Philippine Shipping Update Manning Industry, By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., July 7, 2011 (Issue 2011/03), Liability for illegal dismissal is basic wages for the unexpired portion of contract. The POEA Administrator penalized seafarer with a one year suspension from deployment. 675 (2010), this Court affirmed the award of P50,000.00 financial assistance. The reportorial requirement is only a condition sine qua non for entitlement to sickness allowance,7 thus: At the outset, while it may be conceded that the instant complaint was only filed several months after the complainant's repatriation and that there was no record at all that shows that complainant was repatriated due to his present illness, this Office, however, cannot help but consider the glaring fact that complainant, for one reason or another, had failed to finish his last contract with respondent, x x x [T]his Office finds the respondents' allegation that it was complainant who requested for his early repatriation bereft of any evidentiary support. 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. The captain had him awakened and ordered him to make a report on some damages in the railings of the ship caused by the stevedores. The LA even brushed aside this issue and held that compliance with the reportorial requirement applies only to claims for sickness allowance and not to disability benefits. var path = 'hr' + 'ef' + '='; Both the reason and the manner must be appropriate, otherwise the termination itself is gravely defective and may be declared unjustified. Please try again. It is meant to be brief and is not intended to be legal advice. More importantly, the rule applies that whoever claims entitlement to benefits provided by law should establish his right thereto by substantial evidence which is more than a mere scintilla; it is real and substantial, and not merely apparent. 23 Sevillana v. I.T. Thus, fearing that the safety of the vessel and/or crew may be at risk with the continued presence of the seafarer, the employerswere constrained to ask that the seafarer be relieved. Gorecho is a legal commentator on maritime issues on print, radio and TV. 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. 19 Paredes v. Feed the Children Philippines., Inc., et al., 769 Phil. Also, it discussed instances where the award of disability benefits was sustained even if the seafarer had been assessed by a personal physician, thus: The labor arbiter, the NLRC, and the CA are one in finding that on July 14, 1999, or two days after his repatriation, Serna reported to the office of Career Phils, specifically to report his medical complaints, only to be told to wait for his referral to company-designated physicians. Termination of the POEA contract | SVBB Law Offices - Sapalo Velez As such, it is incumbent upon the employer to prove that the petitioner was not dismissed, or if dismissed, that the dismissal was not illegal; otherwise, the dismissal would be unjustified. Copyright 2006 - 2023 Law Business Research. 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. Foreign seafarers wishing to apply for shore leave in the United States must first obtain a D-1 crewmember visa at a US Consulate before arriving in a US port, paying a visa application fee of $160. The manning agent is probably the best repository for such records, as the case will be heard in the NLRC, and the manning agent and its principal will be named as respondents. UNDER the Philippine legal system, the reason for ones termination of employment is as important as the manner it is done. If no satisfactory result is achieved, the seafarer concerned may appeal to the management of the company or with a Philippine Overseas Labour Office or consular officer overseas. Foremost, piracy is a risk confronting all seafarers while in voyage, but the clinical report only made general statements on punishments and deprivation of food, water and liberty. 165389, october 17, 2008. the court said, Absent evidence of medical repatriation and refusal to give treatment, it can be reasonably deduced that Lloyd suffered illnesses after the term of his contract. This publication is sent from time to time to clients and friends. The relationship of the risk and the diseases was not fairly established. All told, Lloyd is not entitled to total and permanent disability benefits for failure to prove that he was repatriated for medical reasons and that a reasonable link exists between his illnesses and nature of work. Should sanctions be imposed, then a written notice of penalty and the reasons for it shall be furnished the erring seafarer. 