Not a walk in the park

Dennis Gorecho

THE job of a seafarer is not exactly a walk in the park. Seafarers working for companies for long periods of time are normally saddled with heavy responsibilities relative to navigation of the vessel, ship safety and management of emergencies.

A seafarer can be subjected to physical and mental stress and strain. These responsibilities cause heavy burdens on one’s shoulders all these years, and certainly contributed to the development of one’s condition on board the vessel.

While on board the vessel, a seafarer may be confronted with situations that will involve untimely repatriation, either he was dismissed or that he suffered from an injury or illness, or worse, if he dies. In the event that his concerns fell on deaf ears, a seafarer might resort to legal action  before  the National Labor Relations Commission (NLRC) or National Conciliation and Mediation Board (NCMB) to assert his monetary claims for (a) termination disputes (or illegal dismissal cases), (b) money claims arising out of employer-employee relationship or by virtue of any law or contract, involving Filipino workers for overseas employment, including nonpayment or underpayment of wages, claims for disability or death benefits,  actual, moral, exemplary and other forms of damages and other cases as may be provided by law.

There are two arbitration routes–the NLRC for mandatory arbitration and the NCMB for voluntary arbitration. The process is based solely on documents–there is no facility for oral witness testimony or for arguments to be presented verbally to the labor arbiter in the NLRC or voluntary abitrators in the NCMB.

The filing of a Single Entry Approach (Sena) initiates the Proceedings in both the NLRC and NCMB which entails the attendance of the parties, without lawyers, at mandatory conferences aimed at settling the claims without the need for matters to progress further.This is followed by at least two further mandatory conferences, which the parties’ lawyers also attend, and which are again aimed at reaching settlement.

If settlement is not reached, the claims then proceed to filing of the first pleading –the position paper setting out their respective arguments. The Complainant (seafarer) will explain why he believes he is entitled to what he is claiming, and the Respondent (Shipowner/employer) will raise contrary opinions.

After the position papers, parties will file a reply in which they rebut the arguments in the other party’s position paper. The final pleading–the rejoinder–is then filed, in which the parties respond to the arguments in the other’s reply.

Once these pleadings are all filed, the claim is deemed “submitted for resolution” by the labor arbiter (NLRC) or panel of voluntary arbitrators (NCMB). The time in which a decision is delivered is variable. It is generally expected within three to six months but can take longer.

When the decision is delivered, the next step differs between the NLRC and NCMB.

In the NLRC, the unsuccessful party can file an appeal to the Commission (NLRC). They have 10 days to do so. The appeal, if pursued by the shipowner, must be secured by a bond.

When the decision on the appeal is delivered, the unsuccessful party can file a motion for reconsideration within 10 days from receipt of the decision.

In the NCMB, there is no appeal stage. Instead, the unsuccessful party who wishes to contest the decision must file a motion for reconsideration.

When the decision on the motion for reconsideration is delivered, the unsuccessful party can elevate the claim to the Court of Appeals. This is done via a petition for certiorari from the NLRC or a petition for review from the NCMB.

The denial of a motion for reconsideration also means that any award of damages to a seafarer becomes “final and executory” within 10 days from receipt of the decision unless the Court of Appeals issues a Temporary Restraining Order (TRO).

Final and executory means that the seafarer can file a motion seeking the issuance of a writ of execution, which, if granted, will entitle him to payment of the award of damages.

When the decision on the petition is issued, the unsuccessful party has a final chance of redress by applying to the Supreme Court. The decision rendered here is final, and no further appeal is possible.

If the decision in relation to the petition for certiorari/review, or from the Supreme Court favors the shipowner, they are entitled to restitution of the award previously paid out, once the case reaches finality and the corresponding entry of judgment has been issued.

(Lawyer Dennis R. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. He is a speaker on  nationwide paralegal seminars on seafarers’ rights. He is presently the  president of the Maritime Law Association of the Philippines, and an active member of the Maritime Forum Inc., the National Seafarers Day committee and International Pro Bono Network. E-mail: info@sapalovelez.com)