Mutiny as ground for dismissal

IN SOME instances, Filipino seafarers who aggressively assert their rights are wrongfully accused of mutiny, leading to the early termination of their contract by dismissal.

Mutiny is conspiracy of overt act of defiance, oppose or attack upon ship authority by two or more seafarers subject to such authority. The term is occasionally used to describe nonmilitary instances of defiance or attack — such as mutiny on board a merchant ship.

Mutiny comes from an old verb, “mutine”, which means “revolt”, and a mutiny is still like a revolt. But mutiny should be distinguished from revolt or rebellion, which involves a more widespread defiance and which generally have a political objective.

Mutiny is regarded as a most serious offense, especially aboard ships at sea. Because the safety of the ship was thought to depend upon the submission of all persons on board to the will of the captain, wide disciplinary powers are given to the commanding officer.

Seafarers are not usually adamant in standing for their rights for fear of retaliation from the company or its officers on board, including dismissal based on fabricated grounds. Their concerted action to question in some cases are viewed as insubordination, desertion, mutiny or attempt to desert the vessel or refusal to sail with the vessel

The Maritime Labor Convention of 2006 (MLC 2006) recognizes the seafarers’ rights to decent conditions of work on almost every aspect of their working and living conditions including, among others, hours of work or rest, payment of wages, paid annual leave, repatriation at the end of contract, onboard medical care, accommodation, food and catering, health and safety protection and accident prevention.

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

In a case, the Supreme Court downplayed the company’s argument of “mutiny” as ground for dismissal since there is no record in the logbook or journal of the ship to indicate that the Filipino seafarers, who were terminated from their employment, threatened to cease and desist from working and to abandon their vessel as a result of the misunderstanding that happened between the Ship Master and a Filipino crew member. (NFD vs. Ilagan etc. G.R. No. 165389, October 17, 2008)

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 Philippine Overseas Employment Administration (POEA) that, 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 (including dismissal from service) 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.

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 months for every year of the unexpired term.

(Atty. Dennis Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786)./

Leukemia as an occupational illness

For a disability claim to prosper, a seafarer suffering from luekemia  only needs to show that his work and contracted illness have a reasonable linkage that must lead a rational mind to conclude that the seafarer's  occupation may have contributed or aggravated the disease.

Seafarers are exposed to occupational risk factors, as well as environmental risk factors, as part of their normal everyday activities since they spend a large part of their lives at sea. Most seafarers live and work under extremely hazardous conditions that can cause serious short-term and long-term damage to their health. In some cases, they are exposed to conditions that can even be fatal.

The seafarer is required to prove that: (1) he suffered an illness; (2) he suffered this illness during the term of his employment contract; (3) he complied with the procedures prescribed under Section 20-B; (4) his illness is one of the enumerated occupational disease or that his illness or injury is otherwise work-related; and (5) he complied with the four conditions enumerated under Section 32-A for an occupational disease or a disputably-presumed work-related disease to be compensable.   

Under POEA Contract,  “acute myeloid leukemia” and chronic lymphocytic leukemia. are  listed as  occupational diseases  if these are  secondary to prolonged benzene exposure.  Benzene is a widely used chemical and is mainly used as a "starting material in making other chemicals, including plastics, lubricants, rubbers, dyes, detergents, drugs, and pesticides."

Leukemia is cancer of the body's blood-forming tissues, including the bone marrow and the lymphatic system.  The cancerous cells in the bone marrow spill out into the bloodstream. 

In granting the full permanent disability benefits, the Court noted in the recent case of Grieg Philippines vs. Michael John Gonzalez (July 26, 2017, G.R. No. 228296) that  the  functions as an Ordinary Seaman aboard the vessel ,  among others,  included removing rust accumulations and refinishing affected areas of the ship with chemicals and paint to retard the oxidation process. This meant that he was frequently exposed to harmful chemicals and cleaning aids which may have contained benzene. Furthermore, the vessel  transported chemicals, which could have also contributed to the seafarer's leukemia.

The company miserably failed to dispute the medical finding that the seafarer's leukemia is not hereditary, as his tests reveal no apparent chromosome abnormality. This undeniable circumstance,  plus the fact that he was declared fit for sea duty prior to boarding the vessel for two (2) consecutive employment contracts with the same company, all the more bolster the conclusion that the conditions set forth in Section 32-A regarding the work-relatedness of his leukemia are present in this case.

Settled is the rule that for illness to be compensable, it is not necessary that the nature of the employment be the sole and only reason for the illness suffered by the seafarer. It is sufficient that there is a reasonable linkage between the disease suffered by the employee and his work to lead a rational mind to conclude that his work may have contributed to the establishment or, at the very least, aggravation of any pre-existing condition he might have had.

Most court cases arise due to the fact that the only types of cancer on the occupational illnesses list are (a)  cancer of the epithelial lining of the bladder (papilloma of the bladder), (b) cancer, epithellomatous or ulceration of the skin or of the corneal surface of the eye due to tar, pitch, bitumen, mineral oil or paraffin, or compound product. (c) Acute myeloid leukemia and (d) chronic lymphocytic leukemia.  In reality, many seafarers suffer from other type of cancers like that affects the lungs, kidney, liver, pancreas, nasopharyngeal and many more that  are  not one of the occupational diseases listed in the POEA Contract. An illness not otherwise listed in Section 32-A is disputably presumed work-related.This presumption works in favor of a seafarer, because it then becomes incumbent upon the employer  to dispute or overturn this presumption

For your eyes only

Protection of eyes is of paramount importance while working on ships. Shipboard jobs such as welding, chipping, painting, and working with hazardous material such as oil and  chemicals as well as exposure to the sun’s UV rays  pose great danger to the seafarer’s  eyes.   If an accident occurs, and an eye is exposed to harmful materials or substances, it will only take seconds for severe injury to ensue.

