REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT

Intramuros, Manila

In the matter of Violation of Recruitment Rules

and Regulations/Regulations Implementing the
Labor Code, as Amended, Circulars, etc.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

MOTION FOR RECONSIDERATION

SO RESOLVED.

I.
TIMELINESS

1. On March 2, 2021, Respondent-Petitioner, through counsel received the

copy of the Resolution of the Honorable Office dated January 28, 2021.
Pursuant to the Rules, Respondent has a period of fifteen (15) days
from receipt or until March 17, 2021 to file its Motion for
Reconsideration. Hence, this Motion for Reconsideration.

II.
GROUNDS

A.

WITH ALL DUE RESPECT TO THE HONORABLE

SECRETARY OF LABOR, THERE WAS A PATENT
ERROR IN DISMISSING THE INSTANT APPEAL AND
AFFIRMING THE DECISION OF THE HONORABLE
DEPUTY ADMINISTRATOR OF THE POEA THAT
RESPONDENT-PETITIONER IS LIABLE FOR VIOLATION
OF SEC. 143 (II.I) OF RULE III, PART IVOF THE 2016
REVISED POEA RULES AND REGULATIONS

B.
 WITH ALL DUE RESPECT TO THE HONORABLE
SECRETARY OF LABOR, THERE WAS A PATENT
ERROR IN AFFIRMING THE DECISION OF THE
HONORABLE DEPUTY ADMINISTRATOR OF THE POEA
WHEN IT ADJUDGED THAT THE PENALTY IS PROPER
DESPITE THE PRESENCE OF SEVERAL MITIGATING
CIRCUMSTANCES

III.

ARGUMENTS / DISCUSSION

THERE WAS A PATENT ERROR IN

DISMISSING THE INSTANT APPEAL AND
AFFIRMING THE DECISION OF THE
HONORABLE DEPUTY ADMINISTRATOR OF
THE POEA THAT RESPONDENT-PETITIONER
IS LIABLE FOR VIOLATION OF SEC. 143 (II.I)
OF RULE III, PART IVOF THE 2016 REVISED
POEA RULES AND REGULATIONS

2. A careful perusal of the assailed resolution revealed that the Honorable

Secretary of Labor found herein Respondent/ Petitioner liable for the
charged violations because of the pieces of documentary evidence
showing and confirming the age of HSW A coupled by
Respondent/Petitioner’s admission of such mistake;

3. Further, in the same resolution, the defense of good faith was not
appreciated and accepted by this office by contending that violation of
the 2016 POEA Rules is in the nature of a malum prohibit;

4. It is a general principle in law that in malum prohibitum case, good

faith or motive is not a defense because the law punishes the prohibited
act itself. However, Respondent/Petitioner was charged and penalized
for violation of Section 143 (II.1), of Rule III, Part VI of the 2016
Revised POEA Rules and Regulations which provides:

II. LESS SERIOUS OFFENSES are those that by their

nature and effect are punishable by the penalty of suspension to
cancellation of license.
 l. Knowingly deploying a worker below the
minimum age requirement.

Penalty: 1st Offense — Suspension of License

(Two Mos. to Six Mos.)
nd
2 Offense — Suspension of License
(6 Mos. and 1 day to 1
year)
rd
3 Offense — Suspension of License
(1 yr. and 1 day to 2 yrs.)
th
4 Offense — Cancellation of License

5. Based on the foregoing, what the law punishes is the act of knowingly
deploying a worker below the minimum age requirement, however in
Respondent-Petitioner’s case, it was not made consciously and
intentionally;

6. At the risk of being repetitive, Respondent/Petitioner did not

knowingly, wittingly, intentionally deployed a worker below the
minimum age requirement. Again, such mistake was wholly because of
the fact that its employee, in charge with the screening and evaluation
of deployment papers, overlooked the age of HSW A. It is a plain
oversight and honest mistake on the part of Respondent/Petitioner.

