Clemency for delisted seafarers
A seafarer who is penalized with delisting from the registry of Philippine Overseas Employment Administration (POEA) may be granted clemency under certain circumstances.
Clemency is the power given to a public official to lower the harshness of punishment imposed upon an erring person.
The maximum penalty of disqualification from participation in the overseas maritime employment program or delisting from the POEA registry may be imposed upon an erring seafarer depending on the gravity of the offense committed.
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.
Under the POEA rules, in the determination of the penalties to be imposed against a seafarer, the following mitigating, aggravating and alternative circumstances attendant to the commission of the offense shall be considered: first offender; admission of guilt and voluntary restitution, where applicable; good faith; exemplary performance; habitual offender; prejudice to the seafarer; gross negligence; or other analogous circumstances.
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 or reprimand, whatever missteps may have been committed by the worker ought not to be visited with a consequence so severe such as dismissal or delisting.
In granting clemency, the POEA will take into account any of the following conditions: the seafarer is a first time offender; the offense committed does not involve a serious offense, or crime involving moral turpitude, misrepresentation or theft; or he should have served at least seventy-five percent (75%) of the period of the penalty imposed; and the case has been settled/resolved with the offended party.
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 falls under insubordination which is assaulting a superior officer or other persons on business with the ship with the use of deadly weapon.
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 subordinates.
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.
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.
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.
Atty. 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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