3:30 am Tuesday, August 15, 2017
By: Atty. Dennis R. Gorecho
It is settled that the employer has the burden to prove that the dismissal of a seafarer is based on a valid cause. To discharge this burden, the employer must present substantial evidence – or such amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion – that the cause of the seafarer’s dismissal was valid. Specifically, the employer must comply with the following requisites: (1) the dismissal must be for a just or authorized cause, and (2) the employee to be dismissed must have been afforded due process of law.
As a general concept, poor performance is tantamount to inefficiency and incompetence in the performance of official duties. An unsatisfactory rating can be a just cause for dismissal only if it amounts to gross and habitual neglect of duties. Poor or unsatisfactory performance of an employee does not necessarily mean that he is guilty of gross and habitual neglect of duties
To ascribe gross neglect, there must be lack of or failure to exercise slight care or diligence, or the total absence of care in the performance of duties. In other words, there is gross neglect when the employee exhibits thoughtless disregard of consequences without exerting effort to avoid them. On the other hand, 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 dismissal report against the seafarer did not describe the specific acts that would establish his alleged poor performance, or his want of even slight care in the performance of his official tasks as chief cook for a certain period of time; hence, even assuming that seafarer’s performance was unsatisfactory, the company failed to show that his poor performance amounted to gross and habitual neglect of duties. (INC SHIPMANAGEMENT, INC.,v. RANULFO CAMPOREDONDO, G.R. No. 199931, September 07, 2015)
Accordingly, the following factors should be considered in relation to incompetence:
- the workload of the seafarer should be consistent with the position agreed upon in the labor contract or with the workload of similar other seafarers;
- the reasons an seafarer is identified as incompetent should be based on his personal performance, rather than objective factors beyond his control;
- methods for assessing competence must be lawful;
- whether the seafarer is deemed competent or not should be measured against specific standards, and cannot be judged by qualifications or rank;
- when declaring a seafarer to be incompetent, corresponding evidence should be obtained in addition to legal and applicable standards.
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 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 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.