Principles on dismissal of Filipino seafarers
The following article was first published in 1999. It provides guidelines on dismissal of
seafarers. The article is still valid
today with one modification. In the
recent Supreme Court decision of Agabon vs. NLRC, G.R. No. 158693, November 17,
2004, the Court ruled that non-observance of due process does not mean that the
dismissal is illegal. The dismissal can still be
considered legal provided there was just cause for termination. The employer
was just subjected to a fine for not following procedural due process. It is
important to stress, however, that it is still a good practice to follow
strictly the rules on procedural due process as non-compliance will influence
the NLRC or the courts to rule against the employer.
Main Article. There
are two (2) elements that must be present before a dismissal of seafarer can be
held valid. These are:
1. Just cause (substantive)
2. Due process (procedural)
Just causes are
enumerated in Section 33 of the POEA Standard Employment Contract (Table of
Offenses and Corresponding Administrative Penalties) and/or the relevant
Collective Bargaining Agreement. The
list is not exclusive as analogous acts my also constitute just causes. It is highly
recommended that the acts/circumstances constituting just causes be entered in
the vessels logbook which is the repository of the day to day transactions that
transpires on board the ship. The Courts have fairly relied on the entries in
the logbook because they were made by a person in the performance of a duty
required by law (as in the case of a Master).
Procedural due process involves notice and
investigation/hearing. This procedural
aspect in effecting dismissal is essentially set out in Section 17 of the POEA
Standard Employment Contract (Disciplinary Procedures) where the two-notice
rule is provided.
--The first written notice to be served on the seafarer
should contain the grounds for the charges/infractions as well as the date,
time and place for formal investigation of the charges.
There is no prescribed formality in conducting the
investigation. What is essential is to give the alleged erring seafarer ample
opportunity to explain or defend him.
In any event, it is best to document the investigation
proceedings in order to prepare for any eventuality. The measures suggested are
(a) Record or transcribe the proceedings and prepare minutes
thereof. Have all persons who took part
therein sign the minutes including the seafarer involved.
(b) Enter in the vessels logbook what transpired during the
investigation including seafarers summary of statements/defenses, witnesses
presented, documents submitted, seafarers admission, etc.
-- The second written notice is the
notice of dismissal to be served on the erring seafarer stating the reasons
Please note that seafarer may contest the Master and/or
employers decision to dismiss him by filing an illegal termination case before
the labor tribunal. As the burden of
proof that the termination was valid rests on the employer and considering the
difficulty in retrieving documents from a vessel and/or locating a crew to
testify in the NLRC, it is good policy for the employer to gather the evidence
in support of a prospective defense against an illegal termination claim.
The evidence needed for such purpose may vary depending on
the circumstances of each case but based on experience; some of the useful
documents are the following:
1. Vessel’s logbook
2. Master’s or
Affidavit/statements of crew-members/other witnesses attesting to the
offenses committed by the seafarer
4. Minutes of
5. First and second notices (as discussed above)
6. Performance rating reports
7. Company policy
8. Police and other
authorities’ report of the incident
As the authenticity and genuineness of these pieces of
evidence may become an issue in the future, it is preferable that the same be
authenticated or attested by the nearest Philippine Consulate or Labor Attach.
While observance of
procedural due process is imperative, it does admit of certain exceptions. One exception under the POEA contract is when
observance of procedural due process will result in a clear and existing danger
to the safety of the crew and vessel.
In conclusion, it is important to observe the substantive
and procedural aspects of termination.This will give the employer a fair chance
of defending itself should the seafarer decide to challenge the validity of his
Court declares seafarer’s dismissal illegal as reason for dismissal was not
Seafarer was engaged as Chief Cook. During employment, the Master of the vessel
gave a notice of dismissal to the seafarer reasoning that because of his handicap
of stiff right arm, he cannot perform his job well such as serving the meals,
cleaning the kitchen, mess rooms and stores.
That this functions can only be done by him with the assistance of a
Mess man. On the basis of the dismissal
letter, the seafarer was repatriated and after some time, filed a claim for
illegal dismissal with the Labor Arbiter.
The Labor Arbiter granted the claim but this was set aside
by the NLRC on appeal. Upon petition,
the Court of Appeals reinstated the award of the Labor Arbiter and declared the
dismissal to be illegal. Upon reaching the Supreme Court, the dismissal was
affirmed to be illegal.
The Court explained that as a general concept, poor
performance is tantamount to inefficiency and incompetence in the performance
of official duties. An unsatisfactory rating can be a just cause for dismissal
only if it amounts to gross and habitual neglect of duties. Poor or
unsatisfactory performance of an employee does not necessarily mean that he is
guilty of gross and habitual neglect of duties
To ascribe gross neglect, there must be lack of or failure
to exercise slight care or diligence, or the total absence of care in the
performance of duties. In other words, there is gross neglect when the employee
exhibits thoughtless disregard of consequences without exerting effort to avoid
them. On the other hand, habitual neglect involves repeated failure to perform
duties for a certain period of time, depending upon the circumstances, and not
mere failure to perform duties in a single or isolated instance.
The dismissal report against the seafarer did not describe
the specific acts that would establish his alleged poor performance, or his
want of even slight care in the performance of his official tasks as chief cook
for a certain period of time; hence, even assuming that seafarer’s performance
was unsatisfactory, the company failed to show that his poor performance
amounted to gross and habitual neglect of duties.
The Court likewise noted the failure of the Master to comply
with the procedure in terminating the employment of a seafarer based on the
POEA Contract as seafarer was not given a written notice stating the charges
against him and an opportunity to defend him.
Section 17 of the POEA Contract specifically provides that
before an erring seafarer can be validly dismissed, he must be given by the
Master of the vessel a written notice stating the charge or charges against
him; and, the date, time and place for a formal investigation of such charge.
Thereafter, an investigation or hearing, duly documented and entered in the
ship’s logbook, must be conducted to give the seaman the opportunity to explain
or defend himself. If found guilty, the seaman shall be given a written notice
of the penalty meted out against him with the specific reasons for the penalty
so imposed. Such procedure may be
dispensed with only if there is a clear and existing danger to the safety of
the crew or the vessel which was not present in this case.