Sunday, June 10, 2012

THROWING THE BOOK AT THEM: CAB Suspends Local Airlines’ Overbooking, No Refund and No Rebooking Practices

By Siesta-friendly

Sometimes the government does work to promote public interest.  Prime examples are Resolutions Nos. 28 and 29 (BM3-05-11-2012) adopted by the Civil Aeronautics Board (CAB) on May 11, 2012.

Suspension Overbooking Practice

In Resolution No. 28 (BM3-05-11-2012), the CAB suspended “the application of pertinent provisions of Economic Resolution No. 7, as amended (E.R. 7), relating to overbooking” thus “effectively banning the practice of overbooking in the domestic sector.” 

In justifying its move, the CAB stated in the Whereas clauses of Resolution No. 28 that -

“the Board takes cognizance of the prevailing public outrage against delayed and/or cancelled flights, as well as passengers denied boarding, presumably due to overbooking in domestic scheduled flights;” and

“there is thus a need to re-examine the propriety of overbooking as a revenue-management option practiced by airlines in the domestic sector vis-à-vis their obligation under their Certificate of Public Convenience and Necessity to provide services that are efficient and conducive to the convenience of passengers”.

Suspension of Restriction on No Refund and No Rebooking Practice

In Resolution No. 29 (BM3-05-11-2012), the CAB suspended “the non-refundable and non-rebookable conditions of low-cost fares for domestic flights.”

Naturally, Resolution 29 applies “only to low-cost and regular fares for domestic scheduled flights of domestic carriers.” (Section 1)

The period of refundability and rebookability are “subject to the airline’s conditions of carriage, but no more than one (1) year from the date of the original or first intended flight.” (Section 4)

On Rebooking  

“The passenger may rebook his/her flight in case of:

a.          Cancellation by the passenger of the reservation, subject to payment of reasonable rebooking fees that shall be limited to actual administrative costs, and/or the fare difference, if any. Provided, that late check-ins and actual “no-shows” shall be considered as mere cancellation of the reservation by the passenger …
b.         Flight cancellations for security and safety reasons, suspension of a route, or other circumstances beyond the control of the airline.
c.          Flight diversions or flight delays of at least one (1) hour.” (Section 2)

On Refunds

“Subject to the submission of required documents, the passenger may request for a refund of his/her fare in case there is/are:

a.       Cancellations by the airline and route suspensions for reasons other than safety and security, subject to payment of reasonable administrative or other applicable fees.
b.      Flight delays or postponements of more than three (3) hours.
c.       Disallowance of boarding or failure to board for reasons other than non-observance of airline or government policies or laws.  Provided, that on top of the refund, the airline shall pay the passenger denied  - boarding compensation, as provided for under E.R. 7, amended.
d.      Death or serious illness of the passenger before the flight.” (Section 3)

In response to criticism that the CAB’s restrictions may lead to the demise of low cost carriers (LCC), CAB executive director Carmelo Arcilla said -

"The operation of an airline, whether LCC or legacy, is a public utility and as such, an airline is obligated to provide public service and convenience more than its right to generate revenues and its business interests. While we are happy with the success of LCCs in the Philippines, it is instrumental in the growth of aviation and air traffic in the country, we have to draw the line. Low-cost airline doesn't mean that services can be shabby, services can be unreliable and inadequate".[1]

Denying refunds or rebookings to passengers who came on time, paid in full and have done everything to take their flights, is just unfair and tantamount to cheating.  While making flights affordable for every Juan is laudable, making some Juan suffer is not. 

Since the old rules have been merely suspended pending further review of the issues, perhaps overbooking may be allowed to ensure airlines fill as many empty seats as possible (in the event of last-minute passenger cancellations) to allow them to make the most of their costs. But, as practiced in other countries, airlines must be required to ask for volunteers before automatically bumping off a passenger and offer those bumped-off rewards like free upgrades, free flights, free meals, etc. 

It is unimaginable how refunds and rebookings would spell the demise of budget airlines as they offer the best marketing tools to ensure every Juan’s return. 

[1]  Garcia, C. R. A. (2012, June 5). Stricter cab rules may spell demise of budget airlines. Retrieved from


Monday, June 4, 2012

FILED AND FIRED: No Privacy for Office Computers

By Obiter07

Your public and private life gets to be intertwined in your workplace computer.  As you spend most of your time at the office, the tendency to intermingle personal and work files in your desktop or laptop becomes more difficult to avoid.  You get to download vacation pictures there from your camera, you surf the internet for personal purposes or even compose some communications which are not connected your work.  Be warned though.  The Supreme Court has upheld the dismissal of a government employee using evidence taken from his office computer in Pollo vs. Chairman David, G.R. No. 181881 dated October 18, 2011. This is a case concerning the search of an office computer which led to the dismissal of a government employee for “dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and violation of Republic Act (R.A.) No. 6713 xxx.” 

The respondent was a specialist and OIC of the Civil Service Commission.  The CSC Chair received an anonymous complaint that he was acting as a lawyer for government employees with pending cases before the CSC. A team was formed and directed to “to back up all the files in the computers found in the Mamamayan Muna (PALD) and Legal divisions.”

The respondent got wind of this via text message from one Director. Petitioner replied that he was leaving the matter to the director and that he will just get a lawyer. 

