Josefina Echin was hired by petitioner ATCI Overseas Corporation in behalf of its principal-co-petitioner, the Ministry of Public Health of Kuwait, for the position of medical technologist under a two-year contract, denominated as a MOA.
Under the MOA, all newly-hired employees undergo a probationary period of one year.
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 ATCI as the local recruitment agency, represented by Amalia Ikdal, and the Ministry, as the foreign principal.
The Labor Arbiter held that respondent was illegally dismissed and accordingly ordered petitioners to pay her US$3,600.00, representing her salary for the three months unexpired portion of her contract.
The NLRC affirmed the Labor Arbiter’s decision.
Petitioners appealed to the CA, contending that their principal, the Ministry, being a foreign government agency, is immune from suit and, as such, the immunity extended to them; and that respondent was validly dismissed for her failure to meet the performance rating within the one-year period as required under Kuwaits Civil Service Laws.
The CA affirmed the NLRC Resolution
Whether or not petitioner is liable for the illegal dismissal of respondent.
Petitioner ATCI, as a private recruitment agency, cannot evade responsibility for the money claims of 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 principals liability must first be established before it, as agent, can be held jointly and solidarily liable.
The imposition of joint and solidary liability is in line with the policy of the state to protect and alleviate the plight of the working class. Verily, to allow petitioners to simply invoke the immunity from suit of its foreign principal or to wait for the judicial determination of the foreign principals liability before petitioner can be held liable renders the law on joint and solidary liability inutile.
As to petitioners contentions that Philippine labor laws on probationary employment are not applicable since it was expressly provided in respondents employment contract, which she voluntarily entered into, that the terms of her engagement shall be governed by prevailing Kuwaiti Civil Service Laws and Regulations as in fact POEA Rules accord respect to such rules, customs and practices of the host country, the same was not substantiated.
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 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 the Rules of Court.
These documents submitted by petitioners do not sufficiently prove that respondent was validly terminated as a probationary employee under Kuwaiti civil service laws.
Respecting Ikdal’s joint and solidary liability as a corporate officer, the same is in order too following the express provision of R.A. 8042:
The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provision shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to be filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages.
The petition is DENIED