ACTI v Echin
632 SCRA 528 (2010)
Facts:
1.
Josefina Echin (respondent)
was hired by
petitioner ATCI Overseas
Corporation in behalf
of its principal co-petitioner, the
Ministry of Public
Health of Kuwait
(the Ministry), for
the position of
medical technologist under
a twoyear contract,
denominated as a
Memorandum of Agreement
(MOA), with a
monthly salary of US$1,200.00.
2.
Under the MOA, all
newly-hired employees undergo
a probationary period
of 1 year and
are covered by
Kuwaits Civil Service Board Employment Contract No. 2.
3.
Respondent was deployed
on February 17,
2000 but was
terminated from employment
on February 11,
2001, she not
having allegedly passed the
probationary period.
4.
As the Ministry
denied respondents reconsideration, she
returned to the
Philippines on March
17, 2001, shouldering her own air fare.
5.
Respondent filed with
the NLRC a complaint for illegal
dismissal against petitioner
ATCI as the
local recruitment agency,
represented by petitioner,
Amalia Ikdal (Ikdal),
and the Ministry,
as the foreign
principal.
6.
Labor Arbiter: finding that petitioners
neither showed that
there was just
cause to warrant respondents dismissal nor that she
failed to qualify as a regular
employee, held that
respondent was illegally
dismissed and accordingly
ordered petitioners to
pay her US$3,600.00,
representing her salary
for the three months unexpired
portion of her contract.
7.
On appeal of petitioners ATCI and Ikdal, the NLRC affirmed the Labor
Arbiters decision
8.
MR denied. They appealed to
the CA, contending
that their principal,
the Ministry, being
a foreign government
agency, is immune
from suit and,
as such, the
immunity extended to
them; and that
respondent was validly
dismissed for her
failure to meet
the performance rating
within the one year
period as required
under Kuwaits Civil
Service Laws. Petitioners
further contended that
Ikdal should not be liable as an
officer of petitioner ATCI.
9.
CA affirmed the NLRC Resolution
and noted that under the
law, a private
employment agency shall
assume all responsibilities for
the implementation of
the contract of
employment of an
overseas worker, hence,
it can be
sued jointly and
severally with the
foreign principal for
any violation of the recruitment agreement or contract of employment.
10.
As to Ikdals
liability, the appellate
court held that
under Sec. 10
of Republic Act
No. 8042, the
Migrant and Overseas
Filipinos Act of
1995, corporate officers,
directors and partners
of a recruitment
agency may themselves
be jointly and
solidarily liable with
the recruitment agency for money claims and damages awarded
to overseas workers.
11.
MR denied, the present
petition for review on certiorari was filed.
12.
Petitioners Contention:
a. maintain that
they should not be held
liable because respondents
employment contract specifically
stipulates that her
employment shall be
governed by the
Civil Service Law
and Regulations of
Kuwait. They thus
conclude that it
was patent error
for the labor
tribunals and the
appellate court to
apply the Labor
Code provisions governing
probationary employment in
deciding the present
case.
b. that even
the POEA Rules relative to master employment contracts accord respect to
the customs, practices,
company policies and
labor laws and
legislation of the host country.
c. Finally, petitioners
posit that assuming
arguendo that Philippine labor laws are applicable, given
that the foreign principal is a
government agency which is immune
from suit, as
in fact it
did not sign
any document agreeing to be held jointly and solidarily liable,
petitioner ATCI cannot likewise be held
liable, more so since the Ministrys liability
had not been judicially determined as jurisdiction was not acquired
over it.
Issue:
Held:
The petition fails. Petitioner ATCI, as a private
recruitment agency, cannot evade responsibility for the money claims of OFWs which
it deploys abroad
by the mere
expediency of claiming
that its foreign
principal is a
government agency clothed
with immunity from
suit, or that
such foreign principals
liability must first
be established before it, as agent, can be held jointly and
solidarily liable.
The
imposition of joint
and solidary liability
is in line
with the policy
of the state
to protect and
alleviate the plight
of the working
class.[9] Verily, to allow
petitioners to simply invoke the immunity from suit of its foreign
principal or to
wait for the
judicial determination of
the foreign principals liability before petitioner can be
held liable renders the law on joint and
solidary liability inutile.
As to
petitioners contentions that Philippine labor laws on probationary employment
are not applicable
since it was
expressly provided in
respondents employment contract,
which she voluntarily
entered into, that
the terms of
her engagement shall
be governed by
prevailing Kuwaiti Civil Service
Laws and Regulations as in fact POEA Rules accord respect
to such rules,
customs and practices
of the host
country, the same was not substantiated.
