Filipino seafarers are not probationary employees

Filipino seafarers are  not probationary employees in connection with dismissal cases.  

In  Dante de la Cruz vs. Maersk Filipinas Crewing, Inc.  (G.R. No. 172038 April 14, 2008)  the company insisted that the dismissal of the seafarer is proper as he  was then still on probationary status. This  entitled them to dismiss him in accordance with the provisions of Collective Bargaining Agreement (CBA) which allows the master to terminate the contract of one under probation by merely serving a written notice 14 days prior to the contemplated discharge.  

       The Supreme Court explained that seafarers are not covered by the term regular employment, as defined under Article 280 of the Labor Code (Coyoca v. National Labor Relations Commission. 312 Phil 1137)

 Instead, they are considered contractual employees whose rights and obligations are governed primarily by the POEA Standard Employment Contract for Filipino Seamen (POEA Standard Employment Contract), the Rules and Regulations Governing Overseas Employment, and, more importantly, by Republic Act No. 8042, otherwise known as The Migrant Workers and Overseas Filipinos Act of 1995.

 Even the POEA Standard Employment Contract itself mandates that in no case shall a contract of employment concerning seafarer exceed 12 months.

        It is an accepted maritime industry practice that the employment of seafarers is for a fixed period only. The Court acknowledges this to be for the mutual interest of both the seafarer and the employer. Seafarers cannot stay for a long and indefinite period of time at sea as limited access to shore activity during their employment has been shown to adversely affect them. Furthermore, the diversity in nationality, culture and language among the crew necessitates the limitation of the period of employment.

The Court noted that the CBA cannot override the provisions of the POEA Standard Employment Contract. The law is read into, and forms part of, contracts. And provisions in a contract are valid only if they are not contrary to law, morals, good customs, public order or public policy.

In Millares v. NLRC (434 Phil 524),   the  Court had occasion to rule on the use of the terms “permanent and probationary masters and employees” vis-à-vis contracts of enlistment of seafarers. In that case, petitioners made much of the fact that they were continually re-hired for 20 years by  the company . By such circumstances, they claimed to have acquired regular status with all the rights and benefits appurtenant thereto.  The reference to permanent and probationary masters and employees was a misnomer. It did not change the fact that the contract for employment was for a definite period of time. In using the terms “probationary” and “permanent” vis-à-vis seafarers, what was really meant was “eligible for re-hire.”

(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)

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)./

Incompetence and Inefficiency as grounds for dismissal

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.

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.  (INC SHIPMANAGEMENT, INC., v. RANULFO CAMPOREDONDO, G.R. No. 199931, September 07, 2015)

 Accordingly, the following factors should be considered in relation to  incompetence:

(1) the workload of the seafarer  should be consistent with the position agreed upon in the labor contract or with the workload of similar other seafarers; 

(2) the reasons an seafarer  is identified as incompetent should be based on his personal performance, rather than objective factors beyond his control;

 (3) methods for assessing competence must be lawful; 

(4) whether the seafarer  is deemed competent or not should be measured against specific standards, and cannot be judged by qualifications or rank; 

(5) when declaring a seafarer to be incompetent, corresponding evidence should be obtained in addition to legal and applicable standards.

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.

Violations of company policies and regulations as grounds for dismissal

 Violations of   company policies and regulations  are considered valid grounds for dismissal under the Philippine Overseas Employment Administration- Standard Employment Contract (POEA-SEC), which cover  any  of the following acts:

 a. pilferage or theft of ship’s store or cargo

 b. pilferage or theft of ships property, of crews or passengers or other persons with business at the ship.

 c. embezzlement of company   funds

 d. unauthorized disposal of   company ship’s properties for personal gain

 e. any act of dishonesty with intention to defraud the company

 f. gross negligence and failure to observe proper storage and  cargo handling procedures

        resulting in delay of ships     and/or damage to cargoes

 g. failure to observe and comply         with regulation and non- baggage shipment and        acceptance of parcels on board

 h.  failure to observe        regulations on expiration of        shore liberty

 i.  being left behind by ship in        foreign port without justifiable        reason

 j. disorderly conduct and/or        disrespect towards        passengers or other persons

 k. for immorality so as to cast        aspersion on the good name of        the ship and company

 l. inflicting harm or injury to others

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) 

Voluntary Repatriation

The  employment of Filipino seafarers  is governed by the Standard Employment Contract (SEC) they sign  and  duly approved by the Philippine Overseas Employment Administration (POEA) every time they are rehired and their employment is terminated upon its completion. 

As a general rule, the employment of the seafarer shall cease when the seafarer completes his period of contractual service aboard the ship, signs-off from the ship and arrives at the point of hire. 