7. This fact alone would show that there is indeed no intention on the part
Respondent/Petitioner to deploy a worker below the age requirement.
As interpreted by Spanish courts, the term "knowingly" means sure
knowledge, conscious and deliberate intention to do an injustice. 1
Black Law Dictionary defined, “knowingly as consciously, intelligently,
wilfully, or intentionally. 2 As stated in the 2016 POEA Rules and
Regulations, it penalizes the act of “knowingly deploying a worker
below the minimum age requirement” which must be shown beyond
doubt that Respondent/Petitioner made the questioned act with
conscious and deliberate intent to do an injustice. Respondent/Petitioner

1
Decisions of the Supreme Court of Spain, October 1884 and January 10, 1900, cited in
Guevarra, Commentaries on the Revised Penal Code, p. 418.

2
Black's Law Dictionary, Fifth ed., 784
 differentially submits that there is no such conscious and deliberate
intention as explained above;

8. Clearly, the Honorable Secretary of Labor fell short of the

requirements for establishing its charge of “knowingly deploying a
worker below the minimum age requirement” against
Respondent/Petitioner. To commit the offense, the Honorable Office
must not only prove beyond doubt that Respondent/Petitioner’s action
is patently contrary to law and a violation of the 2016 Revised POEA
Rules and Regulations but it should also be proven that the same was
made with deliberate intent to perpetrate an injustice, which is clearly
lacking in this case. Besides the element of knowledge or the presence
of conscious and deliberate intention to perpetrate an injustice cannot
be presumed and must be proven by substantial evidence;

9. Based on the foregoing, the violation of Section 143 (II.1), of Rule III,
Part VI of the 2016 Revised POEA Rules and Regulations was not
substantially proven;

10.With respect to the claim of good faith, Respondent/Petitioner was able

to sufficiently establish that it acted with good faith. There are clear
manifestations of good faith in this case, to wit:

a. The act of deploying HSW A was shown to be made by a mere

oversight on the part of the officer-in-charge in view of the
voluminous documents he encountered everyday;
b. Further, all documents submitted were true, genuine and verified
signifying the sincere intent to do no falsehood not to mention the
fact that these documents were likewise authenticated, verified
and checked by the POLO and the POEA;
c. The element of knowledge or the “conscious, deliberate
intention to do an injustice” was not shown nor proven by
substantial evidence;
d. Respondent/Petitioner immediately expressed its intent to
conduct an investigation in a letter sent to the Honorable
Administration dated March 12, 2019, after which, the concerned
employee was reprimanded.

11.The above-stated indicators imply a sincere intent on the part of

Respondent/Petitioner not to do any falsehood or to seek any undue
 advantage. The Supreme Court pronounced and defined “good faith” as
–

In the assailed Resolution, the Honorable Secretary of Labor

states that the penalty imposed was proper since the mitigating
circumstances have not been raised earlier in the proceedings before the
POEA;

12.Admittedly, at the time of the filing of the Answer/Explanation,

Respondent/Petitioner herein did not categorically invoke the
mitigating circumstances in Section 172, Rule V, Part VI of the
2016 Revised Rules, to wit:

SECTION 172. Mitigating, Aggravating or Alternative

Circumstances. — In the determination of the penalties to be
imposed against a licensed recruitment agency, the following
mitigating, aggravating and alternative circumstances attendant to
the commission of the offense shall be considered:

a. First offender;
b. Admission of guilt and voluntary restitution, where
applicable;
c. Good faith;
d. Exemplary performance;
e. Habitual offender;
f. Prejudice to the worker;
g. Gross negligence; or
h. Other analogous circumstances.

The party must invoke in the complaint or Answer/Explanation the

existence of any of the above enumerated circumstances. However,
when the imposable penalty is cancellation of license, the attendant
circumstances shall not be applied.

13. Be it known however, that during the time of the filing of the
Answer/Explanation, Respondent/Petitioner was not assisted by counsel
and that the said Answer/Explanation was merely made and done by
one of its employees. This could be confirmed by the fact that the
Answer/Explanation was signed by the President Ramon Macaraig and
 not by a lawyer. It was only at the time of the Filing of the Appeal that
Respondent/ Petitioner engaged the services of a counsel;

14. Respondent/Petitioner’s employee is not expected to be proficient with

the basic intricacies of the legal system and their implications, in this
case the failure to invoke hereunder mitigating circumstances which
Respondent/Petitioner hereby invoked as follows:

a. Clearly, Respondent/Petitioner acted in good faith as

explained above;

b. This is the first time that Respondent/Petitioner was charged

under Article 143 (II.l,o) of the 2016 Revised POEA Rules and
should therefore be entitled to the mitigating circumstances. This
could likewise confirmed by the Resolution of Honorable
Secretary of Labor of imposing meting out the penalty for the
first offense;

c. B and International Services, Inc.’s track record would

indubitably show that it did not engage in the recruitment and
deployment of unqualified OFWs. It does not engage in activities
which placed its license in jeopardy and its reputation in the line;

d. Respondent/Petitioner’s act of owning to its own honest mistake

and plain oversight;

e. Likewise, there appears no indication of any aggravating

circumstances in the present case. Nor Respondent/Petitioner
could be considered as a habitual offender or acted with gross
negligence.

