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Supreme Court rules on incompetence, negligence and insubordination as grounds for valid dismissal of seafarer

Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc.,  5 December 2017 (Issue 2017/21)

 Supreme Court rules on incompetence, negligence and insubordination as grounds for valid dismissal of seafarer

In two recent cases, the Supreme Court had the opportunity to define incompetence, negligence and insubordination as valid grounds for the dismissal of a seafarer.
 
In the case of a seafarer who was dismissed from employment based on a Crew Behavior Report prepared by the Master, the Supreme Court held that this alone is insufficient to show just cause of dismissal.
 
In the report, the Master charged the seafarer with inefficiency, incompetence and gross neglect when another crewmember was injured because he failed to observe proper safety precautions during mooring operations.  Also in the report, the Master charged the seafarer with violation of the alcohol policy when a port agent informed him that the seafarer was hard to deal with because of intoxication.    
 
However, the report was deemed insufficient by the Supreme Court to be basis for a valid dismissal.  The Court noted that aside from the statement of the Master, no further evidence was presented such as the affidavit of the injured crew or the port agent.  As such, the Court did not give credence to the report.
 
The Supreme Court further explained that incompetence or inefficiency, as a ground for dismissal, is understood to mean 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. 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.
 
The Court held that there was no proof to show that the seafarer willfully or deliberately caused the alleged accident during the mooring operations or that respondent repeatedly committed mistakes or repeatedly failed to perform his duties. The single unverified incident on seafarer's supposed negligence is insufficient to warrant a finding of just cause for termination.
 
On the charge of intoxication, the POEA Contract provides that drunkenness must be committed while on duty to merit dismissal from employment. In this case, the seafarer was off duty when he was allegedly caught by the master drinking on board.
 
In another case, a seafarer was dismissed from employment because he refused to sign and acknowledge receipt of a reprimand and, subsequently, the vessel's logbook entry on the matter.
 
The seafarer went on a shore leave but was late from coming back to the ship.  For this reason, he was reprimanded by the Master.  However, the seafarer, when directed to, refused to sign the written reprimand as well as the logbook entry indicating the reprimand as he believes it contained falsehoods.  For this reason, he was dismissed.
 
The Supreme Court expounded that insubordination or willful disobedience, as a just cause for the dismissal of an employee, necessitates the concurrence of at least two requisites: (1) the employee's assailed conduct must have been willful, that is, characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to the employee, and must pertain to the duties which he had been engaged to discharge.  Moreover, a willful or intentional disobedience of such rule, order or instruction justifies dismissal only where such rule, order or instruction is (1) reasonable and lawful, (2) sufficiently known to the employee, and (3) connected with the duties which the employee has been engaged to discharge.
 
The Court ruled that the seafarer is indeed bound to obey the lawful commands of the captain of the ship, but only as long as these pertain to his duties.  It noted that there was no relevance between the order of the Master to sign the documents to the seafarer’s performance of his duty as a seaman.
 
Also, even if the commands of the Master to sign the receipt of the written reprimand and to sign the ship's logbook were to be considered as lawful commands supposed to be obeyed by the complement of a ship, seafarer's refusal to do the same does not warrant the supreme penalty of dismissal.  Dismissal is too harsh a penalty to be imposed due to seafarer's supposed disobedience as it was not established that it was characterized by a wrongful and perverse mental attitude given that he believed the written reprimand and logbook contained falsities for he maintained that he had an explanation for his late arrival.
 
Evic Human Resource Management, Inc., Free Bulkers S.A. et. al. vs. Rogelio Panahon, G.R. No. 206890  July 31, 2017, First Division, Associate Justice Alfredo Benjamin Caguioa, ponente
 
Transglobal Maritime Agency, Inc., Goodwood Shipmanagement PTE, Ltd. et. al. vs. Vicente Chua, Jr., G.R. No. 222430, August 30, 2017, Second Division, Associate Justice Diosdado Peralta, ponente
 
Firm News

Del Rosario Law Partners, Charles Jay Dela Cruz and Denise Luis Cabanos, were speakers at the in-house training seminar conducted by Thome Ship Management last 6 October 2017.  They lectured on various issues on crew claims, collision and cargo matters.  Likewise, Charles and Denise together with Del Rosario Pandiphil’s medical consultant, Dr. Edgardo Del Rosario, were also speakers at Thome Ship Management for their Bulk Workshop held last 8 to 10 November 2017.
 
Del Rosario Law Senior Associate Jerome Pampolina was a speaker at the separate seminars for the officers and crew of Jebsens Maritime Inc./Doun Kisen Co., Ltd. and Foscon Ship Management, Inc./Star Management Associates on 20 October 2017 and 20 November 2017, respectively.  The topics discussed at the seminars include work-related illnesses and updates on Philippine Jurisprudence on the matter.  The Seafarer’s Protection Act was likewise discussed to educate officers and crew on the relatively new law.
 
Many thanks to Thome Ship Management, Jebsens Maritime Inc./Doun Kisne Co., Ltd. and Foscon Shipmanagement, Inc./Star Management Associates for their kind invitation and hope to see you again in your future seminars.
 
2017 AsiaLaw Profiles:  Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution  & Litigation, Insurance, Intellectual Property, Labour & Employment
 
“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497
 
“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494
 
“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949
 
This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  To subscribe or for further information, please email This email address is being protected from spambots. You need JavaScript enabled to view it. .

 

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