The 2009 Philippine Blog Awards

Friday, October 30, 2009

CORPORATE CHATS: Surveillance Cameras in Workplace - An Intrusion of Privacy?

I was recently asked about the legality in the Philippines of putting video surveillance cameras and setting up some “bait” in order to deter and/or learn the culprits of on-going thefts in the workplace. His question actually is anchored on the existence of privacy laws in the Philippines and if the setting up of surveillance cameras would be violative of said privacy laws, if there be any? Also,if an employee who committed theft in the workplace as seen in the surveillance cameras, could be dismissed?


I replied, in part, as follows:


Zones of privacy are recognized and protected under Philippine laws. The Civil Code provides that "[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as actionable torts several acts for meddling and prying into the privacy of another. Xxx. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law.

Moreover, the right of privacy is recognized and enshrined in several provisions of the Philippines Constitution. It is expressly recognized in Section 3(1) of the Bill of Rights :
"Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law."
Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz:ry
"Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
Sec. 2 . The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate from various sources-- governments, journalists, employers, social scientists, etc”. In no uncertain terms, the right to privacy does not bar all incursions into individual privacy. Xxx. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good.

Within the zones of privacy, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. Xxx the right to privacy is a 'constitutional right and 'the right most valued by civilized men, xxx adherence to the Universal Declaration of Human Rights which mandates that 'no one shall be subjected to arbitrary interference with his privacy and 'everyone has the right to the protection of the law against such interference or attacks.


Based on the foregoing discussion, I believe that the intended installation of hidden video surveillance cameras to primarily “bait” its employees is an intrusive invasion of privacy of the employees and is in violation of Philippine privacy laws particularly Republic Act No. 4200, and otherwise known as “An Act To Prohibit And Penalize Wire Tapping And Other Related Violations Of The Privacy Of Communication, And For Other Purposes” (for brevity “Anti-Wire Tapping Law”).

Under the statute, however, there is a way to make the installation of video surveillance lawful and not in violation of the right to privacy of the employees.

The Anti – Wire Tapping Law makes it
"unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described.
It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Sec. 3 hereof, shall not be covered by this prohibition.
Any person who wilfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding Sec. or who violates the provisions of the following Sec. or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof.
Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding Section of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation."


Thus, in accordance with the above-quoted provisions of the Anti-Wire Tapping Law, surveillance cameras can be set up and used for a variety of different security applications in the workplace, provided that the same is authorized by all the parties. “Parties” can include employees, officers, visitors, contractors and all persons who come in the building. The way to get the authorization of these “Parties” is through posting of “signs” on the wall and “notices” on conspicuous places. The fact that employees might have already known the existence of the surveillance cameras around is not enough. There should be a sign legible enough for ALL the Parties (not just employees) to know that surveillance cameras are actually in placed and is working. Lacking these required notices makes the recording a real “bait” or a “fishing expedition" and the same is inadmissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation as provided for in the Anti-Wire Tapping Law.

2.) If an employee is committing theft in the workplace, could he/she be dismissed?

Yes. The Philippine Labor Code authorizes an employer to terminate the services of an employee for loss of trust and confidence, provided that the loss of confidence arises from particular proven facts.

Article 282(c) of the Labor Code, provides that “employer may terminate an employment for “fraud or willful breach by the employee of the trust reposed in him by his employer or his duly authorized representative.”

One jurisprudence provides that “A company has the right to dismiss its erring employees if only as a measure of self-protection against acts inimical to its interest”. In another decision of the Supreme Court, it states that “Loss of confidence is established as a valid ground for the dismissal of an employee. The law does not require proof beyond reasonable doubt of the employee’s misconduct to invoke such a justification. It is sufficient that there is some basis for the loss of trust or that the employer has reasonable grounds to believe that the employee is responsible for the misconduct and his participation therein renders him unworthy of the trust and confidence demanded of his position”.

Dismissal of an employee caught of committing theft (by means of a video surveillance) is a recognized right of the employer as a measure of self-protection against acts inimical to its interest. An employer cannot be compelled to continue in employment an employee guilty of acts inimical to its interest, justifying loss of confidence in him.

May I reiterate, however, that in view of the right to privacy of the employees again as sanctioned under the Bill of Rights, due process has to be observed in cases of termination. Due process in terminating employee on this ground (or any ground for that matter) demands that the employer should furnish the worker whose employment is sought to be terminated a written notice containing a statement of the cause[s] for termination and afford him ample opportunity to be heard and to defend himself with the assistance of a representative if he so desires. Specifically, the employer must furnish the worker with two written notices before termination of employment can be legally effected: [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.

Thursday, October 15, 2009

PROPERTY POINT: CONSULTA



A certain Register of Deeds denied the registration of the Deed of Absolute Sale executed by a corporation sole on the ground that “Court Approval is necessary since the Vendor being a corporation sole pursuant to Section 113 of Batas Pambansa Blg. 68, the Corporation Code of the Philippines.”

Pursuant to Section 117 of Presidential Decree No. 1529, otherwise known as the Property Registration Decree, we elevate the matter to Land Registration Authority (LRA) by way of consulta.


