People vs.

Reyes
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GR 101127-31, 18 November 1993
FACTS
Lorie Garcia delivered rice to Cresencia Reyes, as accommodation to her friend Manny Cabrera who had no
more stock to sell. Reyes issued 6 checks for 6 orders delivered in different dates. Only 3 of the 6 checks were
made good, the other 3 were returned by the bank due to insufficient funds. Garcia notified Reyes of the
dishonor and the latter promised to pay her their total value. Despite demands, Reyes failed to make good the
checks or replace them with cash. 3 criminal cases for violation of BP 22 and 2 criminal cases for estafa were
filed against Reyes.
ISSUE
Whether a single act of issuing a check may entail criminal liability of both violation of BP 22 and Article 315
of the Revised Penal Code (Estafa).
HELD
A single criminal act may give rise to a multiplicity of offenses and where there is a variance or differences
between the elements of an offense in one law and another law. The gravamen of the offense punished by BP
22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentment for
payment; and act deemed pernicious and inimical to public welfare. BP 22 applies even where the dishonored
checks were issued merely in the form of a deposit or a guaranty and not as actual payment, as the law does not
make any distinction. On the other hand, the checks were not payment for a pre-existing obligation nut as
consideration for each shipment of rice. The checks were issued as an inducement for the surrender by the
party deceived of her property. Reyes made good 3 of the checks, giving assurance to Garcia that the
remaining checks were fully funded. Her failure to make good the checks raised the prima facie inference of
deceit.

G.R. No. 105204 March 9, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
THELMA REYES and NICK REYES, accused, THELMA REYES accused-appellant.