It was discovered that from the files copied from respondent’s computer that “40 to 42 documents, were draft pleadings or letters in connection with administrative cases in the CSC and other tribunals.” On this basis, the chair issued a show-cause order for respondent to submit his explanation or counter-affidavit. The Chair made a finding that “most of these draft pleadings are for and on behalves of parties, who are facing charges as respondents in administrative cases.  This gives rise to the inference that the one who prepared them was knowingly, deliberately and willfully aiding and advancing interests adverse and inimical to the interest of the CSC as the central personnel agency of the government tasked to discipline misfeasance and malfeasance in the government service.  The number of pleadings so prepared further demonstrates that such person is not merely engaged in an isolated practice but pursues it with seeming regularity.  It would also be the height of naivete or credulity, and certainly against common human experience, to believe that the person concerned had engaged in this customary practice without any consideration, and in fact, one of the retrieved files xxx appears to insinuate the collection of fees.  That these draft pleadings were obtained from the computer assigned to Pollo invariably raises the presumption that he was the one responsible or had a hand in their drafting or preparation since the computer of origin was within his direct control and disposition.”

Respondent filed a comment, denying he was the subject of the anonymous complaint, that he was not a lawyer nor was he engaged in lawyering. Similar to the recently concluded impeachment trial, he charged the CSC of “conducting a “fishing expedition” when they unlawfully copied and printed personal files in his computer, and in subsequently asking him to submit his comment which violated his right against self-incrimination.” He argued that he had protested the taking of his computer, asserting that there were “personal files and those of his sister, relatives, friends and some associates” in it and that he did not authorize the access of the same. Temporary “use and ownership of the computer issued under a Memorandum of Receipt (MR) is ceded to the employee who may exercise all attributes of ownership, including its use for personal purposes.”

The CSC thereafter charged him with “Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees).”   Respondent assailed the charges as without basis, being based on an illegal search, denied the charges and alleged that he had permitted other persons to use his computer.

After proceedings, he was found guilty and dismissed from the service. Respondent appealed to the Supreme Court raising as a ground, among others, that he should have been allowed to invoke his right to privacy, his right against unreasonable search and seizure and right against self-incrimination alleging that government ownership of the computer does not extend to personal files.

The Court viewed the issues as revolving around respondent’s reasonable expectation of privacy in his office and computer files and if the search made on his computer was “reasonable in its inception and scope.”      In looking at those issues, the Court held that the circumstances to consider are “(1) the employee’s relationship to the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions to maintain his privacy in the item.” 

The Court found that respondent did not have “an actual (subjective) expectation of privacy either in his office or government-issued computer which contained his personal files.” He did not allege he had his own separate enclosed office that was not accessible to third parties. He did not allege that he used passwords or that his office was always locked. He even admitted that he normally had visitors in his office and even unknown people were allowed to use his computer.

Even if he had “at least a subjective expectation of privacy in his computer as he claims” this was negated by the CSC’s policy regulating the use of office computers.  An Office Memorandum clearly provided that “Computer Resources are the property of the Civil Service Commission and may be used only for legitimate business purposes.” It goes further to state that –

4.      No expectation of privacy.  Users except the Members of the Commission shall not have an expectation of privacy in anything they create, store, send, or receive on the computer system xxx
5.      Waiver of privacy rights.  Users expressly waive any right to privacy in anything they create, store, send, or receive on the computer through the Internet or any other computer network.  Users understand that the CSC may use human or automated means to monitor the use of its Computer Resources.
6.      Non-exclusivity of Computer Resources.  A computer resource is not a personal property or for the exclusive use of a User to whom a memorandum of receipt (MR) has been issued. It can be shared or operated by other users. However, he is accountable therefor and must insure its care and maintenance.”


12.  Responsibility for passwords.  Users shall be responsible for safeguarding their passwords for access to the computer system.  Individual passwords shall not be printed, stored online, or given to others.  Users shall be responsible for all transactions made using their passwords. No User may access the computer system with another User’s password or account.
13.  Passwords do not imply privacy.  Use of passwords to gain access to the computer system or to encode particular files or messages does not imply that Users have an expectation of privacy in the material they create or receive on the computer system. The Civil Service Commission has global passwords that permit access to all materials stored on its networked computer system regardless of whether those materials have been encoded with a particular User’s password. Only members of the Commission shall authorize the application of the said global passwords.”
                        [Emphasis supplied.]

The CSC had put its employees on notice that “they have no expectation of privacy in anything they create, store, send or receive on the office computers, and that the CSC may monitor the use of the computer resources using both automated or human means.”  This meant “on-the-spot inspections may be done to ensure that the computer resources were used only for such legitimate business purposes.” 

On the reasonableness of the search conducted, this was in “connection with investigation of work-related misconduct prompted by an anonymous letter-complaint xxx.” The Court held that a “search by a government employer of an employee’s office is justified at inception when there are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-related misconduct.”

The Court cited the CSC’s ruling that the search was “undertaken in connection with an investigation involving a work-related misconduct xxx.”  xxx  That it was the computers that were subjected to the search was justified since these furnished the easiest means for an employee to encode and store documents.  Indeed, the computers would be a likely starting point in ferreting out incriminating evidence. Concomitantly, the ephemeral nature of computer files, that is, they could easily be destroyed at a click of a button, necessitated drastic and immediate action.”

Hence, respondent cannot claim a violation of the right to privacy since “certain legitimate intrusions into the privacy of employees in the government workplace xxx.” The “search of petitioner’s computer was justified there being reasonable ground for suspecting that the files stored therein would yield incriminating evidence relevant to the investigation being conducted by CSC as government employer of such misconduct subject of the anonymous complaint.  This situation clearly falls under the exception to the warrantless requirement in administrative searches xxx.” The Court found the evidence to be admissible and upheld the CSC’s findings dismissing him from the service.

The case is to be distinguished from the case of Anonymous Letter-Complaint against Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila where a branch clerk was accused of attending to personal cases.  The Court denied the use of evidence “obtained from his personal computer against him for it violated his constitutional right against unreasonable searches and seizures.”  [Emphasis supplied.]

Employers are hence forewarned to have clear policies in place, should they wish to limit the use of computers to official purposes only.  Employees are now put on notice that certain files can get them fired.