Gambling as a ground for seafarer's dismissal

Gambling as a ground for dismissal
ATTY. DENNIS GORECHO |December 03,2018 https://cebudailynews.inquirer.net/206376/gambling-as-a-ground-for-dismi...

Gambling is one of the twenty one (21) offenses which are considered valid grounds for dismissal under the Philippine Overseas Employment Administration-Standard Employment Contract (POEA-SEC), which covers any of the following acts:

a. gambling which results in fighting or any incident as to upset the harmonious relationship on board the ship;
b. any other form of gambling which is not purely recreational.

Filipino seafarers have a penchant for gambling even at a very early age. They have the tendency to play or gamble anytime and anywhere. Family celebrations and funeral wakes are never complete without mahjong, poker, bingo sessions. pusoy, pekwa, etc. This fondness for gambling is carried over to sea by Filipino seafarers.

Gambling can have relaxational and recreational purposes for Filipino seafarers if properly regulated and managed. They should gamble only with their excess money; thus the bets should not be large. The officers should fix and delimit the site or area and time wherein the gambling games may be played. Troubles arising through gambling must be prevented by the officers by their proper supervision of it.

Recreational gambling or social gambling refers to someone who gambles for fun. It does not result in any negative consequences for the person in terms of time and money spent. They play occasionally, taking account of their financial limits and knowing how to end the game in a controlled way. They accept that they might lose money and do not play on in order to recover their losses.

Not all gambling can lead to one’s termination. The Court stressed in Hongkong Shanghai Banking Corporation vs. NLRC (260 SCRA 49) that “a grave injustice is committed in the name of justice when the penalty imposed is grossly disproportionate to the wrong committed. To be lawful, the cause for termination must be a serious and grave malfeasance to justify the deprivation of a means of livelihood.”

There is no question that the employer has the inherent right to discipline, including that of dismissing its employees for just causes. This right is, however, subject to reasonable regulation by the State in the exercise of its police power. The finding of the NLRC that an employee violated company rules and regulations is subject to scrutiny by the Court to determine if the dismissal is justified and, if so, whether the penalty imposed is commensurate to the gravity of the offense (Associated Labor Unions-TUCP vs. NLRC, 302 SCRA 708).

When a seafarer commits such acts of unwanted gambling, 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 “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 (Skippers Pacific, Inc. v. Mira 440 Phil. 906 (2002)

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.

The burden of proving that the termination of 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. 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 (Maersk-Filipinas Crewing, inc., vs. Avestruz,, g.r. no. 207010 February 18, 2015)