MENDOZA, J .:
This is an appeal from the decision of the Regional Trial Court of Laguna, Branch 35, the dispositive
portion of which reads as follows:
WHEREFORE, the prosecution having established the guilt of the accused Thelma
Reyes beyond reasonable doubt of Illegal Recruitment defined and penalized under
Article 38, P.D. No. 442 as amended, the Court hereby sentences said accused to
suffer a penalty of Reclusion Perpetua and to pay a fine in the amount of
P100,000.00 and to indemnify Rosalino Bitang and Fabian Baradas, Mr. de Castro,
Lorenzo Blanza and Ramon Mendoza the sum of P45,000.00 and to pay the costs.
Appellant Thelma Reyes was charged together with her husband Nick Reyes, but the latter was at
large and so has remained up to now. Consequently, the trial proceeded only with respect to Thelma
Reyes in view of her plea of not guilty.
The prosecution's first witness, Rosalino Bitang, testified that sometime in 1985, he and five others
(Lorenzo Blanza, Fabian Baradas, Edgardo Garcia, Ramon Mendoza and Dionisio de Castro) went
to the house of the appellant in Los Baos, Laguna, to apply for employment abroad; that he gave
P5,000 to Nick Reyes as downpayment for the recruitment fees; that Nick Reyes handed the money
to his wife Thelma Reyes, and afterward issued a receipt (Exh. A), which reads:
RECEIPT
RECEIVED from MR. RIZALINO BITANG the amount of FIVE THOUSAND
(P5,000.00) PESOS, Philippine Currency.
Manila, September 19, 1985.
(SGD.) NICK N.
REYES, SR.
Bitang testified that on January 14, 1986, he and his companions paid P34,000.00 more to the
spouses through Dionisio de Castro. Of this amount, P8,500.00 was for his (witness Bitang's)
placement fee, while the balance was for payment of his companions' fees. As before Nick Reyes
received the amount and gave it to his wife, Thelma Reyes, after which he issued a receipt (Exh. B)
which reads:
RECEIPT
RECEIVED from MR. DIONISIO DE CASTRO the amount of THIRTY FOUR
THOUSAND (P34,000.00) Pesos, Philippine Currency for the following: Edgardo
Garcia Ramon Mendoza Lorenzo Blanza, Fabian Barradas, and Rosalino Bitang.
Manila, January 14, 1986.
(SGD) NICHOL
REYES SR.
According to complainant, Nick Reyes promised to notify them as soon as they were accepted for
employment so that they could leave for abroad, but this promise was not fulfilled. He said that he
checked with the Philippine Overseas Employment Administration (POEA) and found out that the
spouses were not licensed recruiters. A certification to this effect was issued to him by the POEA.
(Exh. C)
The other complainant Fabian Baradas also testified. He stated that he was introduced to Thelma
Reyes sometime in September, 1985 at Lemery, Batangas, while the latter was recruiting workers
for deployment in Saudi Arabia.
On several occasions between September and December, 1985, he and several others went to
appellant's house at Junction, Los Baos Laguna for overseas employment and were required to
submit travel documents, such as passports, birth certificates and NBI clearances and to pay various
amounts of money.
On January 9, 1986, he gave P6,000.00 to Nick and Thelma Reyes, through his godfather Dionisio
de Castro, for which Nick Reyes issued to him a receipt (Exh. E), reading:
RECEIPT
Received from Mr. Dionisio de Castro the amount of Six Thousand (P6,000.00)
Pesos, Philippine Currency.
Manila, January 9, 1986.
(SGD.) NICK N.
REYES
On January 14, 1986, he paid the additional amount of P12,000.00 to Reyes through Dionisio de
Castro as evidenced by Exh. B. The money was supposed to cover the cost of the processing
papers. However, as no job was forthcoming, he went to the POEA to inquire, and, like Rosalino
Bitang, he learned that the spouses were not licensed recruiters.
The complainants both testified that as soon as they obtained the POEA certification that appellant
and her husband were not licensed to recruit, they demanded from the spouses the return of their
money and when the latter did not give back their money, they filed the complaint in this case.
Only the appellant Thelma Reyes testified in her behalf. She claimed that she met the witnesses
Bitang and Baradas only when they were looking for her husband at their house in Los Baos,
Laguna, between March and May of 1986. She denied having met them before.
She admitted that the receipts (Exhs. A, B and E) were all written and signed by her husband, but
she denied she had anything to do with her husband's activities. She said they had been estranged
since March 1986 precisely because she did not approve of her husband's illegal activities. She
claimed that she had told her husband that, even though they were poor, they could live on their
earning and the monthly support of P10,000.00 which they were receiving from her mother-in-law
who lived in the United States.
According to appellant, she and her husband saw each other only occasionally, whenever they
visited their children in Los Baos where they were studying because she lived in Singalong, Manila.
She presumed that her husband had told complainants to go to the house in Los Baos which they
were merely renting for their children and that she was included in the complaint only because her
husband could not be located.
On cross-examination she admitted that there were fourteen (14) other cases of Illegal Recruitment
filed and/or pending against her and her husband in different courts of Manila and claimed that some
of the cases had been dismissed or settled after she had refunded the money of the complainants.
Testifying on rebuttal for the prosecution, Rosalino Bitang stated that it was Thelma Reyes herself
who gave the job applicants the address and sketch of their house in Los Baos, Laguna, and that
she represented to him that she was negotiating for job placements abroad. Bitang reiterated that
money paid to Nick Reyes was given to Thelma Reyes who counted it before Nick Reyes issued
receipts.
On the basis of the parties' evidence, the trial court found Thelma Reyes guilty of illegal recruitment
and sentenced her as stated in the beginning. Hence this appeal.
Appellant claims that the trial court erred
1. IN FINDING THAT THE PROSECUTION HAS MARSHALLED THE QUANTUM
OF EVIDENCE SUFFICIENT TO CONVICT THE ACCUSED OF THE CRIME OF
ILLEGAL RECRUITMENT UNDER ARTICLE 38, P.D. NO. 442.
2. IN NOT CONSIDERING THE FACT THAT THERE ARE ONLY TWO
COMPLAINANTS IN THE INFORMATION FILED ON DECEMBER 11, 1986
AGAINST THE ACCUSED HENCE THEY CANNOT BE PROSECUTED UNDER
ARTICLE 38, P.D. NO. 442.
3. IN GIVING CREDENCE TO THE VERBAL TESTIMONIES OF PRIVATE
COMPLAINANTS RATHER THAN THE DOCUMENTARY EVIDENCE.
We shall now deal with these contentions of appellant.
First. Appellant contends that the testimonies of Bitang and Baradas are insufficient to sustain
conviction. She contends that Dionisio de Castro, who allegedly advanced P34,000.00 for the
complainants and their companions, should have been presented to corroborate the claim of the
claimants.
The contention is without merit. To be sure, an accused can be convicted on the strength of the
testimony of a single witness, if such testimony is credible and positive and produces a conviction
beyond reasonable doubt.
1
That the witness is also the complainant in a case makes little difference as
long as the court is convinced beyond doubt that the witness is telling the truth. For instance,
in Hernandez v. Court of Appeals
2
this Court held:
Petitioner claims that the decision of the trial court is not supported by the evidence,
which is contrary to the findings of the Court of Appeals that said decision is "in
accordance with law and the evidence" (Rollo,
p. 12). He points out that the appellate court should not have believed the trial court's
conclusion that "the sole testimony of the offended party would have sufficed to
sustain her assertions" (Rollo, p. 47). He claims that self-serving declarations of a
party favorable to himself are not admissible and that none of the alleged witnesses
to the transactions were presented.
The common objection known as "self-serving" is not correct because almost all
testimonies are self-serving. The proper basis for objection is "hearsay" (Wenke,
Making and Meeting Objections, 69).
Petitioner fails to take into account the distinction between self-serving statements
and testimonies made in court. Self-serving statements are those made by a party
out of court advocating his own interest; they do not include a party's testimony as a
witness in court (National Development Co. v. Workmen's Compensation
Commission, 19 SCRA 861 [1967]).
Self-serving statements are inadmissible because the adverse party is not given the
opportunity for cross-examination, and their admission would encourage fabrication
of testimony. This cannot be said of a party's testimony in court made under oath,
with full opportunity on the part of the opposing party for cross-examination.
It is not true that none of the alleged witnesses to the transactions was presented in
court (Rollo, p. 13). Yolanda Dela Rosa, an eye-witness to some of the transactions,
testified for the prosecution. Assuming that Dela Rosa was not presented as a
witness, the testimony of de Leon sufficed to sustain the conviction of petitioner. The
conviction of an accused may be on the basis of the testimony of a single witness
(People v. Rumeral, 200 SCRA 194 [1991]). In determining the value and credibility
of evidence, witnesses are to be weighed, not counted (People v. Villalobos, 209
SCRA 304 [1992]).
In the case at bar, the trial court gave weight to the testimonies of complainants because,
Except for the denial of accused Thelma Reyes that she has nothing to do with the
recruitment of the complaining witnesses as well as the collection of the amount from
them, said accused failed to sufficiently overthrow the convincing testimony of the
complaining witnesses that accused Thelma Reyes was present and even counted
the money evidenced by Exhibit[s] "A" and "B" after her husband hands it to her and
that her husband Nick Reyes who issued the receipts to the complainants.
Moreover, when the issue is the credibility of witnesses, appellate courts will in general not disturb
the findings of the trial court unless certain facts or circumstances of weight have been overlooked,
misunderstood or misapplied which, if considered, might affect the result of the case. This is
because the trial court heard the testimony of the witnesses and observed their deportment and
manner of testifying during the trial.
3

