Philippine labor cases involving expatriates

DIRECT FROM THE LABOR FRONT - Atty Josephus B Jimenez - The Freeman

Equal justice for all personnel and workers are guaranteed to all foreign workers and expatriates in this country. There are hundreds of thousands of Americans, Japanese, Koreans, Europeans, and even Arabs working in the Philippines. They are in hotels and restaurants as managers and chefs, in export processing zones as technical and managerial executives, in semi-conductor firms as engineers and consultants, and in power companies as general managers and corporate executives. There are foreign teachers in international schools, priests, nuns, and missionaries in various colleges and churches. Under Article 40 of the Labor Code, they are required to get an alien employment permit, provided there are no Filipinos who have the competence and willingness to do the same work.

The expats are well-paid and many of them are given free housing in exclusive enclaves like Ayala Alabang, Forbes, and Dasma in Metro Manila and in Maria Luisa in Cebu, or they are given world-class condos in choice locations, with free cars, drivers, security and household helpers. They are also covered with multi-million health, medical, and life insurance. In other words, these people belong to a privileged sector in our labor force, occupying top and well-paid positions, with all the perks, privileges, and powers. They also have equal access to our justice system in the event that they are illegally dismissed, or are subjected to unfair labor practices, or non-payment of their salaries and benefits. We will discuss two labor cases involving expats who have had problems with their employers.

The first case involves a company president, an American, who was unceremoniously kicked out by his fellow nationals. This is UTP/ A.J. versus (GR 205453, 05 Feb 2014). The tourist firm hired K as president in 2002 but for H. K. for a fixed term of five years. In 2007, his term expired but he was allowed to continue working thereafter. In 2009, K entered into huge contracts with big firms, after which he got a letter from the company lawyer telling him that his employment had already expired. He was also told that he could not continue working because of the alleged cruelty with which he dealt the personnel, for which reasons, criminal charges were supposedly filed against him.

K filed a case of illegal dismissal, which was decided in his favor by the Labor arbiter, and affirmed by the NLRC, the Court of Appeals and the Supreme Court. It was held that K was dismissed without cause and without due process. Management was unsure whether the services of K were terminated based on expiration of contract or due to alleged criminal charges. Also, the High Court made it clear that even foreigners and company Presidents are entitled to due process. Thus, the company was ordered to pay full back wages and separation pay in lieu of reinstatement. In cases like this, the back wages would extend from 2009 when he was dismissed to the time of finality of the 2014 ruling by the High Court. This could run into millions considering the five years of case pendency and the high salary rate the president was receiving.

The other case involves Dreamland Hotel Resort/ W.P. versus SJ (GR 191455, 12 Mar 2014). S J, an Australian was hired as hotel manager by his fellow Australian, W.P. J also lent P 100,000 US dollars to help him complete the construction of the hotel. For a number of months, J did his work but was not paid a salary. He was often berated in front of other personnel and guests, for which reason he tendered his resignation, effective after three months thereafter. By text message, his resignation was forthwith accepted and was told to leave immediately. He filed a case of illegal dismissal. He lost the case before the arbiter but won in his appeal.

In this case of Dreamland Resort, the Supreme Court held that there was constructive dismissal. It is because the management's acts of discrimination, insensibility and disdain became so unbearable that Mr S J had no more choice but to resign. Continued employment was rendered impossible, unreasonable, or unlikely because non-payment of salary was worse than demotion in rank and diminution in salary and benefits. By not paying S J his salaries, the owners were deemed to have virtually dismissed him. The Supreme Court invoked its earlier decision in Duldulao vs CA ( 546 Phil 22, 2007 ).

In both cases, the Supreme Court stressed the need for due process, which was denied. The court reminded that employers must furnish the employee a written notice specifying the charges. Then, the employee must be granted a reasonable opportunity to be heard, which means at least five working days of preparing for his defense. The charges should be specific and not couched in general terms. The notice should specify which company rules are violated and which grounds under the Labor Code is being used as the basis of the charges and the termination. The employee is entitled to legal counsel of his choice.

All these are familiar to us. We all know these. But what we do not know is that all these rights are available to expats. Even Americans and Australians (and all other nationalities for that matter) are entitled to security of tenure and due process. And that even company presidents and general managers are also protected by the law. Equal justice for all, regardless of rank, nationality, sex, or creed. We hope that our OFWs abroad are likewise treated without discrimination. We are all members of ILO, and we adopt the generally-accepted principles of international law as part of the law of the land.



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