675 (2010), this Court affirmed the award of P50,000.00 financial assistance. 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. Gorecho is a legal commentator on maritime issues on print, radio and TV. Procedural due process Just and valid cause. As for the post-employment medical examination requirement, both the Petitioner and the Private Respondents failed to present supporting evidence of their contrasting claims. ( GR 184318. This is because a workers job is considered as property and the Constitution commands that no person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. His manning agent later found out that he boarded another vessel thru another manning agent on November 29, 2004. Labor cases involving Filipino seafarers 2014-05-20 - . An unsatisfactory rating can be a just cause for dismissal only if it amounts to gross and habitual neglect of duties. The definition of "illegal use of drugs" applies equally to the ADA's employment provisions. Thus, seafarer should be paid his remaining nine months' salary and not just three months as ruled by the Court of Appeals. Medical repatriation as exception to Section 20 of 2000 POEA-SEC The system is primarily managed by the Colorado Department of Transportation (CDOT). The seafarer must first approach the head of the department in which he or she is assigned to explain the grievance. 24 Sambalilo, et al. In instances where the illness manifests itself or is discovered after the term of the seafarer's contract, the illness may either be (1) an occupational illness listed under Section 32-A of the POEA-SEC, in which case, it is categorized as a work-related illness if it complies with the conditions stated in Section 32-A, or (2) an illness not listed as an occupational illness under Section 32-A but is reasonably linked to the work of the seafarer. Lloyd alleged that he was repatriated after suffering flashbacks of the hostage incident and experiencing mental breakdown. It is thus important to gather and preserve the evidence immediately after the termination. You need JavaScript enabled to view it. 165389, october 17, 2008. the court said, It requires observance of the two-notice rule in addition to investigation and hearing. In consonance with Section 10 of Republic Act 8042, as amended by Republic Act 10022, an illegally dismissed Filipino seafarer salaries is entitled to thefull reimbursement of his placement fee and the deductions made with interest at twelve percent (12 percent) per annum, plus his salaries for the unexpired portion of his employment contract. Your email address will not be published. 381 (2018). The purpose of this committee is to give guidance and direction to the Colorado Department of Transportation on the development of the state transportation system, and to provide legislative oversight of and input into such Senate Bill 22-201 created the 8-member Legislative Interim Committee on Judicial Discipline and directed the committee to work with judges, lawyers, members of the public, and other interested parties, to: Colorado's transportation system consists of the state highway system, county and municipal roads, mass transit, airports, railroads, and bicycle and pedestrian routes. Date, time and place for a formal investigation of the charges against the seafarer concerned. 12 Feb 2014 ), the Supreme Court ruled that a seaman is a contractual employee and there is no illegal dismissal when his contract with the ship company has already expired. Dennis R. Gorecho is a graduate of UP College of Law (1998) and is currently a junior partner of Sapalo Velez Bundang Bulilan (SVBB) law offices. Atty. 28 C.F. However, if in the circumstances such authentication is uneconomical, impractical or impossible, a copy of the official entry in the ship's logbook may suffice. The Decision dated August 29, 2014 of the National Labor Relations Commission is REINSTATED with MODIFICATION in that Maryville Manila, Inc. is ordered to pay Lloyd Espinosa the amount of P100,000.00 as financial assistance. no. There is no indication, during the intervening period of eight months from repatriation to deployment, that Lloyd experienced any sign of the alleged diseases. No. 627, 633 (2011). Seafarers face several barriers to obtaining shore leave, mostly-according to results of SCIs Survey-involving the constraints of red tape. While a United States Coast Guard October 2009 directive to Captains of the Port has improved seafarers ability to board and depart the vessel through the facility in a timely manner at no cost to the individual, other bureaucratic restrictions limit seafarers-even where seafarer welfare and labor organizations operate-from leaving vessels while in port. Inc., et al. Under Section 10 of the act, the liability of an employer for illegal termination of the employment of an overseas worker is the seafarer's salary for the unexpired portion of his or her . 