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Delisting as penalty in seafarer’s dismissal cases

By: ATTY. DENNIS R. GORECHO - CDN Digital | December 24,2019 - 06:27 AM

The  maximum penalty of disqualification  from maritime employment  or delisting from  the registry of the Philippine Overseas Employment Administration (POEA) may be imposed upon an erring seafarer depending on the gravity of the offense committed.

Dismissal is the ultimate penalty that can be meted to a seafarer because his  job is considered as property.  The Constitution commands that no person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. 

When a seafarer commits an act considered as an offense under the POEA contract, 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.

In the actual imposition of penalties, due consideration must still be given to the seafarer’s  length of service and the number of violations committed during his employ.

Where a penalty less punitive would suffice like suspension, whatever missteps may have been committed by the worker ought not to be visited with a consequence so severe such as dismissal or delisting.

There are actuations that the seafarer will immediately be meted with delisting  from the POEA registry or automatic  disqualification  from maritime employment.  

Two of the acts fall under the category of smuggling or violation of any custom rules and regulations of the Philippines and of foreign port specifically (a)  possession or use of prohibited drugs, narcotics and other contraband and (b) gun-running or possession of explosives and the like.

Another act is  assaulting a superior officer/other persons on business with the ship with the use of deadly weapon that falls under insubordination.

A seafarer may also be delisted if he is guilty of deserting or attempting to desert.

On the other hand, an official may be delisted if he committed grave abuse of authority (with the use of deadly weapon) resulting in harm or injury to subordinate.

The  POEA contract requires compliance with two basic requirements for a lawful dismissal: a just or authorized case as prescribed by law, and observance of due process.  The former comprises the substantive requirement, and the latter constitutes the procedural requirement for a valid dismissal.

The burden of proving that the termination of a seafarer 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.

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.

In any case of early termination, the seafarer must be accorded procedural due process 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.

Before the issuance of the second notice, the requirement of a hearing must be complied with by giving the seafarer  an opportunity to be heard. It is not necessary that an actual hearing be conducted. Should sanctions be imposed, then a written notice of penalty and the reasons for it shall be furnished the erring seafarer.

The penalties for administrative actions shall be separate and distinct from whatever appropriate criminal action that may be filed against the seafarer.

In case of an illegal dismissal, either there is no valid ground or he was not afforded due process under the “two-notice” rule, 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.

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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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