Case Digest: Yap v. Thenamaris Ships & Intermare Maritime

G.R. No. 179532: May 30, 2011




Petitioner was employed as an electrician of the vessel, M/T SEASCOUT by Intermare Maritime Agencies, Inc. in behalf of its principal, Vulture Shipping Limited.The contract was for 12 months.On 23 August 2001,Yapboarded M/T SEASCOUT and commenced his job as electrician. However, on or about 08 November 2001, the vessel was sold.

Yap received his seniority bonus, vacation bonus, extra bonus along with the scrapping bonus.However, he insisted that he was entitled to the payment of the unexpired portion of his contract since he was illegally dismissed from employment.He alleged that he opted for immediate transfer but none was made.

Respondents contended that Yap was not illegally dismissed.They further alleged that Yaps contract was validly terminated due to the sale of the vessel and no arrangement was made for Yaps transfer to Thenamaris other vessels.

Thus, Yap brought the issue before the Labor Arbiter (LA) which ruled that petitioner was illegally dismissed; that respondents acted in bad faith when they assured petitioner of re-embarkation but he was not able to board; and that petitioner was entitled to his salaries for the unexpired portion of his contract for a period of nine months (US$12,870.00), P100,000 for moral damages, and P50,000 for exemplary damages with 10% of the same for Attys fees.

Respondents sought recourse from the NLRC which modified the award of salaries from that corresponding to nine months to only three months (US$4,290.00) pursuant to Section 10 R.A. No. 8042.

Respondents and petitioner both filed a Motion for Partial Reconsideration.

NLRC affirmed the finding of Illegal Dismissal and Bad Faith on the part of respondent. However, the NLRC reversed its earlier Decision, holding that "there can be no choice to grant only 3 months salary for every year of the unexpired term because there is no full year of unexpired term which this can be applied."

Respondents filed an MR, which the NLRC denied. Undaunted, respondents filed a petition forcertiorariunder Rule 65 before the CA.

The CA affirmed the findings and ruling of the LA and the NLRC. However, the CA ruled that the NLRC erred in sustaining the LAs interpretation of Section 10 of R.A. No. 8042. The CA relied on the clause "or for three months for every year of the unexpired term, whichever is less" provided in the 5th paragraph of Section 10 of R.A. No. 8042.

Both parties filed their respective MRs which the CA denied. Thus, this petition.


[1] Whether Section 10 of R.A. 8042, to the extent that it affords an illegally dismissed migrant worker the lesser benefit of "salaries for [the] unexpired portion of his employment contract for three (3) months for every year of the unexpired term,whichever is less" is constitutional;

[2] Assuming that it is, whether the CA gravely erred in granting petitioner only three (3) months backwages when his unexpired term of 9 months is far short of the "every year of the unexpired term" threshold.

HELD: The petition is impressed with merit.

We have previously declared that the clause "or for three months for every year of the unexpired term, whichever is less" is unconstitutional for being violative of the rights of (OFWs) to equal protection. Moreover, the subject clause does not state any definitive governmental purpose, hence, it also violates petitioner's right to substantive due process.

Generally, an unconstitutional act is not a law. An exception to this is the doctrine of operative fact applied when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. This case should not be included in the exception. It was not the fault of petitioner that he lost his job due to an act of illegal dismissal committed by respondents.

Also, we cannot subscribe to respondents postulation that the tanker allowance of US$130.00 should not be included in the computation of the lump-sum salary. First, fair play, justice, and due process dictate that this Court cannot now, for the first time on appeal, pass upon this question. Second, the allowance was encapsulated in the basic salary clause.