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GUIDELINES GOVERNING SEAFARERS’ CLAIMS FOR PERMANENT AND TOTAL DISABILITY BENEFITS

In the case of Jebsens’ Maritime Inc., et al. vs. Florvin G. Rapiz (G.R. No. 218871, 11 January 2017), the Supreme Court reiterated the guidelines governing seafarers’ claims for permanent and total disability benefits:

 

  1. The company-designated physician must issue a final medical assessment on the seafarer’s disability grading within a period of 120 days from the time the seafarer reported to him;
  2. If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer’s disability becomes permanent and total;
  3. If the company designated physician fails to give his assessment within the period of 120 days with a sufficient justification (e.g. seafarer required further medical treatment or seafarer was uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician has sufficient justification to extend the period; and
  4. If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer’s disability becomes permanent and total, regardless of any justification.

 

The High Court, in the case of Reynaldo Y. Sunit vs. OSM Maritime Services, et al. (G.R. No. 223035, 27 February 2017), added the following guidelines:

 

  1. If the seafarer disagrees with company-designated physician’s final medical assessment on the seafarer’s disability grading within a period of 120 days or 240 days extended period from the time the seafarer reported to him, the seafarer has the right to engage the services of a doctor of his choice. If the second doctor appointed by the seafarer disagrees with the findings of the company-designated physician, and the company likewise disagrees with the findings of the seafarer’s hired doctor, then a third doctor may be jointly appointed by the employer and the seafarer, whose decision shall be final and binding on both of them;
  2. The third doctor, appointed jointly by the company and the seafarer, is not required to give his medical assessment within the 120/240 day period for assessing the degree of disability of the seafarer. However, similar to what is required of a company-designated physician, the third-party physician must likewise arrive at a “definite and conclusive assessment of the seafarer’s disability or fitness to return to work before his or her opinion can be valid and binding between the parties.”; and
  3. Despite the binding effect of the third doctor’s assessment, a dissatisfied party may institute a complaint with the Labor Arbiter to contest the same on the ground of evident partiality, corruption of the third doctor, fraud, other undue means, lack of basis to support the assessment, or being contrary to law or settled jurisprudence.

 

The Supreme Court, in the same case, likewise held that, “A final and definite disability assessment is necessary in order to truly reflect the true extent of the sickness or injuries of the seafarer and his or her capacity to resume work as such.  Otherwise, the corresponding disability benefits awarded might not be commensurate with the prolonged effects of the injuries suffered.”

 

The High Court finally held, in the said Sunit case, that:

 

“In determining whether a disability is total or partial, what is crucial is whether the employee who suffered from disability could still perform his work notwithstanding the disability he met.  A permanent partial disability presupposes a seafarer’s fitness to resume sea duties before the end of the 120/240-day medical treatment period despite the injuries sustained, and works on the premise that such partial injuries did not disable a seafarer to earn wages in the same kind of work or similar nature for which he was trained.(Belchem Philippines Inc. vs. Zafra Jr., G.R. No. 204845, 15 June 2015, citing Fil-Star Maritime Corp. vs. Rosete, G.R. No. 192686, 23 November 2011)”

 

“ . . .  In disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairments of one’s earning capacity.(Eyana vs. Tansmarine Carriers, Inc., et al., G.R. No. 193468, 28 January 2015)”

 

REINSTATEMENT WITHOUT BACKWAGES

 

We have often heard of decisions of the High Court ordering the reinstatement of dismissed employees and the payment of their backwages from the time of their dismissal up to actual reinstatement.  The basis for such rulings is usually Article 279 of the Labor Code of the Philippines, as amended.

 

The Supreme Court, however, had elucidated on the statutory intent on the matter and nature of the twin remedies of reinstatement and payment of backwages in the case of De Guzman vs. National Labor Relations Commission, et al. (371 Phil 192), viz:

 

“The normal consequences of a finding that an employee has been illegally dismissed are, firstly, that the employee becomes entitled to reinstatement to his former position without loss of seniority rights and, secondly, the payment of back wages corresponding to the period from his illegal dismissal up to actual reinstatement. The rationale therefor is clearly obvious. Reinstatement restores the employee to the position from which he was removed, i.e., to his status quo ante dismissal, while the grant of backwages allows the same employee to recover from the employer that which he lost by way of wages because of his dismissal. These twin remedies of reinstatement and payment of back wages make whole the dismissed employee, who can then look forward to continued employment. These two remedies give meaning and substance to the constitutional right of labor to security of tenure.

