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.

Assumption of liability not a defense

The  original manning agency cannot  claim that it will  be exempted from liability because it is no longer the manning agency responsible to the dismissed seafarers since  the new manning agencies  had executed Affidavits of Assumption of Responsibility.

In Section 1 of Rule II of the POEA Rules and Regulations, it states that:

Section 1. Requirements for Issuance of License. Every applicant for license to operate a private employment agency or manning agency shall submit a written application together with the following requirements:

x x x

             f. A verified undertaking stating that the applicant:

x x x

(3) Shall assume joint and solidary liability with the employer for all claims and liabilities which may arise in connection with the implementation of the contract; including but not limited to payment of wages, death and disability compensation and repatriation.

Accordingly, despite the execution of the Affidavits of Assumption of Responsibility by other manning agencies, the original manning agency  cannot exempt itself from all the claims and liabilities arising from the implementation of the contract executed between the said original manning agency  and the seafarers. It is very clear from the above-cited provisions of the Rules and Regulations of the POEA that the manning agency shall assume joint and solidary liability with the employer.Joint and solidary liability is meant to assure aggrieved workers of immediate and sufficient payment of what is due them. The reason for this ruling was given by this Court in the 1988 case of Catan v. National Labor Relations Commission ( 160 SCRA 691, 695)  which is reproduced in part below:

This must be so, because the obligations covenanted in the recruitment [manning] agreement entered into by and between the local agent and its foreign principal are not coterminus with the term of such agreement so that if either or both of the parties decide to end the agreement, the responsibilities of such parties towards the contracted employees under the agreement do not at all end, but the same extends up to and until the expiration of the employment contracts of the employees recruited and employed pursuant to the said recruitment agreement. Otherwise, this will render nugatory the very purpose for which the law governing the employment of workers for foreign jobs abroad was enacted.

Also, according to Section 10, paragraph 2 of Republic Act No. 8042, the agency which deployed the employees whose employment contract were adjudged illegally terminated, shall be jointly and solidarily liable with the principal for the money claims awarded to the aforesaid employees. 

The Affidavits of Assumption of Responsibility, though valid as between  the original manning agency and the other two manning agencies, are not enforceable as against the respondents because the latter were not parties to those agreements. The provisions of the POEA Rules and Regulations are clear enough that the manning agreement extends up to and until the expiration of the employment contracts of the employees recruited and employed pursuant to the said recruitment agreement. Hence, despite the execution of the aforementioned affidavits,  the original manning agency  cannot exempt itself from the liabilities and responsibilities towards the seafarers.

( SKIPPERS UNITED PACIFIC, INC., and J.P. SAMARTZSISMARITIME ENTERPRISES CO., S.A., vs. JERRY MAGUAD and PORFERIO CEUDADANO,  G.R. No. 166363,  August 15, 2006) 

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) 

Gambling as a ground for dismissal

Gambling is 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), which covers any  of the following acts: 

a. gambling which results in fighting or any incident as to upset the harmonious relationship on board the ship

b. any other form of gambling which is not purely recreational.  

Filipino  seafarers  have a penchant for gambling even at a very early age. They have the tendency to play or gamble anytime and anywhere. Family celebrations and funeral wakes are never complete without mahjong,  poker, bingo sessions. pusoy, pekwa, etc. This fondness for gambling is carried over to sea by Filipino seafarers.

Gambling can have relaxational and recreational purposes for Filipino seafarers if properly regulated and managed. They should gamble only with their excess money; thus the bets should not be large. The officers should fix and delimit the site or area and time wherein the gambling  games may be played. Troubles arising through gambling must be prevented by the officers by their proper supervision of it. 

Recreational gambling or social gambling refers to someone who gambles for fun. It does not result in any negative consequences for the person in terms of time and money spent. They play occasionally, taking account of their financial limits and knowing how to end the game in a controlled way. They accept that they might lose money and do not play on in order to recover their losses. 

Not all gambling can  lead to one's termination. The Court  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). 

