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General Principles on dismissal of Filipino seafarers

General 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 as follows:

 

(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 thereto.

 

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 extracts

2.  Master’s or Incident report

3.  Affidavit/statements of crew-members/other witnesses attesting to the offenses committed by the seafarer

4.  Minutes of investigation proceedings

 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 termination. 

 

Supreme Court declares seafarer’s dismissal illegal as reason for dismissal was not duly proven

 

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.      

 
 
    News Group   :   Guidelines Date    :   2015/12/17 ساعت    :   09:23:45
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