However, the two remedies are distinct and separate. Though the grant of reinstatement commonly carries with it an award of back wages, the inappropriateness or non-availability of one does not carry with it the inappropriateness or non-availability of the other. Reinstatement is a restoration to a state from which one has been removed or separated. On the other hand, the payment of backwages is a form of relief that restores the income that was lost by reason of the unlawful dismissal. The award of one is not a condition precedent to an award of another. Backwages may be ordered without ordering reinstatement; conversely, reinstatement may be ordered without payment of back wages.

Thus, in a number of cases, the Court, despite its order of reinstatement or award of separation pay in lieu of reinstatement deemed it appropriate not to award back wages as penalty for the misconduct or infractions committed by the employee.”(371 Phil 192, 273-275).

 

In the recent case of Holcim Philippines Inc. vs. Renante J. Obra (G.R. No. 220998, 08 August 2016), the Supreme Court ruled that a dismissed employee may be reinstated without backwages if the following parameters are present: a) the fact that the dismissal of the employee would be too harsh a penalty; and b)  that the employer was in good faith in terminating the employee.  When the guilt of the employee is substantially established but his dismissal may be too drastic, he may be reinstated without backwages.  Denial of backwages would sufficiently penalize the employee for his infraction.  Furthermore, the good faith of the employer, when clear under the circumstances, may preclude or diminish recovery of backwages.  Only an employee discriminately dismissed is entitled to backpay. (Pepsi-Cola Products Phils. Inc. vs. Molon, 704 Phil. 120, 144-145).

DR. FALK PHARMA GMBH APPOINTS ESTREBILLO LAW OFFICE AS ITS AGENT AND ATTORNEY IN FACT IN THE PHILIPPINES

 

On 07 April 2016, Dr. Falk Pharma Gmbh, a pharmaceutical company based in Germany that specializes in the development and sales of medication for indications in hepatology and gastroenterology, appointed Estrebillo Law Office as its agent and attorney in fact in the Philippines, in relation to its petition for renewal of registration of the following trademarks: BUDENOFALK, DR. FALK (DEVICE), SALOFALK and URSOFALK.  The Intellectual Property Office of the Philippines was formally notified of the said appointment on 28 April 2016.

 

Dr. Falk Pharma GmbH is an independent family firm based in Freiburg im Breigau, Germany.  Its innovative drugs for bowel and liver diseases are sold in 61 countries, including the Philippines. The company’s pharmaceuticals are used for successfully treating inflammatory bowel disease, cholestatic liver disease, irritable bowel syndrome, and constipation, as well as for colon cleansing prior to colonoscopies.

 

In 1974, the company launched Chenofalk®, the first ever bile acid for the medicinal dissolution of gall-bladder stones. This was followed by the second bile acid preparation, Ursofalk®, which is still the leading medication for the treatment of cholestatic liver diseases today. In 1984, the company brought out Salofalk®, the world’s first mesalazine preparation for treating inflammatory bowel diseases. In 1998, it added to its wide range of products for the treatment of inflammatory bowel disease Budenofalk®, a corticosteroid product for topical action.

 

Dr. Falk Pharma Gmbh first appointed Estrebillo Law Office as its agent or representative and attorney in fact, in relation to its existing Letters Patent and Certificates of Registration, as well as new patent and trademark applications in the Philippines, in the year 2011.

 

Source: www.drfalkpharma.de

VOLUNTARY ARBITRATOR’S DECISION REINSTATING A DISMISSED EMPLOYEE IS IMMEDIATELY EXECUTORY

 

There is no statute expressly stating that an order of reinstatement of an illegally dismissed employee issued by a Voluntary Arbitrator is immediately executory pending appeal.  Article 223 of the Labor Code of the Philippines, mandating the immediate execution pending appeal of an order of reinstatement refers to an order of the Labor Arbiter. So what is the legal justification for the immediate execution of a Voluntary Arbitrator’s order of reinstatement pending appeal?

