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Developer wants SC review of P60M ruling for foreigner


02/11/2010 [ tribune.net.ph ]

A real estate developer is asking the Supreme Court (SC) to reconsider an irregular ruling awarding P60 million to a foreigner who filed a labor case against the firm after working in the country for two months.

In a motion for reconsideration before the SC’s Third Division, Eulalio Ganzon of E. Ganzon Inc. (EGI) asked the tribunal to reverse its ruling last year in favor of Australian national Andrew James McBurnie.

EGI urged the SC to instead uphold an earlier ruling by the Court of Appeals (CA) against McBurnie.

The developer also said that in any case, McBurnie is still bound by a ruling issued by the National Labor Relations Commission (NLRC) which reversed the original award of more than P60 million made by a labor arbiter.

EGI claims the original labor arbiter’s ruling which awarded more than P60 million to McBurnie was illegal since the latter “had no Alien Employment Permit (AEP) and no working visa, and who, consequently, alleges an employment agreement that is illegal.”

A subsequent ruling by the NLRC two months later on Nov. 17, 2009 ruled that McBurnie is “not an employee, but a business partner.”

“Petitioner McBurnie did not implead the national labor relations commission (NLRC) in his appeal herein, making the appeal ineffective against the NLRC,” EGI’s counsels said.

The NLRC concluded in its decision that though McBurnie relies heavily on the Employment Contract dated May 11, 1999, nevertheless, “the employment agreement never gave rise to an employer-employee relationship because of the legal impossibility.”

Among the evidence considered by the NLRC was a May 11, 1999 letter of Eulalio Ganzon to McBurnie.

In the said letter, however, Ganzon emphasized that “it is understood that this Contract is made subject to the understanding that it is effective only when the project financing for our Baguio hotel project pushed through.”

“The agreement with EGI Managers Inc. is made now to support your need to facilitate your work permit with the Department of Labor and Employment in view of the expiration of your contract with Pan Pacific,” Ganzon reasoned in the said letter.

In its decision, the NLRC said “the employment agreement never gave rise to an employer-employee relationship because of the legal impossibility” because the agreement was subject to conditions, which include the successful completion of the project financing for its hotel project in Baguio City, and McBurnie’s acquisition of a new Alien Employment Permit for his new work.

“Neither condition was fulfilled,” the NLRC added.

Since McBurnie did not implead the NLRC in his appeal to the SC herein, EGI said the appeal is ineffective against the NLRC.

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