5:52 am Wednesday, September 13, 2017
By: Atty. Dennis R. Gorecho
It is settled that the employer has the burden to prove that the dismissal of a seafarer is based on a valid cause. To discharge this burden, the employer must present substantial evidence – or such amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion – that the cause of the seafarer’s dismissal was valid. Specifically, the employer must comply with the following requisites: (1) the dismissal must be for a just or authorized cause, and (2) the employee to be dismissed must have been afforded due process of law.
One of the twenty one (21) offenses which are considered valid grounds for dismissal under the Philippine Overseas Employment Administration- Standard Employment Contract (POEA-SEC), include those causing through neglect, damage loss, spoilage or deterioration of ship’s stocks and property.
Seafarers at sea work in tough environmental conditions which often require good amount of physical strength. The food for seafarer thus needs to be of the best quality with all the necessary ingredients required to support a healthy body and mind. Food spoilage is when there is a loss of quality or nutritional value of the food that is often linked to the food deteriorating in taste, smell, flavor or appearance. Most of spoilage losses are the result of undetected loss of refrigeration or storage temperatures for the ship’s provision, especially when personnel are not present.
Even when an employee is found to have transgressed the employer’s rules, in the actual imposition of penalties upon the erring employee, due consideration must still be given to his length of service and the number of violations committed during his employ. Where a penalty less punitive would suffice, whatever missteps may have been committed by the worker ought not to be visited with a consequence so severe such as dismissal from employment (PLDT vs. NLRC, 303 SCRA 9).
When a seafarer commits such violations, he may be penalized by the master of the vessel with dismissal and be made to pay the cost of repatriation and his replacement. Additionally, an administrative complaint or disciplinary action against the seafarer may be filed before the POEA, who, after due investigation, may impose penalties ranging from suspension to delisting, depending on the frequency of the violation(s).
Under the “two-notice rule”, an erring seafarer is given a written notice of the charge against him and is afforded an opportunity to explain or defend himself. Should sanctions be imposed, then a written notice of penalty and the reasons for it shall be furnished the erring seafarer. It is only in the exceptional case of clear and existing danger to the safety of the crew or vessel that the required notices are dispensed with; but just the same, a complete report should be sent to the manning agency, supported by substantial evidence of the findings (Skippers Pacific, Inc. v. Mira 440 Phil. 906 (2002)
In case of an illegal dismissal, a seafarer is entitled to receive from his employers His salaries for the unexpired portion of his employment contract not merely his salaries for three (3) months for every year of the unexpired term.
It is well-settled that the burden of proving that the termination of an employee was for a just or authorized cause lies with the employer. If the employer fails to meet this burden, the conclusion would be that the dismissal was unjustified and, therefore, illegal. In order to discharge this burden, the employer must present substantial evidence, which is defined as that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion, and not based on mere surmises or conjectures (MAERSK-FILIPINAS CREWING, INC., vs. TORIBIO C. A VESTRUZ, G.R. No. 207010 February 18, 2015)