WHEN SHOULD THE ALIEN APPLY FOR ALIEN EMPLOYMENT PERMITP?

ALIEN EMPLOYMENT PERMIT
2nd DIVISION G.R. No. 169207 March 25, 2010 WPP MARKETING COMMUNICATIONS, INC., vs. JOCELYN M. GALERA,

The Ruling of the Court

1. Whether Galera is an Employee or a Corporate Officer: Corporate officers are such by virtue of either the Corporation Code or the corporation’s by-laws.

a. Galera’s appointment as Vice-President with the operational title of Managing Director of Mindshare was an appointment to a non-existent corporate office.
b. The four-fold test will show that Galera was an employee
(1) employment contract states where and how often she is to perform her work; WPP completely controls the compensation she receives; and she is subject to the regular disciplinary procedures of WPP.
(2) contract states that she is a permanent employee.
(3) contract states that the rights to any invention, discovery, improvement in procedure, trademark, or copyright created or discovered by GALERA during her employment shall automatically belong to WPP. The Intellectual Property Code states that this occurs if the creator is an employee of the one entitled to the patent or copyright.
(4) the Employment Contract, states that her right of redress (in cases of disciplinary matters) is through Mindshare’s Chief Executive Officer for the Asia-Pacific.
c. GALERA signed the DOLE Alien Employment Permit and the application for a 9(g) BID visa as WPP’ Vice President. These should not be considered against her. Assuming that her appointment as Vice-President was a valid act, these appointments occurred after she was hired as a regular employee, with no appreciable change in her duties.

2. Labor Arbiter and the NLRC have jurisdiction.

3. Whether WPP illegally dismissed Galera
a. WPP failed to prove any just or authorized cause, belied further by Galer’s documentary evidence which contents are contrary to the reasons in the termination letter.

b. The law requires that the employer to issue the worker two written notices: (1) notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice which informs the employee of the employer’s decision to dismiss him. WPP’s did not comply with the two-notice rule.

3. Whether Galera is entitled to the monetary award: Galera worked in the Philippines without a proper work permit. The Labor Code and its Implementing Rules and Regulations state that the employment permit must be acquired prior to employment. To grant Galera’s prayer is to sanction violation of the Philippine labor laws requiring aliens to secure work permits before their employment.

The status quo must prevail; however, Galera may seek relief from other jurisdictions.