BASIS OF CONSULTA:

Section 117 of the Property Registration Decree reads –

Section 117. Procedure. When the Register of Deeds is in doubt with regard to the proper step to be taken or memorandum to be made in pursuance of any deed, mortgage or other instrument presented to him for registration, or where any party in interest does not agree with the action taken by the Register of Deeds with reference to any such instrument, the question shall be submitted to the Commissioner of Land Registration by the Register of Deeds, or by the party in interest thru the Register of Deeds. Where the instrument is denied registration, the Register of Deeds shall notify the interested party in writing, setting forth the defects of the instrument or legal grounds relied upon, and advising him that if he is not agreeable to such ruling, he may, without withdrawing the documents from the Registry, elevate the matter by consulta within five days from receipt of notice of the denial of registration to the Commissioner of Land Registration.

The Register of Deeds shall make a memorandum of the pending consulta on the certificate of title which shall be cancelled motu proprio by the Register of Deeds after final resolution or decision thereof, or before resolution, if withdrawn by petitioner.

The Commissioner of Land Registration, considering the consulta and the records certified to him after notice to the parties and hearing, shall enter an order prescribing the step to be taken or memorandum to be made. His resolution or ruling in consultas shall be conclusive and binding upon all Registers of Deeds, provided, that the party in interest who disagrees with the final resolution, ruling or order of the Commissioner relative to consultas may appeal to the Court of Appeals within the period and in manner provided in Republic Act No. 5434.

STATEMENT OF MATERIAL DATES:

Include a statement that the corporation sole has until a particular date (it should be within five days)to elevate the matter by consulta to the Land Registration Authority.


STATEMENT OF FACTS:


ISSUE:


Whether or not the Deed of Absolute Sale is registrable, despite the absence of a Court Approval allowing the corporation sole, to sell the Property?

DISCUSSION:

1. Section 113 of the Corporation Code of the Philippines was the basis for the denial of registration by the Register of Deeds. Section 113 is hereto quoted in full, as follows:

“Acquisition and alienation of property. - Any corporation sole may purchase and hold real estate and personal property for its church, charitable, benevolent or educational purposes, and may receive bequests or gifts for such purposes. Such corporation may sell or mortgage real property held by it by obtaining an order for that purpose from the Court of First Instance of the province where the property is situated upon proof made to the satisfaction of the court that notice of the application for leave to sell or mortgage has been given by publication or otherwise in such manner and for such time as said court may have directed, and that it is to the interest of the corporation that leave to sell or mortgage should be granted. The application for leave to sell or mortgage must be made by petition, duly verified, by the chief archbishop, bishop, priest, minister, rabbi or presiding elder acting as corporation sole, and may be opposed by any member of the religious denomination, sect or church represented by the corporation sole: Provided, That in cases where the rules, regulations and discipline of the religious denomination, sect or church, religious society or order concerned represented by such corporation sole regulate the method of acquiring, holding, selling and mortgaging real estate and personal property, such rules, regulations and discipline shall control, and the intervention of the courts shall not be necessary. (portions in bold are added for emphasis)

2. Basing only on the first paragraph of the above – quoted Section 113 of the Corporation Code, the Register of Deeds is correct in his denial. However, he erroneously missed the proviso on the same Section 113 that states “Provided, That in cases where the rules, regulations and discipline of the religious denomination, sect or church, religious society or order concerned represented by such corporation sole regulate the method of acquiring, holding, selling and mortgaging real estate and personal property, such rules, regulations and discipline shall control, and the intervention of the courts shall not be necessary.”

3. A corporation sole was organized and registered with the Securities and Exchange Commission, under the following provision of the Corporation Code of the Philippines (“Corporation Code”):

“SECTION 110. Corporation Sole. — For the purpose of administering and managing, as trustee, the affairs, property and temporalities of any religious denomination, sect or church, a corporation sole may be formed by the chief archbishop, bishop, priest, minister, rabbi or other presiding elder of such religious denomination, sect or church.”

6. For the purpose of this consulta, it is instructive to note that corporation sole described in Section 113 of the Corporation Code, may purchase, hold and dispose of real estate and personal property for its church, charitable, benevolent or educational purposes. Moreover, corporation sole has rules, regulations and discipline which regulates the method of acquiring, holding, selling and mortgaging real estate and personal property, such that the existence of said rules, regulations and discipline, the intervention of the courts shall not be necessary as said rules, regulations and discipline would control.

10. Since corporation sole rules, regulations and discipline regulate the method of selling real estate property, such rules, regulations and discipline shall control, and the intervention of the courts shall not be necessary. Hence, the Deed of Absolute Sale is registrable, despite the absence of a Court Approval allowing LDS, being a corporation sole, to sell the Property.


PRAYER:

We therefore request that:

1. The Land Registration Authority directs the Register of Deeds to register the Deed of Absolute Sale between the parties--

2. The Register of Deeds be further directed to cause the cancellation of Transfer Certificate of Title No. and the issuance of a new title covering the ---square meters subject of the sale in favor of the buyer.

Based on LRA CIRCULAR No. 04-2005 otherwise known as the Supplement to Rules and Procedure on Consulta, it is directed that all Consulta shall be filed directly with the Register of Deeds concerned who shall endorse the same to the LRA after payment of the required fees. No consulta shall be entertained by LRA without the required endorsement from the Register of Deeds.