With respect to the fact that Dionisio de Castro was not presented to testify, it is sufficient to say that
there was no necessity for this because there is no question that the amount of P34,000.00 which he
had advanced for the complainants and others was received by Nick Reyes.
Second. Appellant contends that the receipts constitute the best evidence to show that only Nick
Reyes received the amounts stated therein because only his signature appears on the receipts. That
the receipts were signed by Nick Reyes alone only proves that it was to him that the amounts were
paid. What, on the other hand, complainants are saying is that appellant is guilty because she and
her husband, conspiring together, acted and made them believe that they were licensed recruiters. If
so, the acts of the husband were likewise those of her. Indeed, the evidence shows that after
receiving the amounts from complainants, Nick Reyes handed the money paid to the appellant and
that Nick Reyes issued the receipts in question only after appellant Thelma Reyes had counted it.
Appellant claims that she and her husband separated in 1985 precisely because she did not want to
be involved in his illegal activities. This seems to be us to be a convenient way to dissociate herself,
but her mere claim is not enough to overcome the evidence of the prosecution. If there was anyone
whose testimony needed corroboration it was appellant.
Taking another tack, appellant points out that complainants cannot explain why the purpose for
which payment was made is not stated in the receipts nor why the receipts purport to have been
issued in "Manila" and not in Los Baos where they said they had made all the payments. She
argues that if the illegal recruitment was made in Manila, then the Regional Trial Court of Laguna
had no jurisdiction to try the case.
The circumstances pointed out by appellant only underscores the deviousness of appellant and her
husband. Complainants have an elementary education only. It is not for them but for appellant
and her husband to explain these circumstances because it was the latter who made-the receipts.
It is not far fetched that they made the receipts this way precisely to create doubt as to their real
import. It is enough that complainants positively identified the appellant and her husband as having
illegally recruited them and collected money from them. Their testimonies have not been
successfully rebutted by the lame denial of appellant.
Third. Appellant contends that in any event the testimonies of the two complainants could not be the
basis for a finding of illegal recruitment on a large scale and for imposing the penalty of life
imprisonment on her. The Labor Code prescribes the penalty of life imprisonment for illegal
recruitment when committed on a "large scale." Art. 38 (b) of the Code provides:
(b) Illegal recruitment when committed by a syndicate or in large scale shall be
considered an offense involving economic sabotage and shall be penalized in
accordance with Article 39 hereof.
And Art. 39 (a) provides:
Art. 39. Penalties. (a) The penalty of life imprisonment and a fine of One Hundred
Thousand Pesos (P100,000) shall be imposed if illegal recruitment constitutes
economic sabotage as defined herein.
We agree with this contention.
In this case the information against appellant mentioned only the two complainants Fabian Baradas
and Rosalino Bitang as having been illegally recruited by appellant and her husband. The trial Court,
however, held appellant guilty of illegal recruitment on a large scale because aside from Baradas
and Bitang, appellant and her husband allegedly recruited others, namely, Lorenzo Blanza, Edgardo
Garcia, Ramon Mendoza, and Dionisio de Castro.
This is error. To be sure, Blanza and Garcia, according to complainant Baradas were able to obtain
overseas employment. On the other hand, with respect to De Castro there is no evidence that he,
too, had been illegally recruited by the spouses. What appears in the record is that he advanced the
amount of P34,000.00 in behalf of the complainants and the three others. Only two, therefore, had
been illegally recruited.
There are, it is said, 14 other cases filed pending in the courts against the accused for illegal
recruitment. These cases cannot be taken into account for the purpose of Art. 38(b). When the Labor
Code speaks of illegal recruitment "committed against three (3) or more persons individually or as a
group," it must be understood as referring to the number of complainants in each case who are
complainants therein, otherwise, prosecutions for single crimes of illegal recruitment can be
cummulated to make out a case of large scale illegal recruitment. In other words, a conviction for
large scale illegal recruitment must be based on a finding in each case of illegal recruitment of three
or more persons whether individually or as a group.
Moreover, even it Blanza and Garcia had been illegally recruited so as to make the number of
persons illegally recruited four and make the crime that of illegal recruitment on a large scale, since
this was not alleged in the information and this is the more serious offense which includes that which
was charged, the appellant can only be found guilty of the less serious offense charged, pursuant to
Rule 120, 4.
Accordingly, appellant must be punished under Art. 39(c) of the Labor Code which provides:
(c) Any person who is neither a licensee nor a holder of authority under this Title
found violating any provision thereof or its implementing rules and regulations shall
upon conviction thereof, suffer the penalty of imprisonment of not less than four
years nor more than eight years or a fine of not less than P20,000 nor more than
P100,000 or both such imprisonment and fine, at the discretion of the court.
WHEREFORE, the decision appealed from is SET ASIDE and another one is rendered, finding
appellant Thelma Reyes guilty of illegal recruitment on two (2) counts and is hereby sentenced for
each crime to suffer imprisonment of 6 years and 1 day to 8 years and pay a fine of P50,000.00; and
ordered to indemnify Rosalino Bitang in the amount of P13,500.00 and Fabian Baradas in the
amount of P18,000.00 and pay the costs.
SO ORDERED.

Mercidar Fishing Corporation vs. NLRC, G.R.
No. 112574. October 8, 1998; 297 SCRA 440
Posted by Pius Morados on November 10, 2011
(Labor Standards Fishermen are not field personnels, Article 82)
Facts: Private respondent employed as a bodegero or ships quartermaster complained of being constructively
dismissed by petitioner corporation when the latter refused him assignments aboard its boats after he had reported to
work. The Larbor Arbiter rendered a decision ordering petitioner corporation to reinstate complainant with back
wages, pay him his 13
th
month pay and incentive leave. Petitioner claims that it cannot be held liable for service
incentive leave pay by fishermen in its employ as the latter supposedly are field personnel and thus not entitled to
such pay under the Labor Code.
Article 82 of the Labor Code provides among others that field personnel shall refer to non-agricultural employees
who regularly perform their duties away from the principal place of business or branch of office of the employer and
whose actual hours of work in the field cannot be determined with reasonable certainty.
Issue: WON fishermen are considered field personnel.
Held: No. Although fishermen perform non-agricultural work away from their employers business offices, the fact
remains that throughout the duration of their work they are under the effective control and supervision of the employer
through the vessels patron or master.
[G.R. No. 112574. October 8, 1998]
MERCIDAR FISHING CORPORATION represented by its President
DOMINGO B. NAVAL, petitioner, vs. NATIONAL LABOR
RELATIONS COMMISSION and FERMIN AGAO,
JR., respondents.
D E C I S I O N
MENDOZA, J .:
This is a petition for certiorari to set aside the decision, dated August 30, 1993, of
the National Labor Relations Commission dismissing the appeal of petitioner Mercidar
Fishing Corporation from the decision of the Labor Arbiter in NLRC NCR Case No. 09-
05084-90, as well as the resolution dated October 25, 1993, of the NLRC denying
reconsideration.
This case originated from a complaint filed on September 20, 1990 by private
respondent Fermin Agao, Jr. against petitioner for illegal dismissal, violation of P.D. No.
851, and non-payment of five days service incentive leave for 1990. Private respondent
had been employed as a bodegero or ships quartermaster on February 12, 1988. He
complained that he had been constructively dismissed by petitioner when the latter
refused him assignments aboard its boats after he had reported to work on May 28,
1990.
[1]

