Topic: Alien Employment Regulation
(*I didn’t include any procedural issue w/c is the bulk of the discussion)
McBurnie V Ganzon
October 17, 2013
J. Reyes
Facts:
On October 4, 2002, McBurnie, an Australian national, instituted a
complaint for illegal dismissal and other monetary claims against the
respondents. McBurnie claimed that on May 11, 1999, he signed a five-year
employment agreement with the company EGI as an 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.
In a Decision dated September 30, 2004, the LA declared McBurnie
as having been illegally dismissed from employment, and thus entitled to
receive: (a) US$985,162.00 as salary and benefits for the unexpired term of
their employment contract, (b) ₱2,000,000.00 as moral and exemplary
damages, and (c) attorney’s fees equivalent to 10% of the total monetary
award.
On appeal, the NLRC dismissed the appeal and motion to reduce the
bond of approximately P60M. On one of the many appeals to CA, it granted
the motion to reduce appeal bond and directed NLRC to give due course to
their appeal. NLRC then reversed and set aside the ruling of LA above. The
NLRC rule that: (1) McBurnie was never an employee of the respondents
and (2) he failed to obtain work permit that would have allowed him to
work for the respondents. The third division of SC however reversed the
decision of CA granting the motion to reduce the bond and it directive for
the NLRC to give course to the appeal. The earlier ruling of LA thus became
final. This is deemed a third MR. (Note: The court held that even if it is
procedurally defective since it’s already a third MR, it does not preclude the
court from ruling for the sake of substantial justice.)
Issue: W/N McBurnie, an Australian national can be considered as an
employee of Ganzon? NO
 The court basically adopted the ruling of NLRC.
 Court held that before McBurnie can allege illegal dismissal, it was
necessary for him to establish, first and foremost, that he was
qualified and duly authorize to obtain employment w/in our
jurisdiction. This requirement for foreigners who intend to work
w/in the country to obtain employment permit is laid down in Art.
40 Title II of the Labor Code. Failure to do so poses serious problem
in obtaining relief from the Court. Hence, by the very fact that
McBurnie failed to obtain employment permit necessitates the
dismissal of his labor complaint.
 The court also noted that McBurnie failed to establish employer –
employee relationship. The records disclose that employment of
McBurnie is conditional on the successful completion of the project
financing for the hotel project in Baguio City and his acquisition of
Alien Employment Permit.
o It must be noted that the project didn’t push through.
 McBurnie likewise failed to prove employer-employee relationship
in accordance w/ the four-fold test: (1) selection & engagement (2)
payment of wages (3) power of dismissal and (4) control.
 McBurnie also failed to show any document such as payslips or
vouchers of his salaries during the time that he allegedly worked for
the respondent.