 

In the case of Rogelio Baronda vs. Hon. Court of Appeals and Hideco Sugar Milling Co., Inc. (G.R. No. 161006, 14 October 2015), the Supreme Court ruled that a Voluntary Arbitrator’s decision ordering the reinstatement of an illegally dismissed employee is immediately executory regardless of the timely filing of a motion for reconsideration or  appeal.  The rationale given by the High Court is that:

 

“The normal consequences of a finding that an employee was illegally dismissed are, firstly, that the employee becomes entitled to reinstatement to his former position without loss of seniority rights; and, secondly, the payment of wages corresponding to the period from his illegal dismissal up to the time of actual reinstatement.  These two consequences give meaning to and substance to the constitutional right of labor to security of tenure.  Reinstatement pending appeal thus affirms the constitutional mandate to protect labor and to enhance social justice . . .”

 

Moreover, the Highest Court of the land, in holding that the reinstatement order of the Voluntary Arbitrator has the same authority, force and effect as that issued by a Labor Arbiter,  declared that there is:

 

“. . . no reason to obstruct the reinstatement decreed by the Voluntary Arbitrator, or to treat it any less than the reinstatement that is ordered by the Labor Arbiter.  Voluntary arbitration really takes precedence over other dispute settlement devices.  Such primacy of voluntary arbitration is mandated by no less than the Philippine Constitution, and is ingrained as a policy objective of our labor relations law.  The reinstatement order of the Voluntary Arbitrator should have the same authority, force and effect as that of the reinstatement order by the Labor Arbiter not only to encourage parties to settle their disputes through this mode, but also, and more importantly , to enforce the constitutional mandate to protect labor, to provide security of tenure, and to enhance social justice.”

“CONDONATION DOCTRINE” ABANDONED BY THE SUPREME COURT

 

“Condonation doctrine” is a very popular defense used by elective officials in administrative cases filed against them before the Office of the Ombudsman.

 

The “condonation doctrine”, which was first adopted by the Supreme Court in the 1959 case of Arturo Pascual vs. Hon. Provincial Board of Nueva Ecija (106 Phil 466), states that. “(o)ffenses committed, or acts done, during previous term are generally held not to furnish cause for removal and this is especially true where the constitution provides that the penalty in proceedings for removal shall not extend beyond the removal from office, and disqualification from holding office for the term for which the officer was elected or appointed.”  “The underlying theory is that each term is separate from other terms.” The “reelection to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefore”. “When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any.  It is not for the court, by reason of such faults or misconduct to practically overrule the will of the people.”

 

The Supreme Court, in the case of Conchita Carpio-Morales, in her capacity as Ombudsman vs. Court of Appeals and Jejomar Erwin S. Binay, Jr. (G.R. No. 217126-27, 10 November 2015), abandoned the foregoing jurisprudential creation because it “simply finds no legal authority to sustain the condonation doctrine in this jurisdiction”.  It ruled that, “the concept of public office is a public trust and the corollary requirement of accountability to the people at all times, as mandated under the 1987 Constitution, is plainly inconsistent with the idea that an elective local official’s administrative liability for a misconduct committed during a prior term can be wiped off by the fact that he was elected to a second term of office, or even another elective post.  Election is not a mode of condoning an administrative offense, and there is simply no constitutional or statutory basis in our jurisdiction to support the notion that an official elected for a different term is fully absolved of any administrative liability arising from an offense done during a prior term.” As such, the Collegiate Body ruled that, “it cannot be said that the electorate’s will had been abdicated.” Finally, the Supreme Court held that no presumption exists in any statute or procedural rule that the electorate, when reelecting a local official, are assumed to have done so with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had any.

COURT HAS AUTHORITY TO ENJOIN POEA FROM IMMEDIATELY EXECUTING PENALTIES FOR SERIOUS OFFENSES AGAINST A RECRUITMENT AGENCY

 

The Philippine Overseas Employment Agency (POEA), by virtue of Section 3 (d) Executive Order No. 247 (E.O. No. 247) and Section 1, Rule I, Part VI of 2002 POEA Rules and Regulations, has original and exclusive jurisdiction to hear and decide all pre-employment cases which are administrative in character involving or arising out of: a) violations of recruitment regulations; or b) violations of conditions for issuance of license to recruit workers. Although the decision of the POEA in such cases are appealable to the Secretary of Labor and Employment, there is nothing in E.O. No. 247 and 2002 POEA Rules and Regulations that grants a recruitment agency injunctive relief from the immediate execution of penalties for serious offenses (e.g. cancellation of license or suspension of license for a maximum period of 12 months).