191899, June 22, 2015), the Supreme Court affirmed the Court of Appeals' holding that petitioner is not entitled to permanent total disability benefits. It does not distinguish whether the employer admits or does not admit the dismissal.23 In Barros, the petitioner, a seafarer, claims illegal dismissal, recovery of salaries corresponding to the unexpired portion of his employment contract, repatriation expenses, unauthorized deductions and payments, damages and attorney's fees. By: ATTY. The Court of Appeal's Decision dated September 1, 2016 in CA-G.R. The reasonable link between the seafarer's illnesses and nature of work is the main issue in this Petition for Review on Certiorari under Rule 45 assailing the Court of Appeal's (CA) Decision1 dated September 1, 2016 in CA-G.R. Also, it discussed instances where the award of disability benefits was sustained even if the seafarer had been assessed by a personal physician, thus: The labor arbiter, the NLRC, and the CA are one in finding that on July 14, 1999, or two days after his repatriation, Serna reported to the office of Career Phils, specifically to report his medical complaints, only to be told to wait for his referral to company-designated physicians. Mutiny and seafarer's dismissal - Panay News 2. ), Inc.; G.R. If the employer fails to meet this burden, the conclusion would be that the dismissal was unjustified and, therefore, illegal. Supreme Court rules on liability for illegal dismissal Both the reason and the manner must be appropriate, otherwise the termination itself is gravely defective and may be declared unjustified. Filipino seafarers are aware of the various aspects of the law on termination of Filipino seafarers in order to ensure that the termination is legal. TERMINATION OF EMPLOYMENT x x x x The employment of the seafarer is also terminated when the seafarer arrives at the point of hire for any of the following reasons: when the seafarer signs-off and is disembarked for medical reasons pursuant to Section 20 (B) [5] of this Contract. The factual antecedents are as follows: Labor cases involving Filipino seafarers - PressReader in the subject. The seafarer must make the grievance in writing and in an orderly manner and shall choose a time a time when the complaint or grievance can be properly heard. Section 20(A) of the POEA-SEC clearly states the parameters of its applicability: A. A seafarer working aboard a vessel who believes that he or she has been aggrieved (ie, unjustly treated or subjected to an unfair consideration) may initiate a complaint in accordance with the procedures enumerated in Section 16 of the POEA Standard Employment Contract, as follows: When the grievance procedure is availed of by the seafarer, all actions or decisions must be properly documented for the protection and interest of both parties. After medical repatriation, the seafarer has the duty to report to the company-designated physician within three days upon his return. master's report, to prove such an allegation. A new one is hereby entered DISMISSING complainant-appellant's complaint for total and permanent disability benefits. The Master shall send a complete report to the manning agency substantiated by witnesses, testimonies and any other documents in support thereof. However, under the 2005 rules, the . The Supreme Court ruled that this was a case of illegal dismissal as the records are bereft of any evidence showing thathe was given a written notice of the charges against him, or that he was given an opportunity to explain or defend himself. v. Masagca, 829 Phil. The article is still valid today with one modification. In Loadstar International Shipping, Inc. v. Yamson, et al., supra note 34, this Court awarded P75,000.00 financial assistance. Atty. To unsubscribe, reply to this email and put This email address is being protected from spambots. On the part of the Petitioner, he failed to show proof that he was refused medical examination while, on the part of the Private Respondents, the latter failed to present proof that the Petitioner made such a request. "27 In these circumstances, we agree with the NLRC that Lloyd did not report to the company-designated physician. At any rate, Lloyd's claim that he was medically repatriated is an affirmative allegation and the burden of proof rests upon the party who asserts and not upon he who denies it. G.R. No. 221227 - Supreme Court E-Library In Tangga-an vs Philippine Transmarine Corp. (G.R.No.180636 March 13, 2013), the Supreme Court noted that the unexpired portion of his employment contract includes his basic wages plus all his other monetary benefits such as his corresponding monthly vacation leave pay and tonnage bonuses which are expressly provided and guaranteed in his employment contract as part of his monthly salary and benefit package. 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 seafarers performance was unsatisfactory, the company failed to show that his poor performance amounted to gross and habitual neglect of duties. Copyright 2006 - 2023 Law Business Research. var addy891e135d41d22e4750b9a828f0cfae4a = 'ruben.delrosario' + '@'; Absent substantial evidence as reasonable basis, this Court is left with no choice but to deny Lloyd's claim for disability benefits, lest an injustice be caused to his employer. ), 351 Phil. How Illegal Fishing Is Being Tracked From Space - National Geographic The psychologists hastily concluded that Lloyd's conditions started after the piracy. It is meant to be brief and is not intended to be legal advice. The fact that the petitioner in Barros is a seafarer like Lloyd and that voluntary repatriation was put in issue are immaterial. Extent of awards in illegal dismissal cases - Lexology The results of SCIs Shore Leave Survey document terminal policies that affect chaplains or seafarers access and other restrictions preventing shore leave. Drunkenness as ground for dismissal | SVBB Law Offices 4:12 am Tuesday, May 23, 2017 By: Atty. At any rate, Lloyd's claim that he was medically repatriated is an affirmative allegation and the burden of proof rests upon the party who asserts and not upon he who denies it. However, all other claims, including the claim for moral and exemplary damages are denied for lack of factual basis. 