4:13 am Monday, July 3, 2017
By: Dennis R. Gorecho
Insubordination 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), which covers any of the following acts:
- 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; and
- inciting another to commit insubordination.
Insubordination, as a just cause for the dismissal of a seafarer, necessitates the concurrence of at least two requisites: (1) the seafarer’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 seafarer, and must pertain to the duties which he had been engaged to discharge. (MAERSK-FILIPINAS CREWING, INC., vs. TORIBIO C. A VESTRUZ, G.R. No. 207010, February 18, 2015)
Some incidents, which in the normal course of events may occur one way or another, are not synonymous to “insubordination” and “willful disobedience” that are punishable by dismissal as normally erroneously imputed by the companies to seafarers.
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 therefore (Gold City Integrated Port Services, Inc. vs. NLRC (189 SCRA 811)”. 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).
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).
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)
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.
It is well-settled that the burden of proving that the termination of an employee was for a just or authorized cause lies with the employer. If the employer fails to meet this burden, the conclusion would be that the dismissal was unjustified and, therefore, illegal. In order to discharge this burden, the employer must present substantial evidence, which is defined as that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion, and not based on mere surmises or conjectures (MAERSK-FILIPINAS CREWING, INC., vs. TORIBIO C. A VESTRUZ, G.R. No. 207010 February 18, 2015)
Telefax transmission or emails purportedly executed and signed by a person on board the vessel, like the captain or any officer, is insufficient evidence to prove the commission of the acts constituting the grounds for the dismissal of seafarers, being uncorroborated evidence. (Pacific Maritime Services, Inc. v. Ranay, 341 Phil. 716 (1997).