Illegally dismissed OFWs are entitled to full backwages
WHAT MATTERS MOST - Atty. Josephus B. Jimenez (The Freeman) - March 16, 2020 - 12:00am

If you are an OFW or you have a relative who had been deployed abroad, and was dismissed prior to the expiration of your contract, (due to no fault on your part), don't just cry and bear it. File a case with the NLRC, and you may collect millions from the recruiter who shall be answerable for the principal employer's fault.

Any OFW who is illegally dismissed by his foreign employer abroad is entitled to the total pay for his unexpired work contract. Thus, if he is an engineer hired on a 24-month contract to work in Kuwait at a total compensation package equal to P200,000 a month is illegally terminated, after two months of work, he should be paid a total of P4.4 million pesos, corresponding to the remaining 22 months of unworked portion of the agreement. You cannot sue your employer in Kuwait. Our courts do not have jurisdiction over his person. But you can sue your recruiter. He will be held liable for all his principal's fault.

This is not my opinion. All the 15 justices of the Supreme Court said so. There are at least two cases already, namely in the case of Antonio M. Serrano vs. Gallant Maritime, GR 167614, decided on March 24, 2009 unanimously by the 15 justices, and the case of Sameer vs. Joy C. Cabiles, GR 170139, decided on August 5, 2015. The Serrano ruling was written by a courageous lady Justice Austria Martinez, while the Cabiles decision was penned by this year's Bar exams chairman, UP Law professor Justice Marvic Leonen.

These two cases demonstrate that the Supreme Court is really the guardian of the workers' rights while Congress appears to be the champion for the recruiters. Here is why I say that boldly. The Labor Code, vintage 1974 provides that all workers who are illegally dismissed are entitled to full backwages, or the salaries from time of illegal dismissal up to reinstatement. RA 8042, which is supposed to be the Magna Carta of Labor, passed as a reaction to the infamous Flor Contemplacion case, surreptitiously inserted a provision limiting backwages to illegally dismissed OFWs to only three months. The case of Serrano vs. Gallant declared that provision unconstitutional.

Then again, RA 10022, which was passed in secret, inserted the same treacherous provision. Again, the Supreme Court, in Sameer vs. Cabiles declared that inserted provision unconstitutional. Congress keeps on limiting the rights of OFWs. The Supreme Court keeps on reinstating them, and defending them against the lobby of recruiters in this country. The Supreme Court keeps on saying that to reduce backwages to three months is a gross violation of the constitutional provision called the equal protection clause. OFWs cannot be given lesser rights granted to other workers.

I do not know why we keep on electing congressmen who work against the interests of the people. Perhaps the best historic milestone we can leave to the future generation is to abolish the Lower House and enlarge the Senate to 51 members with three senators each for the 17 regions. We do not need too many congressmen who are NATOs (No Action, Talk Only). With due respect to my idol, Congressman Eddiegul, who should be a senator by now. He has never voted against the workers in the many years he has been in Congress.

josephusbjimenez@gmail.com

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