When a seafarer commits such acts of unwanted  gambling , 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

Insubordination as a ground for dismissal

Insubordination is 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), which covers any  of the following acts: 

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

Insubordination, as a just cause for the dismissal of a seafarer, necessitates the concurrence of at least two requisites: (1) the seafarer's assailed conduct must have been willful, that is, characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to the seafarer, and must pertain to the duties which he had been engaged to discharge. (MAERSK-FILIPINAS CREWING, INC., vs. TORIBIO C. A VESTRUZ,, G.R. No. 207010 , February 18, 2015)

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. 

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 (Gold City Integrated Port Services, Inc. vs. NLRC (189 SCRA 811)”. 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). 

When a seafarer commits such act, 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

Telefax transmission or emails purportedly executed and signed by a person on board the vessel, like the captain or any officer,  is insufficient evidence to prove the commission of the acts constituting the grounds for the dismissal of  seafarers, being uncorroborated evidence. (Pacific Maritime Services, Inc. v. Ranay, 341 Phil. 716 (1997).

Sleeping on post while on duty as ground for dismissal

Seafaring is a job with  an inherently stressful environment.  As the technical and specialized nature of the maritime  industry requires constant alertness and intense concentration from its workers,  sleeping on post while on duty can be detrimental, which  may even lead to a maritime disaster.

The Supreme Court ruled that sleeping on the job as a valid ground for dismissal for jobs whose duty necessitates that they be awake and watchful at all times inasmuch as their functions  is "to protect the company from pilferage or loss ( Luzon Stevedoring Corp. v. Court of Industrial Relations (15 SCRA 660, 674(1965) Sleeping on the job  reflect a regrettable lack of concern for the employer. (Tomada vs. RFM Corp. G.R. No. 163270, September 11, 2009)  or an evidence of lack of cooperation and  lack of interest in the job. (Electroluck Asia vs. Meris et al G.R. No. 147031. July 27, 2004)

Sleeping on post while on duty  is 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)

When a seafarer commits such act, 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).

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. 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.

The effects of fatigue are particularly dangerous in the shipping industry as the technical and specialized nature of this industry requires constant alertness and intense concentration from its workers (International Maritime Organization, 2001). The human element, in particular fatigue, is widely perceived as a contributing factor in marine casualties

When working at sea, sleep disruption is inevitable due to the 24-hour nature of the job. Seafarers usually complain about the fact that they lack proper sleep which makes them feel tired, more stressful and unable to concentrate. Not getting enough sleep leads to (a) feeling sleepier (b) difficulty staying alert (c) getting irritable (d) slower reaction (e) poorer co-ordination (f) slower thinking (g) getting fixated on part of a problem and losing the big picture (h) less creative problem-solving (i) lower standard of performance becoming acceptable and (j) performance becoming increasingly inconsistent.

To address this issue of proper rest hours, the   Maritime Labor Convention 2006 (MLC2006)   of the International Labor Organization (ILO) states that, number of ship working hours should be:

·      Eight hours a day, under normal circumstances, with one day as rest day

·      A maximum of 14 hours in any 24 hour period

·      A maximum of 72 hours in any seven day period

·      Provided with a minimum of 10 hours of rest in any 24 hours period

 The minimum hours of rest, as per the ILO maritime convention should be:

·      A minimum of ten hours in any 24 hour period

·      A minimum of 77 hours in any seven day period

The hours of rest can be divided in a maximum of two periods, one of which should be at least six hours in length. Two such consecutive periods should not be separated by more than 14 hours. A seafarer must be granted a compensatory rest period in case he/she is required to be on call during rest hours.

Operations like lifeboat drills, fire fighting drills, and drills prescribed by national laws and regulations should be conducted in a manner to ensure minimum disruption of rest period. However, an exception can be made to all the above mentioned clauses in case the master of the ship deems it necessary to require services of a seafarer in lieu of maintain safety of ship, especially on emergency basis.

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)