guiding principle in illegal dismissal

Settled is the rule that in termination cases, the burden of proof rests upon the employer to show that the dismissal is for a just and valid cause. The case of the employer must stand or fall on its own merits and not on the weakness of the employee's defense. 

(pcl shipping philippines, inc. and u-ming marine transport corporation versus national labor relations commission and steve rusel, g.r. no. 153031, december 14, 2006)

national migrants' sunday

last february 26, 2012, we celebrated the national migrants' sunday. here are some articles which highlight the ever pressing need of our government to provide decent jobs for its citizens.

http://www.mb.com.ph/articles/352497/church-unemployment-drives-pinoys-migration

http://www.gmanetwork.com/news/story/249244/pinoyabroad/catholic-church-to-fete-ofws-on-natl-migrants-sunday-feb-26

http://www.radyonatin.com/story.php?storyid=1970

case on illegal dismissal

an example of a case for illegal dismissal is nfd international manning agents and a/s vulcanus oslo versus national labor relations commission, jose i. ilagan, jr. and constantino co, g.r. no. 165389, october 17, 2008. the court said, 

The minimum requirement of due process in termination proceedings, which must be complied with even with respect to seamen on board a vessel, consists of notice to the employees intended to be dismissed and the grant to them of an opportunity to present their own side on the alleged offense or misconduct, which led to the management’s decision to terminate. To meet the requirements of due process, the employer must furnish the worker sought to be dismissed with two written notices before termination of employment can be legally effected, i.e., (1) a notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice after due hearing which informs the employee of the employers' decision to dismiss him.

(you can find complete text of the case on the supreme court website, lawphil or chanrobles).

illegal dismissal

photo is not mine! photo is not mine! photo is not mine!

i posted the picture because it reminds me of a particular movie -- one which involved a cruise ship sinking because of watchers who were not paying attention to their jobs. supposed the ship did not sink there and then, could the captain immediately dismiss the watchers or terminate their employment?

no.

Section 17 of the Revised Standard Employment Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean-Going Vessels supplies the disciplinary procedure against an erring seafarer:

SECTION 17. DISCIPLINARY PROCEDURES:

A. The master shall furnish the seafarer with a written notice containing the following:

The Master shall furnish the seafarer with the following disciplinary procedure against an erring seafarer:

1. Grounds for the charges as listed in Section 31 of this Contract.

2. Date, time and place for a formal investigation of the charges against the seafarer concerned.

B. The Master or his authorized representative 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.

C. 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, which copies shall be furnished to the Philippine Agent.

D. Dismissal for just cause may be effected by the master without furnishing the seafarer with 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 the witnesses, testimonies and any other documents in support thereof.

the above procedure is, in essence, what you call due process. a similar provision is also found in our labor code.

sources of rights of seafarers

seafarers have several rights and can be considered, to a certain extent, more favored than land-based workers. for example, seafarers have no placement fee. on the other hand, land-based workers have to pay a certain amount, depending on their destination and job, as their placement fee.

what are the sources of seafarers rights? we have:

1. the law; and

2. contracts. 

(this is similar to the philippine civil code on obligations. article 1157 provides that:

Obligations arise from:

1. law;

2. contracts;

3. quasi-contracts;

4. acts and omissions punishable by law; and

5. quasi-delicts.

***numbers 3 to 5 can really fall under the category of law***)

under the law, seafarers have rights under:

1. republic act 8042 or the Migrant Workers and Overseas Filipino Act of 1995 (this was amended by republic act 10022);

2. the labor code (presidential decree 422)

3. the civil code

4. the 1987 constitution.

when it comes to contracts, seafarers have rights under:

1. the philippine overseas employment administration standard employment contract (also known as the poea-sec); and

2. collective bargaining agreement (or "cba") for union members.

the poea-sec provides for the minimum standard terms and conditions of employment. cbas have higher and better terms and conditions of employment. in exchange, however, union members will have to pay union dues.


reading all these can be quite a chore but the gains are quite BENEFICIAL. always remember that KNOWLEDGE IS YOUR BEST WEAPON!

seafarer definition

what is a seafarer?

the implementing rules of republic act number 10022 define seafarer as:

any person who is employed or engaged in overseas employment in any capacity on board a ship other than a government ship used for military or non-commercial purposes. the definition shall include fishermen, cruise ship personnel and those serving on mobile offshore and drilling units in the high seas. 

from the above definition, it can be deduced that even a janitor on board a cruise ship can be considered a seafarer.

however, those on board ships like logos hope (the world's largest floating bookfair) are not seafarers. why is this? their work is voluntary, they do not get paid. therefore, they are not considered as engaged in overseas employment. 


it is important to note that SEAFARER is the politically correct term as more and more females are entering this field.

grass is greener

let's start of with a poignantly written piece by the eloquent justice cruz:

The Court is not unaware of the many abuses suffered by our overseas workers in the foreign land where they have ventured, usually with heavy hearts, in pursuit of a more fulfilling future. Breach of contract, maltreatment, rape, insufficient nourishment, sub-human lodgings, insults and other forms of debasement, are only a few of the inhumane acts to which they are subjected by their foreign employers, who probably feel they can do as they please in their own country. While these workers may indeed have relatively little defense against exploitation while they are abroad, that disadvantage must not continue to burden them when they return to their own territory to voice their muted complaint. There is no reason why, in their very own land, the protection of our own laws cannot be extended to them in full measure for the redress of their grievances. (RAMON PRIETO, PACIFICO CANILLO, and WILFREDO AZUELA vs. NATIONAL LABOR RELATIONS COMMISSION, AR and SONS INTERNATIONAL DEVELOPMENT CORP., SAUDI SERVICES and OPERATING COMPANY, LTD., and SAUDI ARABIAN MORRISON, G.R. No. 93699 September 10, 1993)

so, is the grass really greener on the other side?