Similarly, a seafarer’s employment contract is terminated even before the contract expires as soon as he arrives at the point of hire, one of the reasons included voluntary repatriation.

A seafarer who requests for early termination of his contract shall be liable for his repatriation cost as well as the transportation cost of his replacement. The employer may, in case of compassionate grounds, assume the transportation cost of the seafarer’s replacement.

Resignation is defined as the voluntary act of an employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service and he has no other choice but to disassociate himself from his employment. (Valdez v. NLRC, 286 SCRA 87, 94.)

In cases of  illegal dismissal, companies  usually raise as an issue the request for voluntary repatriation.

The Supreme Court ruled in a case  that it is highly illogical for an employee to voluntarily request for repatriation and then file a suit for illegal dismissal. As voluntary repatriation is synonymous to resignation, it is proper to conclude that repatriation is inconsistent with the filing of a complaint for illegal dismissal. (Oriental Shipmgt Co., Inc. v. Court of Appeals, 480 SCRA 100, 110 )

The Court likewise noted that the seafarers did  voluntarily pre-terminated their contracts akin to resignation and no illegal dismissal.  It said that the telex message is a biased and self-serving document that does not satisfy the requirement of substantial evidence. In the absence of a written resignation, it is safe to presume that the employer terminated the seafarers.  As  the dismissal was illegal, their repatriation expenses were for the account of company  and could not be offset with the home allotment pay. (SKIPPERS  United Inc. vs. Nathaniel Doza et al G.R. No. 175558, February 8, 2012)

The entries in the seaman's book   cannot, by any stretch of the imagination, be considered as substantial evidence to prove voluntary repatriation and lawful dismissal. The Supreme Court  cannot rule otherwise for to do so may prove dangerous as all employers of seafarers will now be complacent in perpetrating indiscriminate acts of termination with the seaman's book as their shield against culpability  (Barros vs. TransOriient Maritime Services,  G.R. No. 123901 September 22, 1999)

The same defense is likewise normally  raised in cases of  claims for disability or death compensation.

A company’s  delay in heeding the a seafarer’s requests for his replacement and immediate repatriation cannot be denied. Its concern for convenience hardly overrides the seafarer’s urgent need for medical attention. Given these circumstances, it was not abandonment when the seafarer signed-off and disembarked for medical reasons without waiting for a reliever. (OSM Shipping Inc., , vs. Antonia dela Cruz G.R. No. 159146. January 28, 2005)

Seafarer was not repatriated for health reasons as he executed a resignation letter.  His allegation that he was forced to execute such letter deserved no merit as “bare allegations of threat or force do not constitute substantial evidence to support a forced resignation”.  Also, seafarer’s record showed that he had also resigned due to domestic reasons during his last contract.  The seafarer is thus charged with awareness of the consequences of pre-termination, this being his second time to so request (Virjen Shipping Corporation, vs. Jesus B. Barraquio; G.R. No. 178127; April 16, 2009)

Drunkenness as ground for dismissal

Before a seafarer can be dismissed and discharged from the vessel, it is required that he be given a written notice regarding the charges against him and that he be afforded a formal investigation where he could defend himself personally.. 

It is the duty of all seafarers to conduct themselves in the most professional, responsible and ethical manner in the performance of their duties and fulfill their  obligations under the contract.The basic rule on land applies to ships as well. Although  alcohol has long been part of the life and lore of seafarers, whether you work in the engine room or keep watch at the bridge, never carry out your duties under the influence of alcohol. Working in drunken condition can even lead to accidents and emergencies.

Section 33 of the Philippine Overseas Employment Administration- Standard Employment Contract (POEA-SEC) enumerates  twenty one (21) offenses which are considered valid grounds for dismissal, which include drunkenness under the following situations:. 

 a. Drunk while on duty.

b. Creating trouble on board due to intoxication.

 c. Failure to perform assigned jobs due to intoxication.

Another offense is the  failure to observe the drug and alcohol policy of the company. 

         The 2010 Manila Amendments to the International Convention on Standards of Training, Certification and Watchkeeping, 1978 (STCW) included new requirements aimed at curbing alcohol and drug abuse. Section A-VIII/1 of the STCW Code set down a limit of 0.05% blood alcohol content for masters, officers and other seafarers while performing designated safety, security and marine environmental duties. 

      There are good reasons for restricting alcohol on board. Research shows that even small quantities can impair judgement, leading to increased risk-taking, concentration problems, lower performance of navigational tasks such as tracking and difficulty responding to unexpected or emergency situations. It also greatly reduces the chances of survival in the water.

