58.

ALMODEL
VS
NLRC

G.R. No. 100641 June 14, 1993

NOCON, J.

ISSUE:

Subject of this petition for certiorari is the decision dated March 21, 1991 of the
National Labor Relations Commission in NLRC Case No.
00-00645-89 which reversed and set aside the Labor Arbiter's decision dated September
27, 1989 and ordered instead the payment of separation pay and financial assistance of
P100,000.00. Petitioner imputes grave abuse of discretion on the part of the
Commission and prays for the reinstatement of the Labor Arbiter's decision which
declared his termination on the ground of redundancy illegal. The public respondent
committed grave abuse of discretion amounting to (lack of) or in excess of jurisdiction in
declaring as valid and justified the termination of petitioner on the ground of
redundancy in the face of clearly established finding that petitioner's termination was
tainted with malice, bad faith and irregularity

RULING:

There is no dispute that petitioner was duly advised, one (1) month before, of the
termination of his employment on the ground of redundancy in a written notice by his
immediate superior, Mrs. Magdalena B.D. Lopez sometime in the afternoon of January
27, 1989. He was issued a check for P54,863.00 representing separation pay but in view
of his refusal to acknowledge the notice and the check, they were sent to him thru
registered mail on January 30, 1989. The Department of Labor and Employment was
served a copy of the notice of termination of petitioner in accordance with the pertinent
provisions of the Labor Code and the implementing rules.

The crux of the controversy lies on whether bad faith, malice and irregularity crept in
the abolition of petitioner's position of Cost Accounting Manager on the ground of
redundancy. Petitioner claims that the functions of his position were absorbed by the
Payroll/Mis/Finance Department under the management of Danny Ang Tan Chai, a
resident alien without any working permit from the Department of Labor and
Employment as required by law. Petitioner relies on the testimony of Raytheon's
witness to the effect that corollary functions appertaining to cost accounting were
dispersed to other units in the Finance Department. And granting that his department
has to be declared redundant, he claims that he should have been the Manager of the
Payroll/Mis/Finance Department which handled general accounting, payroll and

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encoding. As a B. S. Accounting graduate, a CPA with M.B.A. unit, 21 years of work
experience, and a natural born Filipino, he claims that he is better qualified than Ang
Tan Chai, a B.S. Industrial Engineer, hired merely as a Systems Analyst Programmer or its
equivalent in early 1987, promoted as MIS Manager only during the middle part of 1988
and a resident alien.

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59. GMC
VS
TORRES

G.R. No. 93666 April 22, 1991

FELICIANO, J.

ISSUE:

Earl Timothy Cone is a US citizen, who was hired by General Milling as a sports
consultant and assistant coach. He possessed an alien employment permit which was
changed to pre-arranged employee by the Board of Special Inquiry of the Commission
on Immigration and Deportation. GMC requested that Cones employment permit be
changed to a full-fledged coach, which was contested by The Basketball Coaches
Association of the Philippines. Alleging that GMC failed to show that there is no
competent person in the Philippines to do the coaching job. Secretary of Labor cancelled
Cones employment permit. Whether or not the Secretary of Labor act with grave abuse
of discretion in revoking Cones Alien Employment Permit?

RULING:

The Secretary of Labor did not act with grave abuse of discretion in revoking Cones
Alien Employment Permit. GMCs claim that hiring of a foreign coach is an employers
prerogative has no legal basis. Under Section 40 of the Labor Code, an employer seeking
employment of an alien must first obtain an employment permit from the Department
of labor.
GMCs right to choose whom to employ is limited by the statutory requirement of an
employment permit. The Labor Code empowers the Labor Secretary to determine as to
the availability of the services of a person in the Philippines who is competent, able and
willing at the time of the application to perform the services for which an alien is
desired. DOLE is the agency vested with jurisdiction to determine the question of
availability of local workers.

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60. ABACA
VS
CA

G.R. No. 127162 June 5, 1998

MARTINEZ, J.

ISSUE:

Petitioner Jose Abaca was tried before the Regional Trial Court of Calapan, Oriental
Mindoro, for the crime of illegal recruitment under Article 38 and 39 of President
Decree No. 442. The gist of the testimonies of the four complainants revolves on how
the accused (petitioner herein) recruited them to work abroad and made them believe
that the accused could work out their papers in consideration of a certain sum of
money. Specifically, the four complainants similarly testified that the accused was
introduced to them by his brothers, Perferio and Guiding Abaca, whom they already
knew for a long time. Sometime in the month of November 1988, the accused,
accompanied by his brothers, misrepresented himself to be a licensed recruiter and
convinced the four complainants that for a consideration they could work abroad at
Taipei either as a domestic helper or factory worker with a salary ranging from $300 to
$500 a month. The accused asked the sum of P14,000.00 each, but the complainants
requested if they could pay P6,000.00 first and before departure they will complete the
amount as demanded. Thus, the complainants paid partial amount at the office of the
accused at Five Ace Philippines located in Manila and all of them gave their own down
payment. Each complainant paid the accused P1,500.00 allegedly to be used for the
processing of the passport and the following amounts for processing. The issue is
whether or not petitioner is guilty of illegal recruitment?

RULING:

Yes, the crime of illegal recruitment is committed when two elements concur, namely:
(1) the offender has no valid license or authority required by law to enable one to
lawfully engage in recruitment and placement of workers; and (2) he undertakes either
any activity any activity within the meaning of "recruitment and placement" defined
under Article 13(b), or any prohibited practices enumerated under Article 34 of the
Labor Code. 4

Under the first element, a nonlicensee or nonholder of authority is any person,

corporation or entity which has not been issued a valid license or authority to engage in
recruitment and placement by the Secretary of Labor, or whose license or authority has

4
been suspended, revoked or canceled by the Philippine Overseas Employment
Administration (POEA) or the Secretary. 5 Agents or representatives appointed by a
licensee or a holder of authority but whose appointments are not previously authorized
by POEA are within the meaning of the term nonlicensee or nonholder of authority.