Private respondent alleged that he had been sick and thus allowed to go on leave
without pay for one month from April 28, 1990 but that when he reported to work at the
end of such period with a health clearance, he was told to come back another time as
he could not be reinstated immediately. Thereafter, petitioner refused to give him
work. For this reason, private respondent asked for a certificate of employment from
petitioner on September 6, 1990. However, when he came back for the certificate on
September 10, petitioner refused to issue the certificate unless he submitted his
resignation. Since private respondent refused to submit such letter unless he was given
separation pay, petitioner prevented him from entering the premises.
[2]

Petitioner, on the other hand, alleged that it was private respondent who actually
abandoned his work. It claimed that the latter failed to report for work after his leave
had expired and was, in fact, absent without leave for three months until August 28,
1998. Petitioner further claims that, nonetheless, it assigned private respondent to
another vessel, but the latter was left behind on September 1, 1990. Thereafter, private
respondent asked for a certificate of employment on September 6 on the pretext that he
was applying to another fishing company. On September 10, 1990, he refused to get
the certificate and resign unless he was given separation pay.
[3]

On February 18, 1992, Labor Arbiter Arthur L. Amansec rendered a decision
disposing of the case as follows:
ACCORDINGLY, respondents are ordered to reinstate complainant
with backwages, pay him his 13th month pay and incentive leave pay
for 1990.
All other claims are dismissed.
SO ORDERED.
Petitioner appealed to the NLRC which, on August 30, 1993, dismissed the appeal
for lack of merit. The NLRC dismissed petitioners claim that it cannot be held liable for
service incentive leave pay by fishermen in its employ as the latter supposedly are field
personnel and thus not entitled to such pay under the Labor Code.
[4]

The NLRC likewise denied petitioners motion for reconsideration of its decision in
its order dated October 25, 1993.
Hence, this petition. Petitioner contends:
I
THE RESPONDENT COMMISSION PALPABLY ERRED IN RULING AND
SUSTAINING THE VIEW THAT FISHING CREW MEMBERS, LIKE FERMIN
AGAO, JR., CANNOT BE CLASSIFIED AS FIELD PERSONNEL UNDER
ARTICLE 82 OF THE LABOR CODE.
II
THE RESPONDENT COMMISSION ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT
UPHELD THE FINDINGS OF THE LABOR ARBITER THAT HEREIN
PETITIONER HAD CONSTRUCTIVELY DISMISSED FERMIN AGAO, JR.,
FROM EMPLOYMENT.
The petition has no merit.
Art. 82 of the Labor Code provides:
ART. 82. Coverage. - The provisions of this Title [Working Conditions
and Rest Periods] shall apply to employees in all establishments and
undertakings whether for profit or not, but not to government
employees, field personnel, members of the family of the employer
who are dependent on him for support, domestic helpers, persons in
the personal service of another, and workers who are paid by results
as determined by the Secretary of Labor in appropriate regulations.
. . . . . . . . . .
Field personnel shall refer to non-agricultural employees who
regularly perform their duties away from the principal place of
business or branch office of the employer and whose actual hours of
work in the field cannot be determined with reasonable certainty.
Petitioner argues essentially that since the work of private respondent is performed
away from its principal place of business, it has no way of verifying his actual hours of
work on the vessel. It contends that private respondent and other fishermen in its
employ should be classified as field personnel who have no statutory right to service
incentive leave pay.
In the case of Union of Filipro Employees (UFE) v. Vicar,
[5]
this Court explained the
meaning of the phrase whose actual hours of work in the field cannot be determined
with reasonable certainty in Art. 82 of the Labor Code, as follows:
Moreover, the requirement that actual hours of work in the field
cannot be determined with reasonable certainty must be read in
conjunction with Rule IV, Book III of the Implementing Rules which
provides:
Rule IV Holidays with Pay
Section 1. Coverage - This rule shall apply to all employees
except:
. . . . . . . . . .
(e) Field personnel and other employees whose
time and performance is unsupervised by the employer xxx
(Italics supplied)
While contending that such rule added another element not found in
the law (Rollo, p. 13), the petitioner nevertheless attempted to show
that its affected members are not covered by the abovementioned
rule. The petitioner asserts that the companys sales personnel are
strictly supervised as shown by the SOD (Supervisor of the Day)
schedule and the company circular dated March 15, 1984 (Annexes 2
and 3, Rollo, pp. 53-55).
Contrary to the contention of the petitioner, the Court finds that the
aforementioned rule did not add another element to the Labor Code
definition of field personnel. The clause whose time and performance
is unsupervised by the employer did not amplify but merely
interpreted and expounded the clause whose actual hours of work in
the field cannot be determined with reasonable certainty. The former
clause is still within the scope and purview of Article 82 which defines
field personnel. Hence, in deciding whether or not an employees
actual working hours in the field can be determined with reasonable
certainty, query must be made as to whether or not such employees
time and performance is constantly supervised by the employer.
[6]

Accordingly, it was held in the aforementioned case that salesmen of Nestle
Philippines, Inc. were field personnel:
It is undisputed that these sales personnel start their field work at 8:00
a.m. after having reported to the office and come back to the office at
4:00 p.m. or 4:30 p.m. if they are Makati-based.
The petitioner maintains that the period between 8:00 a.m. to 4:00 or
4:30 p.m. comprises the sales personnels working hours which can
be determined with reasonable certainty.
The Court does not agree. The law requires that the actual hours of
work in the field be reasonably ascertained. The company has no way
of determining whether or not these sales personnel, even if they
report to the office before 8:00 a.m. prior to field work and come back
at 4:30 p.m., really spend the hours in between in actual field work.
[7]

