent took part in a series of irregularities relative to his transaction with
Lim, to wit:

First, he offered an inexistent FEX line to Lim, for which he received a subscription payment of P7,000.00.
Even granting he did not know that the Atimonan line was unavailable at the time he offered the same to
Lim, he was remiss in not ascertaining its availability before he concluded his transaction with Lim and
received from her the subscription payment. As an employee admittedly tasked with soliciting subscribers
for the Company’s FEX line, it was an integral part of his functions to ensure that the lines he offered to
potential subscribers were valid and subsisting.

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LABOR LAW
Handout No. 45

Second, it is not disputed that respondent was required and expected to immediately remit the proceeds
acquired in the course of his sales transactions; which he failed to do in Lim’s case, without sufficient
explanation for such lapse.

Third, respondent readily admits that when he came to know of the Atimonan line’s unavailability, he did
not immediately effect a refund nor inform management of his decision to retain the money supposedly
pending Lim’s decision to acquire another line. Instead, he retrieved the official receipts from Lim and
issued an acknowledgment receipt. (id)

Payment of separation pay

This Court is mindful of the new rule it established in Toyota v. NLRC, where the Court held that “in
addition to serious misconduct, in dismissals based on other grounds under Art. 282 like willful
disobedience, gross and habitual neglect of duty, fraud or willful breach of trust, and commission of a
crime against the employer or his family, separation pay should not be conceded to the dismissed
employee.”29However, the Court also recognizes that some cases merit a relaxation of this rule, taking
into consideration their peculiar circumstances.

Here, while it is clear that respondent’s act constitutes a willful breach of trust and confidence that
justified his dismissal, it also appears that he was primarily actuated by zealousness in acquiring and
retaining subscribers rather than any intent to misappropriate company funds; as he admitted in his
response to the notice to explain that offering an alternative FEX line to Lim was part of his strategy to
ensure her subscription. Digital Telecommunications Phils., Inc./John Gokongwei, Jr. vs. Neilson M.
Ayapana, G.R. No. 195614, January 10, 2018

Cancellation of Union Registration

For fraud and misrepresentation to constitute grounds for cancellation of union registration under the
Labor Code, the nature of the fraud and misrepresentation must be grave and compelling enough to
vitiate the consent of a majority of union members. De Ocampo insists that “by conveniently disregarding”
BMDOMMC’s existence during the filing of its application, despite having the same set of officers and
members, BMDOMSI “had misrepresented facts, made false statements and committed fraud in its
application for union registration for alleging facts therein which they [know] or ought to have known to
be false.” We agree with the BLR and the CA that BMDOMSI did not commit fraud or misrepresentation
in its application for registration. In the form “Report of Creation of Local Chapter” filed by BMDOMSI, the
applicant indicated in the portion “Description of the Bargaining Unit” that it is composed of “Rank-and-
File” and under the “Occupational Classification,” it marked “Technical” and “Faculty.” (De Ocampo
Memorial Schools, Inc. vs. Bigkis Manggagawa sa De Ocampo Memorial School, Inc., 820 SCRA 413, G.R.
No. 192648 March 15, 2017)

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The only grounds on which the cancellation of a union’s registration may be sought are those found in
Article 247 of the Labor Code.

While the CA may have ruled that there is no mutuality or commonality of interests among the members
of BMDOMSI, this is not enough reason to cancel its registration. The only grounds on which the
cancellation of a union’s registration may be sought are those found in Article 247 of the Labor Code.
In Tagaytay Highlands International Golf Club Incorporated v. Tagaytay Highlands Employees Union-
PTGWO, 395 SCRA 699 (2003), we ruled that “[t]he inclusion in a union of disqualified employees is not
among the grounds for cancellation, unless such inclusion is due to misrepresentation, false statement or
fraud under the circumstances enumerated in Sections (a) and (c) of Article [247] x x x of the Labor
Code.” Thus, for purposes of decertifying a union, it is not enough to establish that the rank-and-file union
includes ineligible employees in its membership. Pursuant to paragraphs (a) and (b) of Article 247 of the
Labor Code, it must be shown that there was misrepresentation, false statement or fraud in connection
with: (1) the adoption or ratification of the constitution and bylaws or amendments thereto; (2) the
minutes of ratification; (3) the election of officers; (4) the minutes of the election of officers; and (5) the
list of voters. Failure to submit these documents together with the list of the newly elected-appointed
officers and their postal addresses to the BLR may also constitute grounds for cancellation, lack of
mutuality of interests, however, is not among said grounds. (De Ocampo Memorial Schools, Inc. vs. Bigkis
Manggagawa sa De Ocampo Memorial School, Inc., 820 SCRA 413, G.R. No. 192648 March 15, 2017)

Illegal recruitment is “committed by persons who, without authority from the government, give the
impression that they have the power to send workers abroad for employment purposes.”