 

In the case of Republic of the Philippines, et al. vs. Principalia Management and Personnel Consultants, Inc. (G.R. No. 198426, 02 September 2015), it was held that E.O. No. 247 and the 2002 POEA Rules and Regulations cannot deprive the courts of the power to entertain injunction petitions to stay the execution of a POEA order imposing the penalties for serious offenses of a recruitment agency. The courts have the power to enjoin the POEA from immediately executing its Order imposing the penalties for serious offenses of a recruitment agency, upon proof of grave abuse of discretion, fraud, or error of law. Such petition, however, has nothing to do with the resolution of the appeal before the Secretary of Labor and Employment questioning the POEA Order.

NOTARY PUBLIC IS PROHIBITED FROM SIMULTANEOUSLY KEEPING SEVERAL ACTIVE NOTARIAL REGISTERS IN DIFFERENT OFFICES

The sign “NOTARY PUBLIC” can be seen in almost every street corner near the building of a local government agency, a government office, and even the courts.  There are times that the name of a particular lawyer appears to be the same “Notary Public” who notarizes documents in different “notarial offices” in different parts of the city. Amazingly, the omnipresent Notary Public has separate Notarial Register in each of his “notarial offices”.

 

In the case of “Joy A. Gimeno vs. Atty. Paul Centillas Zaide” (A.C. No. 10303, 22 April 2015), a lawyer/notary public was suspended from the practice of law, his notarial commission revoked, and disqualified from being commissioned as a notary public for a period of two (2) years, for keeping different notarial registers in several offices.  The Supreme Court, in penalizing the erring lawyer/notary public, ruled that:

 

“The Notarial Practice Rules strictly requires a notary public to maintain only one active notarial register and ensure that the entries in it are chronologically arranged.  The ‘one active notarial register’ rule is in place to deter a notary public from assigning several notarial registers to different offices manned by assistants who perform notarial services on his behalf.

Since a notarial commission is personal to each lawyer, the notary public shall also personally administer the notarial acts that the law authorizes him to execute.  This important duty is vested with public interest. Thus, no other person, other than the notary public, should perform it.

On the other hand, entries in a notarial register, need to be in chronological sequence in order to address and prevent the rampant practice of leaving blank spaces in the notarial register to allow the antedating of notarizations.”

 

The High Court also emphasized that a flagrant violation of the Notarial Practice Rules is not merely a simple and excusable negligence, but a clear violation of Canon 1 of the Code of Professional Responsibility.

CYBERLIBEL: Provisions of laws that you must know about

 

Cyberlibel

The Philippine Supreme Court, sitting En Banc, ruled in the case of Jose Jesus M. Disini, Jr. et al. vs. The Secretary of Justice, et al. (G.R. No. 203335, 18 February 2014) that, “cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes ‘similar means’ for committing libel.”

 

Article 353 of the Revised Penal Code of the Philippines defines Libel as a “public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”

 

Article 355 of the Revised Penal Code of the Philippines provides that Libel may be committed by means of “writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means.”

 

Section 4 (c) (4) of the Cybercrime Prevention Act of 2012 (Republic Act No. 10175), on the other hand, provides that Libel as defined under Article 355 of the Revised Penal Code constitutes a cybercrime punishable under the Act if “committed through a computer system or any other similar means which may be devised in the future”.

 

The High Tribunal declared in the Disini case that Section 5 of the Cybercrime Prevention Act of 2012, on “Aiding or Abetting in the Commission of Cybercrime” and “Attempt in the Commission of Cybercrime”, is unconstitutional in so far as “cyberlibel” (Section 4 [c] [4]) is concerned. It ruled that:

 

Libel in the cyberspace can of course stain a person’s image with just one click of the mouse. Scurrilous statements can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes hand in hand with cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a governmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect a person’s reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the area of protected freedoms.