In contrast, in the case at bar, during the entire course of their fishing voyage,
fishermen employed by petitioner have no choice but to remain on board its
vessel. Although they perform non-agricultural work away from petitioners business
offices, the fact remains that throughout the duration of their work they are under the
effective control and supervision of petitioner through the vessels patron or master as
the NLRC correctly held.
[8]

Neither did petitioner gravely abuse its discretion in ruling that private respondent
had constructively been dismissed by petitioner. Such factual finding of both the NLRC
and the Labor Arbiter is based not only on the pleadings of the parties but also on a
medical certificate of fitness which, contrary to petitioners claim, private respondent
presented when he reported to work on May 28, 1990.
[9]
As the NLRC held:
Anent grounds (a) and (b) of the appeal, the respondent, in a nutshell,
would like us to believe that the Arbiter abused his discretion (or
seriously erred in his findings of facts) in giving credence to the factual
version of the complainant. But it is settled that (W)hen confronted
with conflicting versions of factual matters, the Labor Arbiter has the
discretion to determine which party deserves credence on the basis
of evidence received. [Gelmart Industries (Phils.), Inc. vs. Leogardo,
155 SCRA 403, 409, L-70544, November 5, 1987]. And besides, it is
settled in this jurisdiction that to constitute abandonment of position,
there must be concurrence of the intention to abandon and some overt
acts from which it may be inferred that the employee concerned has
no more interest in working (Dagupan Bus Co., Inc. vs. NLRC, 191
SCRA 328), and that the filing of the complaint which asked for
reinstatement plus backwages (Record, p. 20) is inconsistent with
respondents defense of abandonment (Hua Bee Shirt Factory vs.
NLRC, 188 SCRA 586).
[10]

It is trite to say that the factual findings of quasi-judicial bodies are generally binding
as long as they are supported substantially by evidence in the record of the case.
[11]
This
is especially so where, as here, the agency and its subordinate who heard the case in
the first instance are in full agreement as to the facts.
[12]

As regards the labor arbiters award which was affirmed by respondent NLRC, there
is no reason to apply the rule that reinstatement may not be ordered if, as a result of the
case between the parties, their relation is strained.
[13]
Even at this late stage of this
dispute, petitioner continues to reiterate its offer to reinstate private respondent.
[14]

WHEREFORE, the petition is DISMISSED.
SO ORDERED.
KING OF KINGS TRANSPORT, G.R. No. 166208
INC., CLAIRE DELA FUENTE,
and MELISSA LIM, Present:
Petitioners,
QUISUMBING, J., Chairperson,
CARPIO,
CARPIO MORALES,
- versus - TINGA, and
VELASCO, JR., JJ.

Promulgated:
SANTIAGO O. MAMAC,
Respondent. June 29, 2007
x-----------------------------------------------------------------------------------------x


D E C I S I O N


VELASCO, JR., J .:

Is a verbal appraisal of the charges against the employee a breach of the
procedural due process? This is the main issue to be resolved in this plea for
review under Rule 45 of the September 16, 2004 Decision
[1]
of the Court of
Appeals (CA) in CA-GR SP No. 81961. Said judgment affirmed the dismissal of
bus conductor Santiago O. Mamac from petitioner King of Kings Transport, Inc.
(KKTI), but ordered the bus company to pay full backwages for violation of the
twin-notice requirement and 13th-month pay. Likewise assailed is the December
2, 2004 CA Resolution
[2]
rejecting KKTIs Motion for Reconsideration.


The Facts

Petitioner KKTI is a corporation engaged in public transportation and
managed by Claire Dela Fuente and Melissa Lim.

Respondent Mamac was hired as bus conductor of Don Mariano Transit
Corporation (DMTC) on April 29, 1999. The DMTC employees including
respondent formed theDamayan ng mga Manggagawa, Tsuper at Conductor-
Transport Workers Union and registered it with the Department of Labor and
Employment. Pending the holding of a certification election in DMTC, petitioner
KKTI was incorporated with the Securities and Exchange Commission which
acquired new buses. Many DMTC employees were subsequently transferred to
KKTI and excluded from the election.

The KKTI employees later organized the Kaisahan ng mga Kawani sa King
of Kings (KKKK) which was registered with DOLE. Respondent was elected
KKKK president.

Respondent was required to accomplish a Conductors Trip Report and
submit it to the company after each trip. As a background, this report indicates the
ticket opening and closing for the particular day of duty. After submission, the
company audits the reports. Once an irregularity is discovered, the company issues
an Irregularity Report against the employee, indicating the nature and details of
the irregularity. Thereafter, the concerned employee is asked to explain the
incident by making a written statement or counter-affidavit at the back of the same
Irregularity Report. After considering the explanation of the employee, the
company then makes a determination of whether to accept the explanation or
impose upon the employee a penalty for committing an infraction. That decision
shall be stated on said Irregularity Report and will be furnished to the employee.

Upon audit of the October 28, 2001 Conductors Report of respondent,
KKTI noted an irregularity. It discovered that respondent declared several sold
tickets as returned tickets causing KKTI to lose an income of eight hundred and
ninety pesos. While no irregularity report was prepared on the October 28,
2001 incident, KKTI nevertheless asked respondent to explain the discrepancy. In
his letter,
[3]
respondent said that the erroneous declaration in his October 28, 2001
Trip Report was unintentional. He explained that during that days trip, the
windshield of the bus assigned to them was smashed; and they had to cut short the
trip in order to immediately report the matter to the police. As a result of the
incident, he got confused in making the trip report.

On November 26, 2001, respondent received a letter
[4]
terminating his
employment effective November 29, 2001. The dismissal letter alleged that
the October 28, 2001irregularity was an act of fraud against the company. KKTI
also cited as basis for respondents dismissal the other offenses he allegedly
committed since 1999.

