Seafarer’s repatriation on compassionate grounds

As a general rule, the employment of the seafarer shall cease when the he  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 for any other reasons, including the following grounds:

1. when the seafarer signs-off and is disembarked for medical reasons or death 

2. when the seafarer signs-off due to shipwreck, ship’s sale, lay-up of ship, discontinuance of voyage or change of ship principal .

3. when the seafarer, in writing, voluntarily resigns and signs off prior to expiration of contract 

4. when the seafarer is discharged for just cause 

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. This is oftentimes known as voluntary repatriation.

The employer may, in case of compassionate grounds, assume the transportation cost of the seafarer’s replacement.

Compassionate ground, under the POEA contract,  refers to incidence of death of an immediate member of the seafarer’s family which includes his parents, spouse and children if the seafarer is married or his parents if the seafarer is single.

This ground  covers only “death and not  cases when the family member has fallen  dangerously ill, been seriously injured.

 It does not also include emergency situations which would not be expediently resolved without the seafarer’s attendance.

In case of death in the family, it is extremely important for the seafarer  to decide whether he is   still mentally capable of continuing working. Being in charge of the navigational watch or working in the Engine Room when he  is  not yet fully focused can be very dangerous, which  can cause  accidents onboard.

 A minor loss of focus or a momentary lapse of reason could prove far more disruptive to others than your leave of absence.

It is advisable for the seafarer to  communicate with his  colleagues onboard openly. Nobody understands a seafarer better than a fellow sailor. Everyone onboard could empathize with similar occurrences in their lives when they were onboard.

The seafarer, if discharged at a port abroad for any reason shall be repatriated to the Philippines via sea or air or as may otherwise be directed by the principal/employer/company.

He shall be provided with accommodation and food, allowances and medical treatment, if necessary, until he arrives at the point of hire.

 The POEA contract likewise included the right for a compassionate visit as provided in RA 8042, as amended by RA 10022.

When a seafarer is hospitalized and has been confined for at least seven (7) consecutive days, he shall be entitled to a compassionate visit by one (1) family member or a  requested individual.

The employer shall pay for the transportation cost of the family member or requested individual to the major airport closest to the place of hospitalization of the seafarer.

It is, however, the responsibility of the family member or requested individual to meet all visa and travel document requirements.

 

(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)

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

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)