Illegal recruitment may be undertaken by either non-license or license holders. Non-license holders are
liable by the simple act of engaging in recruitment and placement activities, while license holders may
also be held liable for committing the acts prohibited under Section 6 of RA 8042. People vs. Sison, 835
SCRA 620, G.R. No. 187160 August 9, 2017

The Supreme Court (SC) has held in several cases that an accused who represents to others that he or
she could send workers abroad for employment, even without the authority or license to do so, commits
illegal recruitment.

Under RA 8042, a non-licensee or non-holder of authority commits illegal recruitment for overseas
employment in two ways: (1) by 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; or (2) by undertaking any of the acts enumerated under Section 6 of RA
8042. In this case, Sison herself admits that she has no license or Illegal Recruitment Committed by a
Syndicate; Elements of.—Illegal recruitment committed by a syndicate, as in the present case, has the
following elements: (a) the offender does not have the valid license or authority required by law to engage
in recruitment and placement of workers; (b) the offender undertakes any of the “recruitment and

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LABOR LAW
Handout No. 45

placement” activities defined in Article 13(b) of the Labor Code, or engages in any of the prohibited
practices enumerated under now Section 6 of RA 8042; and (c) the illegal recruitment is “carried out by a
group of three or more persons conspiring and/or confederating with one another in carrying out any
unlawful or illegal transaction, enterprise or scheme.” In the third element, it “is not essential that there
be actual proof that all the conspirators took a direct part in every act. It is sufficient that they acted in
concert pursuant to the same objective.” People vs. Sison, 835 SCRA 620, G.R. No. 187160 August 9, 2017

Since it was proven that the three (3) accused were acting in concert and conspired with one another,
their illegal recruitment activity is considered done by a syndicate, making the offense illegal
recruitment involving economic sabotage.

SEC. 7. PENALTIES.—(a) Any person found guilty of illegal recruitment shall suffer the penalty of
imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine
not less than two hundred thousand pesos (P200,000.00) nor more than five hundred thousand pesos
(P500,000.00). (b) The penalty of life imprisonment and a fine of not less than five hundred thousand
pesos (P500,000.00) nor more than one million pesos (P1,000,000.00) shall be imposed if illegal
recruitment constitutes economic sabotage as defined herein. Provided, however, that the maximum
penalty shall be imposed if the person illegally recruited is less than eighteen (18) years of age or
committed by a non-licensee or non-holder of authority. People vs. Sison, 835 SCRA 620, G.R. No. 187160
August 9, 2017

It is settled that a person, for the same acts, may be convicted separately for illegal recruitment under
Republic Act (RA) No. 8042 and estafa under Article 315(2)(a) of the Revised Penal Code (RPC).

In People v. Gallemit, 724 SCRA 359 (2014), the Court explained: In this jurisdiction, it is settled that a
person who commits illegal recruitment may be charged and convicted separately of illegal recruitment
under the Labor Code and estafa under par. 2(a) of Art. 315 of the Revised Penal Code. The offense of
illegal recruitment is malum prohibitum where the criminal intent of the accused is not necessary for
conviction, while estafa is malum in se where the criminal intent of the accused is crucial for conviction.
Conviction for offenses under the Labor Code does not bar conviction for offenses punishable by other
laws. Conversely, conviction for estafa under par. 2(a) of Art. 315 of the Revised Penal Code does not
bar a conviction for illegal recruitment under the Labor Code. It follows that one’s acquittal of the crime
of estafa will not necessarily result in his acquittal of the crime of illegal recruitment in large scale, and
vice versa. People vs. Sison, 835 SCRA 620, G.R. No. 187160 August 9, 2017

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