On December 11, 2001, respondent filed a Complaint for illegal dismissal,
illegal deductions, nonpayment of 13th-month pay, service incentive leave, and
separation pay. He denied committing any infraction and alleged that his dismissal
was intended to bust union activities. Moreover, he claimed that his dismissal was
effected without due process.

In its April 3, 2002 Position Paper,
[5]
KKTI contended that respondent was
legally dismissed after his commission of a series of misconducts and misdeeds. It
claimed that respondent had violated the trust and confidence reposed upon him by
KKTI. Also, it averred that it had observed due process in dismissing respondent
and maintained that respondent was not entitled to his money claims such as
service incentive leave and 13th-month pay because he was paid on commission or
percentage basis.

On September 16, 2002, Labor Arbiter Ramon Valentin C. Reyes rendered
judgment dismissing respondents Complaint for lack of merit.
[6]


Aggrieved, respondent appealed to the National Labor Relations
Commission (NLRC). On August 29, 2003, the NLRC rendered a Decision, the
dispositive portion of which reads:

WHEREFORE, the decision dated 16 September 2002 is MODIFIED in that
respondent King of Kings Transport Inc. is hereby ordered to indemnify complainant in
the amount of ten thousand pesos (P10,000) for failure to comply with due process prior
to termination.

The other findings are AFFIRMED.

SO ORDERED.
[7]



Respondent moved for reconsideration but it was denied through
the November 14, 2003 Resolution
[8]
of the NLRC.

Thereafter, respondent filed a Petition for Certiorari before the CA urging
the nullification of the NLRC Decision and Resolution.

The Ruling of the Court of Appeals

Affirming the NLRC, the CA held that there was just cause for respondents
dismissal. It ruled that respondents act in declaring sold tickets as returned tickets
x x x constituted fraud or acts of dishonesty justifying his dismissal.
[9]


Also, the appellate court sustained the finding that petitioners failed to
comply with the required procedural due process prior to respondents termination.
However, following the doctrine in Serrano v. NLRC,
[10]
it modified the award of
PhP 10,000 as indemnification by awarding full backwages from the time
respondents employment was terminated until finality of the decision.

Moreover, the CA held that respondent is entitled to the 13th-month pay
benefit.

Hence, we have this petition.

The Issues

Petitioner raises the following assignment of errors for our consideration:

Whether the Honorable Court of Appeals erred in awarding in favor of
the complainant/private respondent, full back wages, despite the denial
of his petition for certiorari.

Whether the Honorable Court of Appeals erred in ruling that KKTI did
not comply with the requirements of procedural due process before
dismissing the services of the complainant/private respondent.

Whether the Honorable Court of Appeals rendered an incorrect decision
in that [sic] it awarded in favor of the complaint/private respondent,
13
th
month pay benefits contrary to PD 851.
[11]


The Courts Ruling

The petition is partly meritorious.

The disposition of the first assigned error depends on whether petitioner
KKTI complied with the due process requirements in terminating respondents
employment; thus, it shall be discussed secondly.

Non-compliance with the Due Process Requirements

Due process under the Labor Code involves two aspects: first, substantive
the valid and authorized causes of termination of employment under the Labor
Code; andsecond, proceduralthe manner of dismissal.
[12]
In the present case, the
CA affirmed the findings of the labor arbiter and the NLRC that the termination of
employment of respondent was based on a just cause. This ruling is not at issue
in this case. The question to be determined is whether the procedural requirements
were complied with.

Art. 277 of the Labor Code provides the manner of termination of
employment, thus:

Art. 277. Miscellaneous Provisions.x x x

(b) Subject to the constitutional right of workers to security of
tenure and their right to be protected against dismissal except for a just
and authorized cause without prejudice to the requirement of notice
under Article 283 of this Code, the employer shall furnish the worker
whose employment is sought to be terminated a written notice containing
a statement of the causes for termination and shall afford the latter ample
opportunity to be heard and to defend himself with the assistance of his
representative if he so desires in accordance with company rules and
regulations promulgated pursuant to guidelines set by the Department of
Labor and Employment. Any decision taken by the employer shall be
without prejudice to the right of the worker to contest the validity or
legality of his dismissal by filing a complaint with the regional branch of
the National Labor Relations Commission. The burden of proving that
the termination was for a valid or authorized cause shall rest on the
employer.

Accordingly, the implementing rule of the aforesaid provision states:

SEC. 2. Standards of due process; requirements of notice.In all
cases of termination of employment, the following standards of due
process shall be substantially observed:

I. For termination of employment based on just causes as defined
in Article 282 of the Code:

(a) A written notice served on the employee
specifying the ground or grounds for termination, and
giving said employee reasonable opportunity within which
to explain his side.

(b) A hearing or conference during which the employee
concerned, with the assistance of counsel if he so desires is
given opportunity to respond to the charge, present his
evidence, or rebut the evidence presented against him.

(c) A written notice of termination served on the
employee, indicating that upon due consideration of all the
circumstances, grounds have been established to justify his
termination.
[13]


In case of termination, the foregoing notices shall be served on the
employees last known address.
[14]


To clarify, the following should be considered in terminating the services of
employees:

(1) The first written notice to be served on the employees should contain
the specific causes or grounds for termination against them, and a directive that the
employees are given the opportunity to submit their written explanation within a
reasonable period. Reasonable opportunity under the Omnibus Rules means
every kind of assistance that management must accord to the employees to enable
them to prepare adequately for their defense.
[15]
This should be construed as a
period of at least five (5) calendar days from receipt of the notice to give the
employees an opportunity to study the accusation against them, consult a union
official or lawyer, gather data and evidence, and decide on the defenses they will
raise against the complaint. Moreover, in order to enable the employees to
intelligently prepare their explanation and defenses, the notice should contain a
detailed narration of the facts and circumstances that will serve as basis for the
charge against the employees. A general description of the charge will not
suffice. Lastly, the notice should specifically mention which company rules, if
any, are violated and/or which among the grounds under Art. 282 is being charged
against the employees.

