Published by rudy Date posted on April 15, 2009

This case of Tony, a Filipino seafarer, is an example of the judicial power of the Courts to review and declare as unconstitutional the acts of a co-equal branch like Congress.

Tony was hired by an International shipping company (MNC) through its local agent (GMS) as Chief Officer with a salary of $1,400 a month, overtime pay of $700 per month and 7 days per month vacation leave with pay. His contract was for one year, from March 19, 1998 to March 19, 1999.

On the date of his departure however, Tony was constrained to accept a downgraded employment contract for the position of Second Officer with a monthly salary of $1,000 upon reassurance and representation of GMS and MNC that he would be made Chief Officer by the end of April 1998.

But MNC and GMS did not honor its commitment to make Tony Chief Officer. Hence Tony refused to stay on as Second Officer and was repatriated to the Philippines on May 26, 1998 after serving only 2 months and 7 days of his contract.

Upon his return, Tony filed with the Labor Arbiter (LA) a complaint for illegal constructive dismissal and for payment of his salary plus overtime pay and vacation leave pay for 9 months and 23 days corresponding to the unexpired portion of his contract all totaling $26,442.73.

The LA declared his dismissal illegal but awarded him monetary benefits   only for 3 months of the unexpired portion of his contract totaling $8,770. The monetary award was further trimmed by the NLRC to $4,669.50 by removing the overtime and vacation leave pay. Both the LA and the NLRC based their monetary award on Section 10 of R.A. 8042 which provides that “In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to full reimbursement of …his salaries for the unexpired portion of his employment contract or for three months for every year of the unexpired term whichever is less”.

Tony impugned the constitutionality of said Section 10, R.A. 8042. He contended that it impinges on the equal protection clause (Section 1 Article III) for it treats OFWs differently from local Filipino workers by putting a cap on the amount of the lump sum salary to which OFWs are entitled in case of illegal dismissal while setting no limit to the same monetary award for local workers. It also defeats Section 18 Article II of the Constitution which guarantees the protection of the rights and welfare of all Filipino workers whether deployed locally or overseas. Was Tony correct?

Yes. Said section has a discriminatory intent against and an invidious impact on (1) OFWs with employment contracts of less than one year vis a vis OFWs with employment contracts of one year or more; (2) among OFWs with employment contracts of more than one year; and (3) OFWs vis a vis local workers with fixed period of employment.

First, the subject clause of R.A. 8042 introduced a different rule of monetary claims for illegally dismissed OFWs based on their employment periods singling out one category whose contracts have an unexpired portion of 1 year or more and subjecting them to the peculiar disadvantage of limiting their monetary awards to 3 months or for the unexpired portion thereof whichever is less, but all the while sparing the other category from such prejudice simply because the latter’s unexpired contracts fall short of 1 year.

The subject clause also creates a sub-layer of discrimination among OFWs whose contract periods are for more than one year: those who are illegally dismissed with less than 1 year left in their contracts shall be entitled to their salaries for the entire unexpired portion thereof, while those who are illegally dismissed with 1year or more remaining in their contracts shall be covered by the subject clause, and their monetary benefits limited to their salaries for 3 months only.

With the adoption of the subject clause, illegally dismissed OFWs with an unexpired portion of one year or more in their employment contracts have also since been differently treated in that their money claims are subject to a 3 month cap whereas no such limitation is imposed on local workers with fixed term employment.

Thus the subject clause violates the right of Tony and other OFWs to equal protection clause under Section 1, Article III of the Constitution. In conjunction with the equal protection clause, Article XIII Section 3 of the Constitution affording full protection to labor, local and overseas, organized or unorganized may also be applied. Along the same line of reasoning, the subject clause also violates Tony’s right to substantive due process for it deprives him of property consisting of monetary benefits without any existing valid government purpose. Hence Tony is entitled to his salaries for the entire unexpired period of 9 months and 23 days of his employment contract, but not to overtime pay and vacation leave pay as it has not been shown that he rendered overtime work (Serrano vs. Gallant Maritime Services and Marlow Navigation Co. Inc., G.R. 167614, March 24, 2009). –Jose C. Sison, Philippine Star

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

E-mail at: jcson@pldtdsl.net

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