'Clear and existing danger' rule in seafarer's dismissal cases A copy of the second written notice must be sent to the Philippine manning agent. The next generation search tool for finding the right lawyer for you. The seafarer may also seek the assistance of the highest-ranking Filipino seafarer on board. The parties, however, cannot agree on the reason for such repatriation. The employer is obliged to continue to pay the seafarer's wages, and to cover the cost of treatment and medical repatriation, if needed. (2) Section 10 of the Overseas Workers and Overseas Filipinos Act of 1995 stipulates a penalty of three months for every year of service, but the Supreme Court has interpreted this to mean that this penalty applies only if the employment contract has been in effect for more than one year. The seafarer claimed that the captain shrugged off his offer to take an alcohol test, but as soon as he left, the captain made a logbook entry recommending hisimmediate replacement. On appeal, the Court of Appeals upheld the illegal dismissal but only granted three months wages as per Section 10 of Republic Act 8042 (Migrant Workers Act). Foreign seafarers wishing to apply for shore leave in the United States must first obtain a D-1 crewmember visa at a US Consulate before arriving in a US port, paying a visa application fee of $160. Yet, Maryville Manila refused to give him medical assistance when he arrived in the Philippines. The psychologist declared Lloyd permanently unfit for further sea service. (Emphases supplied; citations omitted.). However, the dismissal is without prejudice, which means that the seafarer can re-file his or her complaint. DelRosarioLaw - Liability for illegal dismissal is basic wages for Please try again. The Law on Termination of Filipino Seafarers - Lexology The seafarer's work must involve the risks described therein; 2. In Philippine Transmarine Carriers, Inc. v. NLRC, we affirmed the grant by the CA and by the NLRC of disability benefits to a claimant, based on the recommendation of a physician not designated by the employer. There is no prescribed formality in conducting the investigation, but it is essential is to give the allegedly infringing seafarer ample opportunity to explain or defend himself or herself. Disability benefits of seafarers - PROJECT JURISPRUDENCE US West Coast strikes: PMA and the ILWU reach tentative agreement, PortMiami: First vessel bunkered to the port using LNG, The Northwest Seaport Alliance, Busan Port to create green corridor, US ports and terminals targets of increased cyber security attacks, Port Canaveral to upgrade infrastructure against terrorism and security threats, Rail strike could worsen US port congestion, Top 5 most expensive ports globally all located in the US, PMA, ILWU to start negotiating on new US West Coast labor contract, Sinking of Doa Paz: The worlds deadliest shipping accident, IMO Piracy Report: 11 ships attacked during May. Review your content's performance and reach. As such, it is incumbent upon the employer to prove that the petitioner was not dismissed, or if dismissed, that the dismissal was not illegal; otherwise, the dismissal would be unjustified. The penalty of dismissal from employment was therefore unwarranted. 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. The Supreme Court downplayed the employers' argument and declared the seafarer was illegally dismissed as he was admittedly off duty when he was allegedly caught by the master drinking on board. It requires the employer to likewise act on the report, and in this sense partakes of the nature of a reciprocal obligation. Dennis R. Gorechoheads the seafarers division of the Sapalo Velez Bundang Bulilan law offices. Under Section 10 of Republic Act 8042, the liability of the employer for illegal termination of the employment of an overseas worker is: his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less. No. 138222, which reversed and set aside the findings of the National Labor Relations Commission (NLRC). The Master or his authorized representative then shall conduct the investigation or hearing, giving the seafarer the opportunity to explain or defend himself against the charges. The purpose of this committee is to give guidance and direction to the Colorado Department of Transportation on the development of the state transportation system, and to provide legislative oversight of and input into . Disciplinary action is warranted for unjust refusal to join ship after all employment and travel documents have been duly approved by the appropriate government agencies. Besides, the real reason seafarer refused to board the vessel was that he left the Philippines on November 29, 2004 to join another vessel thru another manning agency. These benefits were guaranteed to be paid on a monthly basis, and were not made contingent. It ratiocinated that Lloyd failed to establish that he was repatriated for medical reasons. It is thus important to observe the substantive and procedural aspects of termination in order to remove any doubt on the legality of the termination. It provides guidelines on dismissal of seafarers. However, Lloyd was repatriated after seven months or on August 29, 2012.3, On July 15, 2013, Lloyd filed a complaint for total and permanent disability