(2) After serving the first notice, the employers should schedule and
conduct a hearing or conference wherein the employees will be given the
opportunity to: (1) explain and clarify their defenses to the charge against them; (2)
present evidence in support of their defenses; and (3) rebut the evidence presented
against them by the management. During the hearing or conference, the employees
are given the chance to defend themselves personally, with the assistance of a
representative or counsel of their choice. Moreover, this conference or hearing
could be used by the parties as an opportunity to come to an amicable settlement.

(3) After determining that termination of employment is justified, the
employers shall serve the employees a written notice of termination indicating
that: (1) all circumstances involving the charge against the employees have been
considered; and (2) grounds have been established to justify the severance of their
employment.

In the instant case, KKTI admits that it had failed to provide respondent with
a charge sheet.
[16]
However, it maintains that it had substantially complied with
the rules, claiming that respondent would not have issued a written explanation
had he not been informed of the charges against him.
[17]


We are not convinced.

First, respondent was not issued a written notice charging him of
committing an infraction. The law is clear on the matter. A verbal appraisal of the
charges against an employee does not comply with the first notice
requirement. In Pepsi Cola Bottling Co. v. NLRC,
[18]
the Court held that
consultations or conferences are not a substitute for the actual observance of notice
and hearing. Also, in Loadstar Shipping Co., Inc. v. Mesano,
[19]
the Court,
sanctioning the employer for disregarding the due process requirements, held that
the employees written explanation did not excuse the fact that there was a
complete absence of the first notice.

Second, even assuming that petitioner KKTI was able to furnish respondent
an Irregularity Report notifying him of his offense, such would not comply with
the requirements of the law. We observe from the irregularity reports against
respondent for his other offenses that such contained merely a general description
of the charges against him. The reports did not even state a company rule or policy
that the employee had allegedly violated. Likewise, there is no mention of any of
the grounds for termination of employment under Art. 282 of the Labor Code.
Thus, KKTIs standard charge sheet is not sufficient notice to the employee.

Third, no hearing was conducted. Regardless of respondents written
explanation, a hearing was still necessary in order for him to clarify and present
evidence in support of his defense. Moreover, respondent made the letter merely
to explain the circumstances relating to the irregularity in his October 28,
2001 Conductors Trip Report. He was unaware that a dismissal proceeding was
already being effected. Thus, he was surprised to receive the November 26,
2001 termination letter indicating as grounds, not only hisOctober 28,
2001 infraction, but also his previous infractions.

Sanction for Non-compliance with Due Process Requirements

As stated earlier, after a finding that petitioners failed to comply with the
due process requirements, the CA awarded full backwages in favor of respondent
in accordance with the doctrine in Serrano v. NLRC.
[20]
However, the doctrine
in Serrano had already been abandoned in Agabon v. NLRC by ruling that if the
dismissal is done without due process, the employer should indemnify the
employee with nominal damages.
[21]


Thus, for non-compliance with the due process requirements in the
termination of respondents employment, petitioner KKTI is sanctioned to pay
respondent the amount of thirty thousand pesos (PhP 30,000) as damages.

Thirteenth (13th)-Month Pay

Section 3 of the Rules Implementing Presidential Decree No.
851
[22]
provides the exceptions in the coverage of the payment of the 13th-month
benefit. The provision states:

SEC. 3. Employers covered.The Decree shall apply to all
employers except to:

x x x x

e) Employers of those who are paid on purely commission,
boundary, or task basis, and those who are paid a fixed amount for
performing a specific work, irrespective of the time consumed in the
performance thereof, except where the workers are paid on piece-rate
basis in which case the employer shall be covered by this issuance
insofar as such workers are concerned.

Petitioner KKTI maintains that respondent was paid on purely commission
basis; thus, the latter is not entitled to receive the 13th-month pay
benefit. However, applying the ruling in Philippine Agricultural Commercial and
Industrial Workers Union v. NLRC,
[23]
the CA held that respondent is entitled to
the said benefit.
It was erroneous for the CA to apply the case of Philippine Agricultural
Commercial and Industrial Workers Union. Notably in the said case, it was
established that the drivers and conductors praying for 13th- month pay were not
paid purely on commission. Instead, they were receiving a commission in
addition to a fixed or guaranteed wage or salary. Thus, the Court held that bus
drivers and conductors who are paid a fixed or guaranteed minimum wage in case
their commission be less than the statutory minimum, and commissions only in
case where they are over and above the statutory minimum, are entitled to a 13th-
month pay equivalent to one-twelfth of their total earnings during the calendar
year.

On the other hand, in his Complaint,
[24]
respondent admitted that he was paid
on commission only. Moreover, this fact is supported by his pay slips
[25]
which
indicated the varying amount of commissions he was receiving each trip. Thus, he
was excluded from receiving the 13th-month pay benefit.

WHEREFORE, the petition is PARTLY GRANTED and the September
16, 2004 Decision of the CA is MODIFIED by deleting the award of backwages
and 13th-month pay. Instead, petitioner KKTI is ordered to indemnify respondent
the amount of thirty thousand pesos (PhP 30,000) as nominal damages for failure
to comply with the due process requirements in terminating the employment of
respondent.

No costs.

SO ORDERED.
G.R. No. 94167 January 21, 1991
MABUHAY SHIPPING SERVICES, INC. AND SKIPPERS MARITIME CO., LTD., petitioners,
vs.
HON. NATIONAL LABOR RELATIONS COMMISSION (FIRST DIVISION) AND CECILIA
SENTINA,respondents.
Victorino Alba for petitioners.
Rodolfo B. Dizon for private respondent.

