Seafarer’s drunkenness while  off-duty

By: ATTY. DENNIS R. GORECHO July 16,2019 - 03:31 AM

A seafarer cannot be dismissed  on the ground of drunkenness or intoxication if he is off-duty.

The Supreme Court clarified in the case of EVIC Human Resource Management Inc., v. Rogelio Panahon, (G.R. No. 206890, July 31, 2017) that Section 33(6) of the Philippine Overseas Employment Administration (POEA) contract provides that drunkenness must be committed while on duty to merit dismissal from employment.

The seafarer in said case admitted that he took a sip from the small flask of whisky given to him by one of the stevedores he dealt with and went to bed.

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.

When he submitted the report to the captain, the latter allegedly smelled a faint odor of whisky and asked the seafarer if he had been drinking, to which the seafarer truthfully replied that he drank a little whisky and was willing to take an alcohol test.

The seafarer claimed that the captain shrugged off his offer to take an alcohol test but as soon as he left, the captain made a logbook entry recommending his immediate replacement.

The company argued that the dismissal was justified because the seafarer was caught intoxicated, in violation of the company policies, instructions, and stipulations of the POEA contract.

Thus, fearing that the safety of the vessel and/or crew may be at risk with the continued presence of the seafarer, the employers were constrained to ask that the seafarer be relieved invoking Section 33 of the POEA contract.

Said section enumerates  twenty one (21) offenses which are considered valid grounds for dismissal, which include drunkenness under the following situations: (a) drunk while on duty, (b) creating trouble on board due to intoxication, and (c) failure to perform assigned jobs due to intoxication.

The restriction is based on researches which shows that even small quantities can impair judgement, leading to increased risk-taking, concentration problems, lower performance of navigational tasks such as tracking and difficulty responding to unexpected or emergency situations. It also greatly reduces the chances of survival in the water.

The Supreme Court downplayed the employers’ argument and declared the seafarer was illegally dismissed as he was admittedly off duty when he was allegedly caught by the master drinking on board. The penalty of dismissal from employment was therefore unwarranted.

The seafarer was not also  given a written notice of the charges against him, or that he was given an opportunity to explain or defend himself.

Neither was there proof that he was furnished with a written notice of the penalty imposed against him and the reasons for its imposition.

The employers admitted that these required notices were dispensed with because there was a clear and existing danger to the safety of the crew or vessel. However, there was no evidence that was presented to prove such was the situation when the seafarer was terminated.

When a seafarer commits the violative acts, 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 the penalty of suspension or permanent disqualification from participation in the overseas employment program based on the frequency of the commission of the offense.

The Seafarer’s Identification and Registration Book (SIRB) under MARINA rules may likewise be suspended after due process due to Intemperate habits such as drunkenness tending to cause immediate loss or destruction or serious damage to the vessel or tending to endanger the life of any person organic to or passenger of such vessel.

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.

***

Atty. Dennis R. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, email [email protected], or call 09175025808 or 09088665786).

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