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Amicus Curiae

Relief for illegally dismissed OFWs

Jose Mari H. Roco

March 28, 2016

Nowadays, finding a job is hard for an ordinary Filipino. It is even harder to find one that is enough to support oneself and one’s family. As a result, a considerable number of the Filipino population flock to other countries to find greener pastures. In pursuit of this, many Overseas Filipino Workers (OFWs) risk life and limb doing manual labor may it be in land or at sea. They endure so many hardships and sacrifices just to be able to provide for the families they left behind and, in the process, strive to secure the future of their children.

 

One of the many perils OFWs are exposed to is illegal dismissal. This happens when their foreign employers prematurely put an end to their employment without any sufficient and legal ground. To deter such unfair practice, our lawmakers enacted the Migrant Workers Act of 1995. It provided OFWs a relief. Section 10 of the same Act provides that in cases when overseas employment is pre-terminated without just, valid, or authorized cause, the OFW is entitled, among others, to “his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less.”

At first glance, nothing seems to be problematic about the relief provided under the Act.

However, in the 2009 case of Serrano v. Gallant Maritime Services, Inc., the Supreme Court (SC) declared as unconstitutional the part which states “or for three (3) months for every year of the unexpired term, whichever is less.” As a result, when an OFW is illegally terminated, the latter is entitled to his or her salary for the unexpired portion of his or her employment contract. No more, no less.

In Serrano, the SC ruled that the quoted provision unfairly discriminated against OFWs in direct violation of the equal protection clause under the 1987 Philippine Constitution.

First, it created an unfair classification between OFWs with employment contracts of less than one year in relation to those with one year or more. In other words, in case of illegal dismissal, OFWs with employment contracts of less than one year will be entitled to the entire unexpired portion of their contract while those with one year or more will only be entitled to a monetary award amounting to three months for every year of the of the unexpired portion of their contracts. Second, it also created an unfair classification among OFWs with employment contracts of more than one year.

To illustrate, among OFWs under contracts of more than one year, those illegally dismissed with less than one year left in their contracts will be entitled to the entire unexpired portion of said contract while those with more than one year remaining shall only be entitled to an award equivalent to their salary for three months for every year of the unexpired portion of their contract.

Third and finally, it created an undue benefit in favor of local workers employed under a fixed duration to the detriment of OFWs. Simply stated, in case of illegal dismissal, local workers are entitled to the unexpired portion of their employment contracts while OFWs will only be entitled to three months for every year of the unexpired portion of their contracts.

Surprisingly, however, our legislature enacted Republic Act No. 10022 (RA 10022) -- a law amending the Migrant Workers Act of 1995. In this amendatory law, it re-enacted the very same provision previously declared discriminatory and unconstitutional in Serrano.

In fact, in similar cases decided by the SC after the enactment of RA 10022 such as the 2012 cases of Skippers United Pacific, Inc. v. Doza and Pert/CPM Manpower Exponent Co., Inc. v. Vinuya, the SC refused to reinstate its former ruling in Serrano and applied the law as worded. Consequently, illegally dismissed OFWs were, once again, placed in a precarious position and awarded monetary benefits amounting to only three months’ salary for every year of the unexpired term of their employment contracts rather than the whole unexpired portion thereof.

Fortunately for the OFWs, in the 2014 case of Sameer Overseas Placement Agency, Inc. v. Cabiles, all the Justices of the SC unanimously reverted to the Serrano ruling.

In an erudite and eloquent fashion, speaking for the SC, Justice Leonen expressed in no uncertain terms that “[n]o branch or office of the government may exercise its powers in any manner inconsistent with the Constitution, regardless of the exercise of any law that supports such exercise. The Constitution cannot be trumped by any other law. All laws must be read in light of the Constitution. Any law that is inconsistent with it is a nullity.” Further, he concluded that “when a law or a provision of law is null and void because it is inconsistent with the Constitution, the nullity cannot be cured by reincorporation or re-enactment of the same or a similar law or provision. A law or provision of law that was already declared unconstitutional remains as such unless circumstances have so changed as to warrant a reverse conclusion.” For that reason, even though RA 10022 re-enacted into law what has previously been struck down as unconstitutional, this will not serve to cure what has otherwise been considered invalid and illegal.

Therefore, as it stands, OFWs found to have been illegally dismissed are once again entitled to the unexpired portion of their employment contracts. This is in full accord with our country’s policy to afford full protection to labor, whether local or overseas.