GANCAYCO, J .:p
The employer is exempted from liability for burial expenses for a seaman who commits suicide. How
about in a case of one who ran amuck or who in a state of intoxication provoked a fight as a result of
which he was killed? Is the employer similarly exempt from liability? This is the issue in this case.
Romulo Sentina was hired as a 4th Engineer by petitioner Mabuhay Shipping Services, Inc. (MSSI)
for and in behalf of co-petitioner, Skippers Maritime Co., Ltd. to work aboard the M/V Harmony I for a
period of one year. He reported for duty aboard said vessel on July 13, 1987.
On January 16, 1988 at about 3 p.m., while the vessel was docked alongside Drapetona Pier,
Piraeus, Greece, Sentina arrived aboard the ship from shore leave visibly drunk. He went to the
messhall and took a fire axe and challenged those eating therein. He was pacified by his shipmates
who led him to his cabin. However, later he went out of his cabin and proceeded to the messhall. He
became violent. He smashed and threw a cup towards the head of an oiler Emmanuel Ero, who was
then eating. Ero touched his head and noticed blood. This infuriated Ero which led to a fight between
the two. After the shipmates broke the fight, Sentina was taken to the hospital where he passed
away on January 17, 1988.
1
Ero was arrested by the Greek authorities and was jailed in Piraeus.
On October 26, 1988, private respondents filed a complaint against petitioners with the Philippine
Overseas Employment Administration (POEA) for payment of death benefits, burial expenses,
unpaid salaries on board and overtime pay with damages docketed as POEA Case No. (M) 88-10-
896. After submission of the answer and position papers of the parties a decision was rendered by
the POEA on July 11, 1989, the dispositive part of which reads as follows:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered ordering
Mabuhay Shipping Services, Inc. and Skippers Maritime Co., Ltd. to pay complainant
Cecilia S. Sentina the sum of TWO HUNDRED THIRTY THOUSAND PESOS
(P230,000.00) representing the deceased's death benefit and burial compensation,
the sum of THREE HUNDRED FIFTY US DOLLARS (US$350.00) or its peso
equivalent at the time of payment representing unpaid shipboard pay and fixed
overtime pay plus ten percent (10%) of the total judgment award by way of and as
attorney's fees.
All other claims are ordered dismissed
SO ORDERED.
2

A motion for reconsideration and/or appeal was filed by petitioners which the respondent First
Division of the National Labor Relations Commission (NLRC) disposed of in a resolution dated
March 31, 1990 dismissing the appeal and affirming the appealed decision.
3

A motion for reconsideration thereof filed by petitioners was denied by said public respondent in a
resolution dated June 29, 1990.
Hence, the herein petition for certiorari wherein the following grounds are invoked:
The Hon. NLRC, gravely abused its discretion in holding that "The payment of Death
Compensation Benefit only requires that the seaman dies during the term of the
contract, and no other."
That the Hon. NLRC, gravely abused its discretion in holding that even if the subject
seaman's death resulted from the fight he himself created, such nonetheless does
not constitute a "deliberate or wilfull act on his own life."
That the Hon. NLRC, gravely abused its discretion in holding, that the death of the
late 4/Engr Romulo Sentina is compensable.
4

The petition is impressed with merit.
Part II, Section C, No. 6 of the POEA Standard Format for Filipino seamen employed in ocean going
vessels states that
No compensation shall be payable in respect of any injury, incapacity, disability or
death resulting from a deliberate or willful act on his own life by the seaman, provided
however that the employer can prove that such injury, incapacity, disability or death
is directly attributable to the seamen.
The same provision of the standard format also provides
In case of death of the seaman during the term of his contract, the employer shall
pay his beneficiaries the amount of
xxx xxx xxx
b. P210,000.00 for other officers including radio operators and master electrician.
(Memo Circular No. 5 effective March 1, 1986)
In interpreting the aforequoted provision in its decision, the POEA held that payment of death
compensation benefits only requires that the seaman should die during the term of the contract and
no other. It further held that the saving provision relied upon by petitioners refers only to suicide
where the seaman deliberately and intentionally took his own life.
5

Public respondent in affirming the said POEA decision made the following disquisition
It is not difficult for us to understand the intent of the aforequoted "Part II, Section C,
No. 6 of the POEA Standard Format" that to avoid death compensation, two
conditions must be met:
a) the subject death much have resulted "from a deliberate or willful act on his own
life by the seaman;" and
b) such death "directly attributable to the seaman" must have been proven by the
"employer."
Thus, even if arguendo, the appellants may successfully prove that the subject
seaman's death resulted from the fight he himself created, such, nonetheless does
not constitute a "deliberate or willful act on his own life." On this ground alone, the
instant appeal would already fail.
6

The mere death of the seaman during the term of his employment does not automatically give rise to
compensation. The circumstances which led to the death as well as the provisions of the contract,
and the right and obligation of the employer and seaman must be taken into consideration, in
consonance with the due process and equal protection clauses of the Constitution. There are
limitations to the liability to pay death benefits.
When the death of the seaman resulted from a deliberate or willful act on his own life, and it is
directly attributable to the seaman, such death is not compensable. No doubt a case of suicide is
covered by this provision.
By the same token, when as in this case the seaman, in a state of intoxication, ran amuck, or
committed an unlawful aggression against another, inflicting injury on the latter, so that in his own
defense the latter fought back and in the process killed the seaman, the circumstances of the death
of the seaman could be categorized as a deliberate and willful act on his own life directly attributable
to him. First he challenged everyone to a fight with an axe. Thereafter, he returned to the messhall
picked up and broke a cup and hurled it at an oiler Ero who suffered injury. Thus provoked, the oiler
fought back The death of seaman Sentina is attributable to his unlawful aggression and thus is not
compensable.
Even under Article 172 of the Labor Code, the compensation for workers covered by the Employees
Compensation and State Insurance Fund are subject to the limitations on liability.
Art. 172. Limitations of liability. The State Insurance Fund shall be liable for the
compensation to the employee or his dependents except when the disability or death
was occasioned by the employee's intoxication, willful intent to injure or kill himself or
another, notorious negligence, or otherwise provided under this Title.
Private respondent pointed out that petitioner MSSI endorsed the claim for compensation of private
respondents. Said petitioner admits this fact but asserts that it was not favorably acted upon by its
principal, petitioner Skippers Maritime Co., Inc. because of the circumstances that led to the death of
Sentina.
WHEREFORE, the petition is GRANTED. The questioned decision of the POEA dated July 11, 1989
and the resolutions of public respondent dated May 31, 1990 and June 29, 1990 affirming the same
are hereby set aside and another judgment is hereby rendered dismissing the complaint.
SO ORDERED.
Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.