5:58 am Friday, March 3, 2017
By: Atty. Dennis R. Gorecho
Insubordination is one actuation identified by the Philippine Overseas Employment Administration- Standard Employment Contract (POEA-SEC) as a ground for dismissal of Filipino Seafarers.
It consists of any of the following:
- any act of disobedience to lawful orders of a superior officer
- attempting to assault a superior officer
- assaulting a superior officer/other persons on business with the ship without the use of deadly weapon
- assaulting a superior officer/other persons on business with the ship with the use of deadly weapon
- behaving with disrespect towards a superior officer
- insulting a superior officer by words or deed
- inciting another to commit insubordination
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. Section 33 of the POEA SEC enumerates twenty one (21) offenses which are considered valid grounds for dismissal, including insubordination.
For willful disobedience of the employer’s lawful orders can be a just cause for dismissal of an employee, the requisites are: (a) the employee’s assailed conduct must have been willful or intentional, the willfulness being characterized by a “wrongful and perverse attitude”; and (b) the order violated must be reasonable, lawful, made known to the employee and pertains to the duties which the employee has been engaged to discharge. (Stolt-Nielsen Marine Services (Phils.) Inc. vs. NLRC 258 SCRA 643)
Some incidents, which in the normal course of events may occur one way or another, are not synonymous to “insubordination” and “willful disobedience” that is punishable by dismissal as normally erroneously imputed by the companies to seafarers.
The Supreme Court held in the case Gold City Integrated Port Services, Inc. vs. NLRC (189 SCRA 811) that “not every case of insubordination or willful disobedience by an employee of a lawful work-connected order of the employer or its representative is reasonably penalized with dismissal. There must be reasonable proportionality between, on the one hand, the willful disobedience by the employee and, on the other hand, the penalty imposed therefor”. For misconduct to be considered serious, it must be of such grave and aggravated character and not merely trivial or unimportant (Austria vs. NLRC, 312 SCRA 410).
The Court likewise stressed in Hong Kong Shanghai Banking Corporation vs. NLRC (260 SCRA 49) that “a grave injustice is committed in the name of justice when the penalty imposed is grossly disproportionate to the wrong committed. To be lawful, the cause for termination must be a serious and grave malfeasance to justify the deprivation of a means of livelihood.” There is no question that the employer has the inherent right to discipline, including that of dismissing its employees for just causes. This right is, however, subject to reasonable regulation by the State in the exercise of its police power. The finding of the NLRC that an employee violated company rules and regulations is subject to scrutiny by the Court to determine if the dismissal is justified and, if so, whether the penalty imposed is commensurate to the gravity of the offense (Associated Labor Unions-TUCP et al vs. NLRC, 302 SCRA 708).
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.