Grounds for dismissal

Dennis Gorecho .

THE employer is mandated to show substantial evidence that the seafarer committed acts  of incompetence, inefficiency or neglect of duty as grounds for  a valid dismissal from service.

Incompetence or inefficiency is  the failure to attain work goals or work quotas, either by failing to complete the same within the allotted reasonable period, or by producing unsatisfactory results.

 Neglect of duty, on the other hand, must be both gross and habitual.

 Gross negligence implies a lack of or failure to exercise slight care or diligence, or the total absence of care in the performance of duties, not inadvertently but willfully and intentionally, with conscious indifference insofar as other persons may be affected. The employee exhibits thoughtless disregard of consequences without exerting effort to avoid them.

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.

Using the above principle, the Supreme Court ruled in the case of  EVIC Human Resource Management Inc., v. Rogelio Panahon, (G.R. No. 206890, July 31, 2017) that   the employers  failed to show that the seafarer  willfully or deliberately caused the alleged accident during the mooring operations or that he  repeatedly committed mistakes or repeatedly failed to perform his duties.  The single unverified incident on seafarer’s supposed negligence is surely insufficient to warrant a finding of just cause for termination.

The Court found  the  captain’s Report sorely inadequate in meeting the required quantum of proof to discharge the employers’ burden as  the statements contained therein were uncorroborated and self-serving.

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.

 Furthermore, not only must the dismissal be for a cause provided by law, it should also comply with the rudimentary requirements of due process, that is, the opportunity to be heard and to defend one’s self.

For a dismissal to be valid, the employer must show through substantial evidence or such amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.

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 violations.

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])

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).

 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.

(Lawyer Dennis R. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786.)