Asserting one’s right is not  insubordination

By: ATTY. DENNIS R. GORECHO - CDN Digital | January 21,2020 - 07:45 AM

Asserting one’s right is not tantamount to insubordination in  dismissal cases.  

This was the principle used by the  Supreme Court when it ruled that the seafarer was illegally dismissed in Transglobal Maritime Agency, Inc. , v. Vicente Chua, Jr.  ( G.R. No. 222430, August 30, 2017).

While at the port of Mailiao, Taiwan, the seafarer  and his four (4) companions left the vessel for shore leave from 7:00 p.m. to 10:00 p.m. When they returned at around 11:40 p.m., the ship captain was infuriated. Four days later , the ship captain called  the seafarer  and the others, and were served with a written reprimand regarding the incident. However, they refused to sign and acknowledge receipt of the reprimand and, subsequently, the vessel’s logbook entry on the matter. Thereafter, the seafarer  and the others disembarked and returned to the Philippines.

In their complaint for illegal dismissal, the seafarer stated  that he and his companions returned later than their shore leave because of a problem with their contracted vehicle. They immediately went to the ship’s office to return their passports and documents. However, the ship captain was furious and asked to explain their tardiness. The seafarer  also alleged that they declined to sign the written reprimand for it contained falsehoods.

The  employers argued that seafarer  was dismissed for a just cause since his refusal to sign the written reprimand is a clear act of insubordination and disrespect towards superior officers.

The Supreme Court ruled in favor of the seafarer  as it noted that the seafarer’s  arguing and misbehaving when he returned after his shore leave was not sufficiently established.

Insubordination or willful disobedience, 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.

A willful or intentional disobedience of such rule, order or instruction justifies dismissal only where such rule, order or instruction is (1) reasonable and lawful, (2) sufficiently known to the seafarer, and (3) connected with the duties which the employee has been engaged to discharge.

 By virtue of the POEA contract, the seafarer is indeed bound to obey the lawful commands of the captain of the ship, but only as long as these pertain to his duties.

 The Supreme Court  opined that there is no relevance to the order to sign the documents in the seafarer’s performance of his duty as a seafarer.

The pieces of evidence presented are insufficient to establish that the seafarer’s refusal was characterized by a wrongful and perverse mental attitude rendering his act inconsistent with proper subordination.

The seafarer  had explained that he refused to sign the written reprimand for he maintained that the same contained falsehoods for he maintained that he had an explanation for his late arrival.

In termination cases, the employer bears the burden of proving that the dismissal of the employee is for a just or an authorized cause. Failure to dispose of the burden would imply that the dismissal is not lawful.

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.

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.

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.


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

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TAGS: CDN Digital opinion, columnist Dennis Gorecho, Pinoy Marino Rights, seafarer's rights

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