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users will suppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all liberties. Penal laws should provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitrary and discriminatory enforcement. The terms ‘aiding or abetting’ constitute broad sweep that generates chilling effect on those who express themselves through cyberspace posts, comments, and other messages. Hence, Section 5 of the cybercrime law that punishes ‘aiding or abetting’ libel on the cyberspace is a nullity.

x x x

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any government threat of punishment regarding certain uses of the medium creates a chilling effect on the constitutionally-protected freedom of expression of the great masses that use it. In this case, the particularly complex web of interaction on social media websites would give law enforcers such latitude that they could arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizens are not given ‘fair notice’ or warning as to what is criminal conduct and what is lawful conduct. When a case is filed, how will the court ascertain whether or not one netizen’s comment aided and abetted a cybercrime while another comment did not? Of course, if the ‘Comment’ does not merely react to the original posting but creates an altogether new defamatory story against Armand like ‘He beats his wife and children,’ then that should be considered an original posting published on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory publications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it will destroy relationships and, under certain circumstances, will generate enmity and tension between social or economic groups, races, or religions, exacerbating existing tension in their relationships.

x x x

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out, formal crimes such as libel are not punishable unless consummated. In the absence of legislation tracing the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, . . ., cannot stand scrutiny.

GUIDELINES FOR THE PAYMENT OF WAGES AND OTHER BENEFITS ON JANUARY 31, 2014 (SPECIAL NON-WORKING HOLIDAY)

 

January 31, 2014 (Friday) was declared a Special Non-Working Holiday by President Benigno S. Aquino III under Proclamation No. 655.  The Department of Labor and Employment issued Labor Advisory No. 14 Series of 2013 providing for the following guidelines for the payment of wages and other benefits to an employee on January 31, 2014.

 

1. If the employee did not work on January 31, 2014, the “no work, no pay” principle shall apply, unless there is a a favorable company policy, practice or Collective Bargaining Agreement (CBA) granting payment on a special non-working holiday;

 

2. For work done on January 31, 2014, the employee shall be paid an additional 30% of his/her daily rate for the first eight (8) hours of work.  (Daily Rate x 130% + Cost of Living Allowance);

 

3. For work done in excess of eight hours (overtime work), the employee shall be paid an additional 30% of his/her hourly rate on said day. (Hourly Rate of the Basic Daily Wage x 130% x 130% x number of hours worked);

 

4. For work done on January 31, 2014 that also falls on an employee’s rest day, he/she shall be paid an additional 50% of his/her daily rate on the first eight (8) hours of work. (Daily Rate x 150% + Cost of Living Allowance);

 

5. For work done in excess of eight hours on January 31, 2014 that also falls on an employee’s rest day, the employee shall be paid an additional 30% of his/her hourly rate on said day. (Hourly Rate of the Basic Daily Wage x 150% x 130% x number of hours worked);

 

Source: www.dole.gov.ph

DR. FALK PHARMA GMBH APPOINTS ESTREBILLO LAW OFFICE AS ITS AGENT AND ATTORNEY IN FACT IN THE PHILIPPINES

 

 

Dr. Falk Pharma GmbH is an independent family firm based in Freiburg im Breigau, Germany.  Its innovative drugs for bowel and liver diseases are sold in 61 countries, including the Philippines. The company’s pharmaceuticals are used for successfully treating inflammatory bowel disease, cholestatic liver disease, irritable bowel syndrome, and constipation, as well as for colon cleansing prior to colonoscopies.

 

Dr. Falk Pharma GmbH specializes in the development and sales of medication for indications in hepatology and gastroenterology. It focuses on modern formulation and specially designed delivery systems to ensure targeted release of the active drug.

 

In 1974, the company launched Chenofalk®, the first ever bile acid for the medicinal dissolution of gall-bladder stones. This was followed by the second bile acid preparation, Ursofalk®, which is still the leading medication for the treatment of cholestatic liver diseases today. In 1984, the company brought out Salofalk®, the world’s first mesalazine preparation for treating inflammatory bowel diseases. In 1998, it added to its wide range of products for the treatment of inflammatory bowel disease Budenofalk®, a corticosteroid product for topical action.

 

Dr. Falk Pharma GmbH appointed Estrebillo Law Office as its agent or representative and attorney in fact in relation to its existing Letters Patent and Certificates of Registration, as well as new patent and trademark applications in the Philippines.  The Intellectual Property Office of the Philippines was formally notified of such appointment on 13 December 2011.

 

Source: www.drfalkpharma.de