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‘Clear and existing danger’ rule in seafarer’s dismissal cases

By: ATTY. DENNIS R. GORECHO - Columnist/CDN Digital | March 03,2020 - 07:00 AM

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 in cases of a seafarer’s dismissal.

The untimely termination of a seafarer’s employment can be declared a case of illegal dismissal if  the employer fails to prove that the seafarer was afforded procedural due process.

‘Two notice and one hearing rule’

The POEA Standard Employment Contract (SEC) enumerates in Section 17 the disciplinary procedures, or the “two notice and one hearing rule”,  that must be followed in dismissing a seafarer.

The Master shall furnish the seafarer with a written notice containing (a) the grounds for the charges and (b) date, time and place for a formal investigation of the charges against the seafarer concerned.

The Master or his authorized representative then shall conduct the investigation or hearing, giving the seafarer the opportunity to explain or defend himself against the charges.

An entry on the investigation shall be entered into the ship’s logbook.

If, after the investigation or hearing, the Master is convinced that imposition of a penalty is justified, the Master shall issue a written notice of penalty and the reasons for it to the seafarer, with copies furnished to the Philippine agent.

The rules also state that dismissal for just cause may be effected by the Master without furnishing the seafarer with a notice of dismissal if doing so will prejudice the safety of the crew or the vessel. This information shall be entered in the ship’s logbook.

The Master shall send a complete report to the manning agency substantiated by witnesses, testimonies and any other documents in support thereof.

‘Clear and existing danger’ rule

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. No. 206890, July 31, 2017).

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.

Supreme Court ruling

The Supreme Court ruled that this was a case of illegal dismissal as the records are bereft of any evidence showing that he was given a written notice of the charges against him, or that he was given an opportunity to explain or defend himself.

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 employers admitted that these required notices were dispensed with because, according to them, there was a clear and existing danger to the safety of the crew or vessel.

Merchant shipping is known to be an occupation with a high rate of fatal accidents caused by maritime disasters and occupational accidents. Most accidents happen because of simple mistakes in use of navigational equipment and interpretation of the available information.

Unfortunately for the employers, however, there is no evidence that was presented to prove such was the situation when the seafarer  was terminated.

It is a settled rule in labor cases that the employer has the burden of proving that the dismissal of a seafarer was for a just or authorized cause, and failure to show this would necessarily mean that the dismissal was unjustified and, therefore, illegal.

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.

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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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