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

Termination of the POEA contract

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 for any of the following reasons:

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 

The POEA contract further explains the rules on the termination of the contract due to reasons Nos. 2 to 4. :

DUE TO 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.

 DUE TO JUST CAUSE: 

When the seafarer is discharged for any just cause, the employer shall have the right to recover the costs of his replacement and repatriation from the seafarer’s wages and other earnings. Section 33 of the contract enumerates  twenty one (21) offenses which are considered valid grounds for dismissal. .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).

DUE TO SHIPWRECK AND SHIP’S FOUNDERING 

Where the ship is wrecked necessitating the termination of employment before the date indicated in the contract, the seafarer shall be entitled to earned wages, medical examination at employer’s expense to determine his fitness to work, repatriation at employer’s cost and one month basic wage as termination pay. In case of termination of employment of the seafarer before the expiration of the term of his contract due to shipwreck, actual or constructive total loss or foundering of the ship, the seafarer shall be entitled to earned wages, medical examination at employer’s expense to determine his fitness to work, repatriation at employer’s cost and one month basic wage as termination pay. 

DUE TO SALE OF SHIP, LAY-UP OR DISCONTINUANCE OF VOYAGE 

Where the ship is sold, laid up, or the voyage is discontinued necessitating the termination of employment before the date indicated in the Contract, the seafarer shall be entitled to earned wages, repatriation at employer’s cost and one (1) month basic wage as termination pay, unless arrangements have been made for the seafarer to join another ship belonging to the same principal to complete his contract in which case the seafarer shall be entitled to basic wages until the date of joining the other ship. 

DUE  TO  CHANGE OF PRINCIPAL 

A. Where there is a change of Principal of the ship necessitating the pre-termination of employment of the seafarer; the seafarer should be entitled to earned wages and repatriation at employer’s expense. He shall also be entitled to one (1) month basic pay as termination pay. 

B. In case arrangements have been made for the seafarer to directly join another ship of the same Principal to complete his contract, he shall only be entitled to basic wage from the date of his disembarkation from his former ship until the date of his joining the new ship. 

DUE TO UNSEAWORTHINESS 

A. If the ship is declared unseaworthy by a classification society, port state or flag state, the seafarer shall not be forced to sail with the ship. 

B. If the ship’s unseaworthiness necessitates the termination of employment before the date indicated in the Contract, the seafarer shall be entitled to earned wages, repatriation at cost to the employer and termination pay equivalent to one (1) month basic wage. 

 DUE TO REGULATION ¼, CONTROL PROCEDURES OF THE 1978 STCW CONVENTION, AS AMENDED If the seafarer is terminated and/or repatriated as a result of port state control procedures/actions in compliance with Regulation ¼ of the 1978 STCW Convention, as amended, his termination shall be considered valid. However, he shall be entitled to repatriation and earned wages and benefits only.