          When a seafarer commits such act(s), 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  the penalty of suspension or permanent disqualification from participation in the overseas employment program  based on the frequency of the commission of the  offense: 

         1st Offense — Suspension of  one year to two years

         2nd Offense — Suspension of two years and one day to Three years

         3rd Offense — Permanent Disqualification 

With regards to failure to observe the drug and alcohol policy of the company, the POEA may impose a   penalty of suspension from one year to Three years)  for the first offense or permanent Disqualification for the second offense.

The Seafarer's Identification and Registration Book (SIRB)  under MARINA rules may likewise  be suspended after due process due to Intemperate habits such as drunkenness tending to cause immediate loss or destruction or serious damage to the vessel or tending to endanger the life of any person organic to or passenger of such vessel.

Under normal circumstances, a glass (or some glasses)   of beer is not so intoxicating as to diminish a man's rational capacity. It must be  proven at all that such amount of alcohol blurred his reason [1] A company's misleading argument should be disregarded in the absence of proof that the intake of alcoholic drinks was of such quantity as to blur the person's reason and deprive him of a certain degree of control[2]

Mere intoxication is not negligence, nor does the mere fact of intoxication establish a want of ordinary care. It is but a circumstance to be considered with the other evidence tending to prove negligence. It is the general rule that it is immaterial whether a man is drunk or sober if no want of ordinary care or prudence can be imputed to him, and no greater degree of care is required to be exercised by an intoxicated man for his own protection than by a sober one. If one's conduct is characterized by a proper degree of care and prudence, it is immaterial whether he is drunk or sober.[3].

The issue  of drunkenness must be supported by clear and convincing proof to the effect that such intoxication or drunkenness rendered the employee incapable of doing his work so that he could not be said to be engaged in his employment. The incident must be shown to have arisen out of his drunken condition and not out of the work. The burden of establishing intoxication and that it caused the incident is on the employer.[4]

It is incumbent on the company  to prove their claim of intoxication as ruled by the Supreme Court:

x x x it has been held that even if it could be shown that a person drank intoxicating liquor it is incumbent upon the person invoking drunkenness as a defense  to show that said person was extremely drunk.  This is so because a person may take as much as several bottles of beer or several glasses of hard liquor and still remain sober and unaffected by the alcoholic drink. Thus, intoxication which does not incapacitate the employee from following his occupation is not sufficient to defeat the recovery of compensation, although intoxication may be a contributory cause to his injury. It must be shown that the intoxication was the proximate cause of death or injury and the burden of proof lies on him who raises drunkenness as a defense[5] . While it may be admitted that the deceased drank intoxicating liquor at the dance party, respondents ECC and GSIS have not established that the state of drunkenness of the deceased is the proximate cause of his death. [6]

        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.

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[1] Wright v. Manila Railroad Co., 28 Phil. 116

[2] Compania Maritima vs. Vda de Hio, 107 Phil 873

[3] Pp. vs. Pinca Gr. 129256 November 17, 1999

[4] People v. Boduso, 60 SCRA 60

[5] Vda. de Yohanan vs. Balena and WCC, 78 SCRA 348

[6] Juanita Nitura vs. ECC and GSIS, G.R. No. 89217, September 4, 1991  

Insubordination as a ground for dismissal

Insubordination is one  actuation identified in the   Philippine Overseas Employment Administration- Standard Employment Contract (POEA-SEC) as a  ground for  dismissal of Filpino Seafarers. It consists of any of the following: 
a.  any act of disobedience to   lawful orders of a superior officer

b.  attempting to assault a superior officer        

c.  assaulting a superior   officer/other persons on  business with the ship without          the use of deadly weapon

d. assaulting a superior officer/other persons on  business with the ship with    the use of deadly weapon

e. behaving with disrespect towards a superior officer

f.  insulting a superior officer by     words or deed

g. inciting another to commit    insubordination

Before a seafarer can be dismissed and discharged from the vessel, it is required that he be given a written notice regarding the charges against him and that he be afforded a formal investigation where he could defend himself personally. Section 33 of the POEA SEC   enumerates  twenty one (21) offenses which are considered valid grounds for dismissal, including insubordination

For willful disobedience of the employer’s lawful orders can be a just cause for dismissal of an employee, the requisites are : (a)  the employee’s assailed conduct must have been willful or intentional, the willfulness being characterized by a “wrongful and perverse attitude” ; and (b)  the order violated must be  reasonable,  lawful, made  known to the employee and pertains to the duties which the employee has been engaged to discharge (Stolt-Nielsen Marine Services (Phils.) Inc. vs. NLRC 258 SCRA 643). 