Indeed, a contract
freely entered into
is considered the
law between the
parties who can
establish stipulations, clauses,
terms and conditions
as they may
deem convenient, including
the laws which
they wish to
govern their respective
obligations, as long
as they are
not contrary to law, morals, good
customs, public order or public policy.
It is hornbook
principle, however, that
the party invoking
the application of a foreign law
has the burden of proving the law, under the
doctrine of processual presumption which, in this case, petitioners
failed to discharge.
The Courts ruling
in EDI<Staffbuilders Intl.,
v. NLRC[10] illuminates:
In the
present case, the
employment contract signed
by Gran specifically
states that Saudi
Labor Laws will govern matters not provided for in the contract (e.g. specific causes for
termination, termination procedures,
etc.). Being the
law intended by the parties (lex
loci intentiones) to apply to the
contract, Saudi Labor
Laws should govern
all matters relating
to the termination
of the employment
of Gran.
In international
law, the party who wants to have a foreign law applied
to a
dispute or case
has the burden
of proving the
foreign law. The
foreign law is
treated as a
question of fact
to be properly
pleaded and proved as the judge or labor arbiter cannot
take judicial notice of a foreign law.
He is presumed to know only
domestic or forum
law. Unfortunately for
petitioner, it did
not prove the
pertinent Saudi laws on the
matter; thus, the International Law doctrine
of presumed*identity approach
or processual presumption
comes into play. Where a foreign
law is not
pleaded or, even
if pleaded, is
not proved, the
presumption is that
foreign law is
the same as
ours. Thus, we
apply Philippine labor
laws in determining
the issues presented
before us.
The
Philippines does not
take judicial notice
of foreign laws, hence,
they must not
only be alleged;
they must be
proven. To prove
a foreign law,
the party invoking
it must present
a copy thereof
and comply with
Sections 24 and
25 of Rule
132 of the
Revised Rules of
Court which reads:
SEC. 24. Proof
of official record.
The record of public documents
referred to in paragraph (a) of
Section 19, when
admissible for any
purpose, may be
evidenced by an
official publication thereof
or by a
copy attested by
the officer having
the legal custody
of the record,
or by his
deputy, and accompanied,
if the record
is not kept
in the Philippines,
with a certificate
that such officer
has the custody.
If the office
in which the
record is kept
is in a
foreign country, the
certificate may be
made by a
secretary of the
embassy or legation,
consul general, consul,
vice consul, or
consular agent or by any
officer in the
foreign service of
the Philippines stationed
in the foreign
country in which
the record is
kept, and authenticated
by the seal
of his office.
(emphasis supplied)
SEC. 25. What
attestation of copy
must state. Whenever a
copy of a
document or record
is attested for the
purpose of the
evidence, the attestation must state, in substance, that
the copy is a correct
copy of the
original, or a specific
part thereof, as the case may be.
The attestation must be under the
official seal of the attesting officer, if there be any, or if he be the clerk of a court
having a seal, under the seal of such
court.
To prove the Kuwaiti law, petitioners submitted the
following:
a.
MOA between respondent
and the Ministry,
as represented by
ATCI, which provides
that the employee
is subject to
a probationary period
of one year
and that the
host countrys Civil
Service Laws and
Regulations apply;
b.
a translated
copy (Arabic to
English) of the
termination letter to
respondent stating that
she did not
pass the probation
terms, without specifying
the grounds therefor,
and a translated
copy of the
certificate of termination,both of
which documents were
certified by Mr.
Mustapha Alawi, Head
of the Department
of Foreign Affairs Office of
Consular Affairs Inslamic
Certification and Translation
Unit;
c.
and respondents letter of reconsideration to the Ministry, wherein she
noted that in her first eight (8) months
of employment, she
was given a
rating of Excellent
albeit it changed due to changes in her shift of work
schedule.
These
documents, whether taken
singly or as
a whole, do
not sufficiently prove
that respondent was
validly terminated as
a probationary employee
under Kuwaiti civil
service laws. Instead of
submitting a copy
of the pertinent
Kuwaiti labor laws
duly authenticated and
translated by Embassy
officials thereat, as
required under the
Rules, what petitioners
submitted were mere
certifications attesting only to the correctness of the translations
of the MOA and the termination letter
which does not prove at all that
Kuwaiti civil service
laws differ from
Philippine laws and
that under such Kuwaiti laws,
respondent was validly terminated. Thus
the subject certifications read:
x x x x
This is to
certify that the
herein attached translation/s from Arabic to English/Tagalog
and or vice versa
was/were presented to
this Office for
review and certification
and the same
was/were
found to be
in order. This
Office, however, assumes
no responsibility as to the
contents of the document/s.
This certification is being
issued upon request of the
interested party for
whatever legal purpose
it may serve. (emphasis supplied)
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