benefits against Maryville Manila and Maryville Maritime before the labor arbiter (LA). v. Serna, viz. var addy_text891e135d41d22e4750b9a828f0cfae4a = 'ruben.delrosario' + '@' + 'delrosario-pandiphil' + '.' + 'com';document.getElementById('cloak891e135d41d22e4750b9a828f0cfae4a').innerHTML += ''+addy_text891e135d41d22e4750b9a828f0cfae4a+'<\/a>'; For comments, please send email atinfo@sapalovelez.comor call09175025808./PN, PINOY SEAFARERS RIGHTS: Seafarers illegal dismissal, For More Information Call: +(63-2) 891-1316, General Practice & Litigation / Maritime & Labor. The respondents did not refute such absence from work but averred that it was petitioners who abandoned their jobs. More importantly, the rule applies that whoever claims entitlement to benefits provided by law should establish his right thereto by substantial evidence which is more than a mere scintilla; it is real and substantial, and not merely apparent. The CA cited Baron, et al. If the NLRC finds that there was no just, valid or authorised cause for dismissal as defined by law or contract, the seafarer shall be entitled to his or her salary for the unexpired portion of the employment contract. var addy970cb25c9d97a5c11ef2c13a2e06dad2 = 'ruben.delrosario' + '@'; IntroductionJust and valid causeProcedural due processComplaint before NLRCEvidenceException to due process obligationPenaltiesGrievance procedureCommentIntroduction. Delisting as penalty in seafarer's dismissal cases Liza Soberano, Enrique Gil spotted na magkasama sa isang party, fans nagdiwang! In Marsaman Manning Agency v National Labour Relations Commission (1999) the Supreme Court interpreted the provision to mean that if an overseas Filipino worker is illegally dismissed from. Color. PDF The Law on Termination of Filipino Seafarers - Del Rosario Law Call 720-913-2000 to report illegal fireworks. The disease was contracted as a result of the seafarer's exposure to the described risks; 3. Ruling of the National Labor Relations Commission (NLRC): The Company appealed the Decision to the NLRC. 23 Sevillana v. I.T. an example of a case for illegal dismissal is nfd international manning agents and a/s vulcanus oslo versus national labor relations commission, jose i. ilagan, jr. and constantino co, g.r. Eviction Laws and Tenant Rights in Colorado - Upsolve Before the issuance of the second notice, the requirement of a hearing must be complied with by giving the worker an opportunity to be heard. Reciprocal obligations are those which arise from the same cause, and where each party is effectively a debtor and a creditor of the other, such that the obligation of one is dependent upon the obligation of the other. Employers of seafarers would be well advised to: The second written notice is the notice of dismissal to be served on the infringing seafarer, stating the reasons thereto. It is a settled rule in labor cases that the employer has the burden of proving that the dismissal of a seafarer was for a just or authorized cause, and failure to show this would necessarily mean that the dismissal was unjustified and, therefore, illegal. Llarenas, 811 Phil. What Should I Do If I Get Terminated for Marijuana Use In Colorado? The Colorado Motor Vehicle Resource Book is intended to serve as a reference guide for information on the state's motor vehicle laws. The POEA Administrator penalized seafarer with a one year suspension from deployment. 35 Auza, Jr., et al. document.getElementById('cloak891e135d41d22e4750b9a828f0cfae4a').innerHTML = ''; During the 2022 legislative session, the General Assembly considered measures related to the courts and the judiciary. Luisa C. Quijano-Padilla. Unsuccessful at a reconsideration,12 Lloyd elevated the case to the CA through a petition for certiorari docketed as CA-G.R. On the complaint of the manning agent, seafarers refusal to board the vessel on November 30, 2004 constituted unjustified breach of his contract of employment. Insubordination as a ground for dismissal | SVBB Law Offices - Sapalo Velez The Supreme Court ruled that this was a case of illegal dismissal as the records are bereft of any evidence showing that he was given a written notice of the charges against him, or that he was given an opportunity to explain or defend himself. By continuing, you are agreeing to our use of cookies. In labour courts, every reasonable means to ascertain the facts in each case shall be used without regard to technicalities. Cebu City confident of hitting P8.9-B income target, Rice prices surge as production costs rise, LOOK: Tourism Secretary Garcia-Frasco captivated by Moalboals undersea beauty, New LTO-7 director to prioritize road safety. Under these circumstances, we find no grave abuse of discretion on the part of the NLRC when it affirmed the labor arbiter ruling and gave credence to Serna on this point. Stowaways and seafarer's dismissal | Cebu Daily News When he submitted the report to the captain, the latter allegedly smelled a faint odor of whisky and asked the seafarer if he had been drinking, to which the seafarer truthfully replied that he drank a little whisky and was willing to take an alcohol test. They cannot now be heard to claim that Serna should forfeit the right to claim disability benefits under the POEA-SEC and their CBA. On September 1, 2016, the CA set aside the NLRC's Decision and reinstated the LA's award of total and permanent disability benefits. 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 seafarers dismissal was valid.