Insubordinaton and seafarer’s dismissal

Insubordinaton and seafarer’s dismissal
By ATTY. DENNIS GORECHO July 23,2018 http://cebudailynews.inquirer.net/185869/insubordinaton-seafarers-dismissal

Many seafarers tend to be blind followers on board the vessel for fear of early repatriation using insubordination as an alleged ground for contract termination.

Insubordination is one of the twenty one (21) offenses which are considered valid grounds for dismissal under the POEA Standard Employment Contract.

Insubordination, 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.
Insubordination includes any of the following acts:

a. any act of disobedience to lawful orders of a superior officer

b. attempting to assault a superior officer

c. assaulting a superior officer/other persons on business with the ship without the use of deadly weapon

d. assaulting a superior officer/other persons on business with the ship with the use of deadly weapon

e. behaving with disrespect towards a superior officer

f. insulting a superior officer by words or deed

g. inciting another to commit insubordination

Not every case of insubordination or willful disobedience by an employee of a lawful work-connected order of the employer or its representative is reasonably penalized with dismissal.

There must be reasonable proportionality between, on the one hand, the willful disobedience by the employee and, on the other hand, the penalty imposed therefor.

For misconduct to be considered serious, it must be of such grave and aggravated character and not merely trivial or unimportant.

Some incidents, which in the normal course of events may occur one way or another, are not synonymous to “insubordination” and “willful disobedience” that are punishable by dismissal as normally erroneously imputed by the companies to seafarers. Questioning the instructions, especially those which are illegal or not in consonance with maritime practice, in most instances, are interpreted as insubordination.

When a seafarer commits such act, 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.

It is well-settled that the burden of proving that the termination of an employee 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.

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.