A seafarer’s entitlement for medical benefits due to an eye condition is dependent on basically two things:  (a)  he suffered this illness during the term of his employment contract and (b)   his illness  is one of the listed occupational disease or that his illness or injury is  work-related.

Aside from blindness, the POEA contract identified as work-related illness the following: (a)  Cancer of the corneal surface of the eye due to tar, pitch, bitumen, mineral oil or paraffin, or compound product or residue of these substances, (b) Vitreal hemorrhage and retinal detachment caused by the strain upon lifting of heavy loads and (c) Cataract and pterygium caused by prolonged exposure to UV light or welding, wind abrasion and sea breeze.

A seafarer  who is diagnosed of color blindness, more often than not will not be given medical attention. Companies does not consider such condition as work-related as they argue that some cases  are  genetic,  a result of other diseases such as diabetes and multiple sclerosis or acquired over time due to the aging process and medication.

The POEA contract states that a seafarer who suffered  blindness or total and permanent loss of vision of both eyes may be assessed with a disability grading of Grade 1, or  be declared total permanently disabled.

Companies usually argue  that under  the POEA contract, only those seafarers that are classified under Grade 1 disabilities are considered to have suffered total and permanent disability and therefore entitled to US$60,000.00 as disability benefits.

However, the POEA contract is not really reflective of the benefits that should be given to the seafarer based on the grading system. There are medical conditions that are classified as partial disability (between Grade 2 to 14) but in essence should have been considered as total permanent (Grade 1). 

A seafarer who is diagnosed to have total blindness of one eye and fifty percent (50%) loss of vision of the other eye  will be assessed as Grade 5 only. On the other hand, Grade 7 assessment will be given to  one who  lost   one eye or total blindness of one eye. Grade 12 will be issued   for other  illnesses of one of the eyes ( Lagopthalmo,  Ectropion,  Ephiphora, and Ptosis) 

In some instances, the defective eyes condition is detected only during the Pre-Employment Medical Examination (PEME). The seafarer may not receive any medical benefits since there is no contract yet to speak of. Such condition must be documented during the effectivity of the contract.

In reality, seafarers suffering with such eye conditions will never be employed due to visual impairments. Misperceptions and failures to interpret visual information correctly during duties are common contributors to maritime incidents. 

The Supreme Court's consistently ruled that in disability compensation, "it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one's earning capacity."  Permanent total disability means disablement of an employee to earn wages in the same kind of work, or work of similar nature that he was trained for or accustomed to perform, or any kind of work which a person of his mentality and attainment could do. Disability need not render the seafarer absolutely helpless or feeble to be compensable; it is enough that it incapacitates to perform his customary work.

Any seafarer who suffered the above medical conditions is in essence should be declared total permanent disabled, and not merely partial temporary.

Companies cannot deny the fact that a seafarer suffering from any of these  medical conditions will  be considered  more of a liability than an asset if he  is allowed to go on board the vessel. He would no longer be able to perform strenuous activities such as the rigorous duties of a seafarer.

(Atty. Gorecho heads the seafarers’ division of the  Sapalo Velez Bundang Bulilan  law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786)

sickness allowance

A medically repatriated   seafarer would normally result in depriving him of compensation income due to his inability to perform his sea duties.

Away from his family and working on board vessels sailing non-stop for weeks or months the world’s oceans, the Filipino seafarer is physically, mentally and emotionally stressed. Constantly exposed to fluctuating temperatures caused by variant weather changes of extreme hot and cold as the ships cross ocean boundaries, not to mention harsh weather conditions, the risks of his getting killed, injured or ill are high.

The employer  is liable for  three separate and distinct  kinds of liabilities under the  Philippine Overseas Employment Administration Standard Employment Contract (POEA-SEC) for any work-related illness or injury that the seafarer may have suffered during the term of the contract. Employers must: (1) provide   medical treatment to  the seafarer at their cost; (b) pay the seafarer sickness allowance equivalent to his basic wage  and (2) compensate the seafarer for his permanent total or partial disability as finally determined by the company-designated physician.

The employer is liable for the full wage, while the seafarer is still on board, and the cost of medical treatment in foreign ports. The employer also has  to bear the cost of repatriation and treatment, and the seafarer is entitled to an additional sickness allowance.

To address the contingency of his  repatriation  to undergo treatment,   the POEA contract  imposes on the employer the obligation to provide the seafarer with sickness allowance that is equivalent to his basic wage until the seafarer is declared fit to work or the degree of his permanent disability is determined by the company-designated physician. The period for the declaration should be made within the period of 120 days or 240 days, as the case may be. The number of days under medication is a significant element in determining the disability benefits of  a seafarer who was a medically repatriated.  

The amount of sickness allowance is the basic wage of the seafarer, counting from the day he signed off from the ship until the time he is declared fit to work or disability grading assessed by the company-designated physician.

The company is liable for the sickness allowance at the time when he is under treatment and waiting for the company-designated doctor to decide if the injury or illness is work-related.

 If the seafarer is declared fit for duty after the medical treatment, the sickness allowance is the only benefit he could get. If the seafarer is further assessed disability  grading due to irreperable  physical damage, he could receive the said sickness allowance plus  the disability benefits  based  on the  grading system.

 Atty. Gorecho heads the seafarers’ division of the  Sapalo Velez Bundang Bulilan  law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786)