34 Andrada v. Agemar Manning Agency, Inc., et al, 698 Phil. Visit our. For further information, please email This email address is being protected from spambots. He is a speaker on nationwide paralegal seminars on seafarers rights. Required fields are marked *. As there is no showing of a clear, valid, and legal cause for the Petitioner's repatriation, the issue will, therefore, be resolved in like manner as claims for illegal dismissal, which means that the burden is on the employer to prove that the termination was for a valid or authorized cause. The article is still valid today with one modification. They cannot now be heard to claim that Serna should forfeit the right to claim disability benefits under the POEA-SEC and their CBA. v. Serna15 and held that Lloyd sought medical examination but was refused, thus: There is no dispute that the Petitioner was repatriated before the end of his contract with the Private Respondent. We see no reason to disturb the lower tribunals' finding, x x x. The Supreme Court underscored the clear and existing danger rule in dismissal cases in the case of EVIC Human Resource Management Inc., v. Rogelio Panahon,(G.R. Insubordinaton and seafarer's dismissal | seafarertimes.com It does not distinguish whether the employer admits or does not admit the dismissal.23 In Barros, the petitioner, a seafarer, claims illegal dismissal, recovery of salaries corresponding to the unexpired portion of his employment contract, repatriation expenses, unauthorized deductions and payments, damages and attorney's fees. There is no indication, during the intervening period of eight months from repatriation to deployment, that Lloyd experienced any sign of the alleged diseases. RANULFO CAMPOREDONDO,G.R. Accordingly, his partial appeal is DENIED for lack of merit. Before the issuance of the second notice, the requirement of a hearing must be complied with by giving the worker an opportunity to be heard. Unsuccessful at a reconsideration,12 Lloyd elevated the case to the CA through a petition for certiorari docketed as CA-G.R. v. Masagca, 829 Phil. No. The award of compensation and disability benefits cannot rest on speculations, presumptions and conjectures.34 Although labor contracts are impressed with public interest and the provisions of the POEA-SEC must be construed logically and liberally in favor of Filipino seamen in the pursuit of their employment on board ocean-going vessels, still the rule is that justice is in every case for the deserving, to be dispensed with in the light of established facts, the applicable law, and existing jurisprudence.35. Seafarer's drunkenness while off-duty | Cebu Daily News This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. Likewise, we observed that the CA heavily relied in Career Philippines Shipmanagement, Inc., in ruling that Lloyd was refused medical treatment. ( GR 184318. However, all other claims, including the claim for moral and exemplary damages are denied for lack of factual basis. Also, it held that the reportorial requirement applies to claims for disability compensation. This notwithstanding, respondents, for no apparent valid reason, lifted no finger to do so, thus, renders their stance, highly suspect, x x x, In addition, anent the respondents' contention that complainant failed to report within three days after his repatriation, be that as it may, this, albeit assailed by complainant, does not detract from the complainant's entitlement to full disability compensation. Thus, seafarer should be paid his remaining nine months salary and not just three months as ruled by the Court of Appeals. Maryville Manila and Maryville Maritime maintained that Lloyd is not entitled to any disability benefit. In any case of early termination, the seafarer must be accorded procedural due process in compliance with the provisions of Section 17 of the POEA-SEC, which requires 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. This memorandum describes the programs authorized by the Infrastructure Investment and Jobs Act and the Inflation Reduction Act that may provide formula or competitive grants to Colorado. While the mandatory reporting requirement obliges the seafarer to be present for the post-employment medical examination, which must be conducted within three (3) working days upon the seafarer's return, it also poses the employer the implied obligation to conduct a meaningful and timely examination of the seafarer. Neither is there proof that the seafarer was furnished with a written notice of the penalty imposed against him and the reasons for its imposition. The Lawphil Project - Arellano Law Foundation. COMPENSATION AND BENEFITS FOR INJURY OR ILLNESS. DUE TO REGULATION , CONTROL PROCEDURES OF THE 1978 STCW CONVENTION, AS AMENDED: v. Serna, viz. The disease was contracted within a period of exposure and under such other factors necessary to contract it; and. It is thus important to gather and preserve the evidence immediately after the termination. The Decision dated August 29, 2014 of the National Labor Relations Commission is REINSTATED with MODIFICATION in that Maryville Manila, Inc. is ordered to pay Lloyd Espinosa the amount of P100,000.00 as financial assistance. The psychologist declared Lloyd permanently unfit for further sea service. The Master shall send a complete report to the manning agency substantiated by witnesses, testimonies and any other documents in support thereof. This committee was created pursuant to Section 43-2-145, C.R.S. In that case, we denied the private respondents' argument that the petitioner voluntarily terminated his employment on the claim that he himself requested repatriation.
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illegal dismissal seafarer