Sleeping on post while on duty as ground for dismissal

Dennis Gorecho .

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 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. 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.

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)

The Supreme Court ruled that sleeping on the job is 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). 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, G.R. No. 147031. July 27, 2004)

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 months for every year of the unexpired term.

To address the issue of proper rest hours, the   Maritime Labor Convention 2006 (MLC2006)   of the International Labor Organization (ILO) stated the  number of ship working and rest  hours:

The maximum working hours should be: (a) eight  hours a day, under normal circumstances, with one day as rest day ; (b)  a maximum of 14 hours in any 24 hour period ; and (c) a maximum of 72 hours in any seven-day period

 The minimum hours of rest, as per the ILO maritime convention should be (a) a minimum of ten hours in any 24 hour period and (b)  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 is  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.

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