Philippine Supreme Court Resolutions > Year 2010 > April 2010 Resolutions > [G.R. No. 190450 : April 07, 2010] MECTAP INTERNATIONAL SERVICES INCORPORATED, PETITIONER -VERSUS- RICHARD S. GUTIB, RESPONDENT.:

G.R. No. 190450 - MECTAP INTERNATIONAL SERVICES INCORPORATED, petitioner -versus- RICHARD S. GUTIB, respondent.

The petitioner Mectap International Services Incorporated (Mectap) moves to reconsider the Court's Resolution dated February 3, 2010, dismissing its petition for review on certiorari on procedural and substantive grounds.

In its February 25, 2010 motion for reconsideration, Mectap argues that the Court should reverse its ruling in Serrano v. Gallant Maritime Services, Inc.^[1] which held that Section 10 of the Migrant Workers' Act (RA 8042)^[2] is unconstitutional for violating the equal protection clause. According to Mectap, there are substantial distinctions between migrant Filipino workers and locally employed workers, which accounts for the difference in treatment on the money claims of illegally dismissed migrant workers - i.e., the need to put a cap of three months on the salaries an illegally dismissed migrant workers is entitled to for every year of the unexpired term in his employment contract.

Further, the Serrano ruling harms legitimate licensed overseas recruitment agencies and can be abused by malicious overseas workers who can resign after a few months of service and thereafter, file claims of illegal dismissal against their foreign employers.

Mectap additionally claims that Richard S. Gutib (Gutib) failed to present any evidence that proves his employer forced to work as a construction worker; he was forced to resign when he refused. Mectap thus urges this Court to reconsider its previous Resolution and to reverse and set aside the assailed CA decision.

We find merit in these contentions.

We cannot reopen the Serrano case as it is a final ruling. More importantly, we cannot take another look at the Serrano ruling through the prism of this case because the issue in the Serrano case - the constitutionality of Section 10 of RA 8042 - is not an issue that was properly raised before us in the present case.

While the ruling in Serrano was first applied to Mectap's case in the CA's November 24, 2009 Amended Decision, Mectap did not question the correctness of the Serrano ruling in its petition for review on certiorari filed with this Court. The only issue that Mectap raised as regards the Serrano ruling was whether it could be retroactively applied to its case, since the case was already pending at the time Serrano was promulgated. It is only now, as an apparent afterthought, that Mectap questions the propriety of the Court's ruling in Serrano. But a new issue cannot be raised for the first time in a motion for reconsideration. If an issue is raised only in the motion for reconsideration of the appellate court's decision, it is as if it was never raised in that court at all.^[3] Thus, this case cannot be the proper occasion to review, much less modify, our previous ruling in Serrano.

On the issue of Gutib's alleged lack of evidence to prove that he was illegally dismissed, we reiterate the rule that it is the employer who has the burden of proving that his employee's resignation is voluntary.^[4] It is not upon the employee to prove that he was illegally dismissed.

Considering the dubious circumstances surrounding the resignation letter, which is the only evidence that Mectap presented to prove that Gutib resigned, the Court finds no compelling reason to reverse its February 3, 2010 resolution.

WHEREFORE, finding no substantial argument to warrant the reconsideration sought, the motion is DENIED with FINALITY.

SO ORDERED.

WITNESS the Honorable Antonio T. Carpio. Chairperson, Honorable Axturo D. Brion, Mariano C. Del Castillo. Jose P. Perez and Jose C. Mendoza (designated additional member per S.O. No. 832 dated 30 March 2010 in lieu of Abad, J., on official business), Members, Second Division, this 7^th day of April, 2010.

Endnotes:

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^[1] G.R. No. 167614, March 24, 2009.

^[2] Section 10. Money Claims.

In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of (he unexpired term, whichever is less x x x.

^[3] Pascual v. Ramos, G.R. No. 144712, July 4, 2002, 384 SCRA 105, 113.

^[4] Mobile Protective & Detective Agency v. Ompad, G.R. No. 159195. May 9, 2005, 458 SCRA 308.