Some incidents, which in the normal course of events may  occur one way or another, are  not synonymous to  “insubordination” and “willful disobedience” that are punishable by dismissal    as normally erroneously imputed by the  companies  to seafarers. 

The Supreme Court held in the case Gold City Integrated Port Services, Inc. vs. NLRC (189 SCRA 811) that  “not every case of insubordination or willful disobedience by an employee of a lawful work-connected order of the employer or its representative is reasonably penalized with dismissal. There must be reasonable proportionality between, on the one hand, the willful disobedience by the employee and , on the other hand,  the penalty imposed therefor”. For misconduct to be considered serious, it must be of such grave and aggravated character and not merely trivial or unimportant (Austria vs. NLRC, 312 SCRA 410) .

The Court likewise stressed in Hongkong Shanghai Banking Corporation vs. NLRC (260 SCRA 49)  that  “a grave injustice is committed in the name of justice when the penalty imposed is grossly disproportionate to the wrong committed.  To be lawful, the cause for termination must be a serious and grave malfeasance to justify the deprivation of a means of livelihood.” There is no question that the employer has the inherent right to discipline, including that of dismissing its employees for just causes.  This right is, however, subject to reasonable regulation by the State in the exercise of its police power. The finding of the NLRC that an employee violated company rules and regulations is subject to scrutiny by the Court to determine if the dismissal is justified and, if so, whether the penalty imposed is commensurate to the gravity of the offense (Associated Labor Unions-TUCP et al vs. NLRC, 302 SCRA 708). 

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). 

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.

Dismissal: Absence without leave (AWOL) and unauthorized Shore Leaves

Shore leave is an ancient and cherished seafarers' right that should not be denied except for compelling reasons. 

Shore leave is defined as the period during which a sailor is allowed to take a leave from the ship while the vessel he is working on is docked in the port. The period of the leave can vary from a couple of hours to a few days depending on the time the ship is scheduled to be on the port.

Shore leave is one of the basic rights of every seafarer. It not only gives seafarers the much needed break but also increase their work efficiency.The ITF pointed out that Shore leave is not a luxury. It is essential for seafarers who spend many weeks cooped up at their workplace, with only work mates and managers for company.. Confined spaces and monotonous routine leads to acute boredom on ships. Living constantly under such circumstances results in stress, depression, and home sickness.Those who work at sea need to get on shore to access phones and the internet to contact family, to seek welfare, social, medical or psychological support if needed, and to have a break from the work environment. It is important to dedicate a considerable amount of time for recreational activities of the crew while the ship is on the port.

 The seafarer’s right to shore leaves has been legally recognized. International Maritime regulations state that every seafarer is entitled to a shore leave, as granted by the master of the ship. In fact, MLC2006 mandates that seafarers shall be granted shore leave to benefit their health and well-being and with the operational requirements of their positions. Under the POEA-SEC, the seafarer shall be allowed shore leave when practicable, upon the consent of the master or his deputy, taking into consideration the operations and safety of the ship.. A seafarer can be provided a shore leave as per the discretion of the ship’s master.. However, the decision regarding the shore leave, as made by the ship’s master should only be based on orders from the port authority.

    A shore leave with the proper permission is essential in determining compensation in the event something  bad happens to the seafarer. The employment relationship with the employer  does  not stop but continues to be in force even when the seafarer is  on shore leave (Susana Sy vs. PTC,  G.R. No. 191740, February 11, 2013) 

Nevertheless,  leaving the ship without  permission from responsible officers during working hours can result to disciplinary measures. Before a seafarer can be dismissed and discharged from the vessel, it is required that he be given a written notice regarding the charges against him and that he be afforded a formal investigation where he could defend himself personally. Section 33 of the Philippine Overseas Employment Administration- Standard Employment Contract (POEA-SEC) enumerates  twenty one (21) offenses which are considered valid grounds for dismissal.  

One of the grounds of dismissal of Seafarer identified is  .Absence without leave (AWOL) which is further classified into the following acts:

a. abandoning post or duty   without being properly relieved

b.  leaving the ship without  permission from responsible officers during working hours

            c. Entrusting to others assigned duties without authority of department head

            d. Leaving the ship without permission

       "AWOL" in general is being  absent from their post without a valid pass, liberty or leave. In contrast,  desertion is not measured by time away from the unit, but rather:

• by leaving or remaining absent from their unit, organization, or place of duty, where there has been a determined intent to not return;
• if that intent is determined to be to avoid hazardous duty or shirk contractual obligation;

    When a seafarer commits such act of AWOL , 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 gravity of the offense and the frequency of the violation(s).