ATCI Overseas Corp vs Echin,
G.R 178551
Facts:
Josefina Echin
(respondent) was hired by petitioner ATCI Overseas Corporation in behalf of its
principal-co-petitioner, the Ministry of Public Health of Kuwait (the
Ministry), for the position of medical technologist under a two-year contract, with
a monthly salary of US$1,200.00.
Under
the MOA, all newly-hired employees undergo a probationary period of
one (1) year and are covered by Kuwait’s Civil Service Board Employment
Contract No. 2. Respondent was deployed
on February 17, 2000 but was terminated from employment on February 11, 2001,
she not having allegedly passed the probationary period.
Respondent
filed with the NLRC a complaint for illegal dismissal against petitioner ATCI
as the local recruitment agency, represented by petitioner, Ikdal, and the
Ministry, as the foreign principal. Labor
Arbiter, finding that petitioners neither showed that there was just cause to
warrant respondent’s dismissal nor that she failed to qualify as a regular
employee, held that respondent was illegally dismissed. NLRC affirmed the Labor Arbiter’s decision. CA affirmed the NLRC Resolution.
Issue:
Whether or not the
contract in the case shall be governed by the Civil Service Law and Regulations
of Kuwait.
Held:
NO. Petitioner
ATCI, as a private recruitment agency, cannot evade responsibility for the
money claims of Overseas Filipino workers (OFWs) which it deploys abroad by the
mere expediency of claiming that its foreign principal is a government agency
clothed with immunity from suit, or that such foreign principal’s liability
must first be established before it, as agent, can be held jointly and
solidarily liable.
In
providing for the joint and solidary liability of private recruitment agencies
with their foreign principals, Republic Act No. 8042 precisely affords the OFWs
with a recourse and assures them of immediate and sufficient payment of what is
due them. Skippers United Pacific v. Maguad explains: “. . . [T]he
obligations covenanted in the recruitment agreement entered into by and between
the local agent and its foreign principal are not coterminous with the term of
such agreement so that if either or both of the parties decide to end the
agreement, the responsibilities of such parties towards the contracted
employees under the agreement do not at all end, but the same extends up to and
until the expiration of the employment contracts of the employees recruited and
employed pursuant to the said recruitment agreement. Otherwise, this will
render nugatory the very purpose for which the law governing the employment of
workers for foreign jobs abroad was enacted.”
è Indeed, a contract
freely entered into is considered the law between the parties who can establish
stipulations, clauses, terms and conditions as they may deem convenient,
including the laws which they wish to govern their respective obligations, as
long as they are not contrary to law, morals, good customs, public order or
public policy.
It
is hornbook principle, however, that the party invoking the application of a
foreign law has the burden of proving the law, under the doctrine of processual presumption
which, in this case, petitioners failed to discharge. The Court’s ruling in
EDI-Staffbuilders Int’l., v. NLRC illuminates: “In the present case, the
employment contract signed by Gran specifically states that Saudi Labor Laws
will govern matters not provided for in the contract (e.g. specific causes for
termination, termination procedures, etc.). Being the law intended by the
parties (lex loci intentiones) to apply to the contract, Saudi Labor
Laws should govern all matters relating to the termination of the employment of
Gran.”
In
international law, the party who wants to have a foreign law applied to a
dispute or case has the burden of proving the foreign law. The foreign law
is treated as a question of fact to be properly pleaded and proved as the judge
or labor arbiter cannot take judicial notice of a foreign law. He is presumed
to know only domestic or forum law.
Unfortunately
for petitioner, it did not prove the pertinent Saudi laws on the matter; thus,
the International Law doctrine of presumed-identity approach or processual
presumption comes into play. Where a foreign law is not pleaded or, even if
pleaded, is not proved, the presumption is that foreign law is the same as
ours. Thus, we apply Philippine labor laws in determining the issues presented
before us.
The
Philippines does not take judicial notice of foreign laws, hence, they must not
only be alleged; they must be proven. To prove a foreign law, the party
invoking it must present a copy thereof and comply with Sections 24 and 25 of
Rule 132 of the Revised Rules of Court which reads:
SEC.
24. Proof of official record. — The record of public documents referred
to in paragraph (a) of Section 19, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested by the
officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate
that such officer has the custody. If the office in which the record is kept is
in a foreign country, the certificate may be made by a secretary of the embassy
or legation, consul general, consul, vice consul, or consular agent or by any
officer in the foreign service of the Philippines stationed in the foreign
country in which the record is kept, and authenticated by the seal of his
office.
SEC.
25. What attestation of copy must state. — Whenever a copy of a document or
record is attested for the purpose of the evidence, the attestation must state,
in substance, that the copy is a correct copy of the original, or a specific
part thereof, as the case may be. The attestation must be under the official
seal of the attesting officer, if there be any, or if he be the clerk of a court
having a seal, under the seal of such court.
à Ã
To
prove the Kuwaiti law, petitioners submitted the following: MOA between
respondent and the Ministry, as represented by ATCI, which provides that the
employee is subject to a probationary period of one (1) year and that the host
country’s Civil Service Laws and Regulations apply; a translated copy (Arabic
to English) of the termination letter to respondent stating that she did not
pass the probation terms, without specifying the grounds therefor, and a
translated copy of the certificate of termination, both of which documents were
certified by Mr. Mustapha Alawi, Head of the Department of Foreign
Affairs-Office of Consular Affairs Inslamic Certification and Translation Unit;
and respondent’s letter of reconsideration to the Ministry, wherein she noted
that in her first eight (8) months of employment, she was given a rating of
"Excellent" albeit it changed due to changes in her shift of work
schedule.
These
documents, whether taken singly or as a whole, do not sufficiently prove that
respondent was validly terminated as a probationary employee under Kuwaiti
civil service laws. Instead of submitting a copy of the pertinent Kuwaiti
labor laws duly authenticated and translated by Embassy officials thereat, as
required under the Rules, what petitioners submitted were mere certifications
attesting only to the correctness of the translations of the MOA and the
termination letter which does not prove at all that Kuwaiti civil service laws
differ from Philippine laws and that under such Kuwaiti laws, respondent was
validly terminated. Thus the subject certifications read:
This
is to certify that the herein attached translation/s from Arabic to
English/Tagalog and or vice versa was/were presented to this Office for review
and certification and the same was/were found to be in order. This Office,
however, assumes no responsibility as to the contents of the document/s.