15.Respondent/Petitioner respectfully begs and implores the consideration

of the Honorable Office to consider the mitigating circumstances
present in this case. The failure to categorically invoke the same was
merely because of the fact that the Answer/Explanation was prepared
by one of his employees and not by a lawyer. As explained above, this
employees is considered an ordinary layman who is not blessed with
familiarity with the intricacies of the law;

16.The presence of strong consideration of substantial justice warrants the

relaxation of the rules and consideration of the mitigating circumstances
 which are remarkably present in the instant case. As enunciated by the
Supreme Court, in liberally applying the rules in the case at bar, the
Court does not wish to brush aside its importance; rather, it emphasizes
the nature of the said rules as tools to facilitate the attainment of
substantial justice. 3

17.In this case, the failure to invoke the same in the Answer/Explanation
should not be strictly applied to an ordinary layman who may not be
knowledgeable about the intricacies of the law. Such being the case, the
matters raised in the Appeal Memorandum which
Respondent/Petitioner hereby reiterate in this Motion for
Reconsideration warrant the relaxation of the rules concerning issues
raised for the first time on appeal especially considering the above-
stated reason and the need for substantial justice;

18.In view of the foregoing, it is proper to apply the provision of Section

173 in the imposition of penalty, to wit:

SECTION 173. Imposition of Penalty. — When

applicable, the imposition of the penalty may be made in
accordance with the following:

a. The minimum of the penalty shall be imposed where only

mitigating and no aggravating circumstances are present.
b. The medium of the penalty shall be imposed where no
mitigating and aggravating circumstances are present.
c. The maximum of the penalty shall be imposed where only
aggravating and no mitigating circumstances are present.
d. Where aggravating and mitigating circumstances are
present, paragraph (a) shall be applied where there are
more mitigating circumstances present; paragraph (b)
shall be applied when the circumstances equally offset
each other; and paragraph (c) shall be applied where
there are more aggravating circumstances.

19.Applying the aforesaid provision, and in view of the

COPY FURNISHED:
3
Sumbilla v. Matrix Finance Corporation, 762 Phil. 130, 137-138 (2015).
 EXPLANATION

It is respectfully manifested that service of the foregoing Motion for

Reconsideration was effected through registered mail to the above-named
parties pursuant to Rule 13 Section 16 and 17 of the 2019 Amendments to the
1997 Rules of Civil Procedure.

CITY OF MANILA )

VERIFICATION WITH CERTIFICATION OF NON-FORUM

SHOPPING
IG, of legal age, Filipino, having been duly sworn to in accordance with law,
hereby depose and state that:

1. I am the President of A.S.H. Manpower International Services, Inc., the

Respondent/Petitioner in this case;

2. I have caused the preparation of the foregoing Motion for Reconsideration

and I have read the contents thereof which are true and correct of my own
personal knowledge and/or based on authentic records;

3. This Motion for Reconsideration is not filed to harass, cause unnecessary

delay or needlessly increase the cost of litigation; and

4. The factual allegations therein have evidentiary support or, if specifically

so identified, will likewise have evidentiary support after a reasonable
opportunity for discovery;

5. I certify that I have not commenced any other action or filed any claim
involving the same issues in any court, tribunal or quasi-judicial agency
and, to the best of my knowledge no such other action or claim is pending
therein;
 6. That if I should thereafter learn that the same or similar action or claim
has been filed or is pending, I undertake to inform this Honorable Court
within five (5) calendar days from notice thereof.

IN WITNESS WHEREOF, I hereby set my hand in writing this

_______ day of ___________________, here in the City of Manila.

competent proof of identity.

Doc. No. _____

Page No. _____
Book No. _____
Series of 2021.