ANDREW JAMES MCBURNIE, petitioner, vs. EULALIO GANZON,
AGI-MANAGERS, INC. and E. GANZON, INC., respondents
G.R. Nos. 178034 & 178117 | October
17, 2013
TOPIC: Alien employment
FACTS:
McBurnie, an Australian nation, signed a
5-year employment agreement with the company EGI as Executive Vice-President
who shall oversee the management of the company’s hotels and resorts within the
Philippines. He performed work for the company until sometime in November 1999,
when he figured in an accident that compelled him to go back to Australia while
recuperating from his injuries. While in Australia, he was informed by
respondent Ganzon that his services were no longer needed because their
intended project would no longer push through.
The respondents opposed the complaint,
contending that their agreement with McBurnie was to jointly invest in and
establish a company for the management of hotels. They did not intend to create
an employer-employee relationship, and the execution of the employment contract
that was being invoked by McBurnie was solely for the purpose of allowing
McBurnie to obtain an alien work permit in the Philippines. At the time
McBurnie left for Australia for his medical treatment, he had not yet obtained
a work permit.
ISSUE:
Whether or not petitioner, who is an alien,
is an employee of respondent company and was therefore illegally dismissed
RULING:
Considering that McBurnie, an Australian,
alleged illegal dismissal and sought to claim under our labor laws, it was
necessary for him to establish, first and foremost, that he was qualified and
duly authorized to obtain employment within our jurisdiction. A requirement for
foreigners who intend to work within the country is an employment permit, as
provided under Article 40, Title II of the Labor Code.
In
WPP Marketing Communications, Inc. v. Galera, the Court held that a foreign
national’s failure to seek an employment permit prior to employment poses a
serious problem in seeking relief from the Court for one cannot come to court with
unclean hands. To grant the alien’s prayer is to sanction the violation of the
Philippine labor laws requiring aliens to secure work permits before their
employment.
Clearly, this circumstance on the failure
of McBurnie to obtain an employment permit, by itself, necessitates the
dismissal of his labor complaint.
Furthermore, McBurnie failed to present
other competent evidence to prove his claim of an employer-employee
relationship. Given the parties’ conflicting claims on their true intention in
executing the agreement, it was necessary to resort to the established criteria
for the determination of an employer-employee relationship, namely: (1) the
selection and engagement of the employee; (2) the payment of wages; (3) the
power of dismissal; and (4) the power to control the employee’s conduct. The
rule of thumb remains: the onus probandi falls on the claimant to establish or
substantiate the claim by the requisite quantum of evidence. Whoever claims
entitlement to the benefits provided by law should establish his or her right
thereto.
McBurnie even failed to show through any
document such as payslips or vouchers that his salaries during the time that he
allegedly worked for the respondents were paid by the company. In the absence
of an employer-employee relationship between McBurnie and the respondents,
McBurnie could not successfully claim that he was dismissed, much less
illegally dismissed, by the latter. Even granting that there was such an
employer-employee relationship, the records are barren of any document showing
that its termination was by the respondents’ dismissal of McBurnie.
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