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SUPREME COURT DECISIONS
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FIRST DIVISION
[
G.R. No. 105396.
STOLT-NIELSEN MARINE SERVICES (PHILS.), INC. and STOLT-NIELSEN, INC., Petitioners, v. NATIONAL LABOR RELATIONS COMMISSION, PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION and EDUARDO MONSALE, Respondents.
D E C I S I O N
VITUG, J.:
In a petition for certiorari, Stolt-Nielsen Marine Services (Phils.), Inc., and Stolt-Nielsen Inc., seek to annul and set aside the resolutions of 27 January 1992 and 25 March 1992 1 of the National Labor Relations Commission ("NLRC") affirming the decision of 20 April 1990 2 of the Philippine Overseas Employment Administration ("POEA"), in POEA Case No. (M) 89-03-208, which has held both petitioners (herein) jointly and severally liable for various monetary awards in favor of private respondent, Eduardo S. Monsale, their hired seaman.
Petitioner Stolt-Nielsen Marine Services (Phils.), Inc. (SNMSI
for brevity), on
On
On 29 January 1989, a Sunday and his scheduled rest day, private respondent
was ordered to clean the deck cargo tank using "toline" chemical, a toxic
substance detrimental to the respiratory system. He was not provided with a protective
mask. The risk to his health
notwithstanding, private respondent again followed Captain Erkiagas
order. He worked for seventeen (17)
hours from
Due to his exposure to the pungent chemical, private respondent
suffered from chest pains and dizziness.
On
"0830 Fitter Eduardo Monsale and Alfonso Garino have refused to work in the tank cleaning when ordered to do so.
"0845 They are informed of the above entry in the log book.
"0845 They comment that they are not refusing to go to work but only to work in the tanks. They are informed their contract is terminated as to today, for repeated disobedience to lawful orders of their superiors." [4cräläwvirtualibräry
On
On
The POEA, ruling in favor of private respondent, held:
"WHEREFORE, premises considered, judgment is hereby rendered ordering respondents Stolt Nielsen Marine Services Philippines and Stolt Nielsen, Inc. to pay jointly and severally complainant's Eduardo S. Monsale the following:
"1. FIVE THOUSAND SIX HUNDRED SIXTEEN US DOLLARS (US$5,616.00) or its equivalent in Philippine Currency at the time of actual payment, representing complainants salaries for the unexpired portion of his employment contract;
"2. FOUR HUNDRED NINETY NINE AND 20/100 US DOLLARS (US$499.20) or its equivalent in Philippine Currency at the time of actual payment, representing complainants unremitted salary for the month of January 1989; and
"3 TWO THOUSAND TWO HUNDRED FIFTY US DOLLARS (US$2,250.00) or its equivalent in Philippine Currency at the time of actual payment, representing complainants fixed overtime pay.
"All other claims are dismissed for lack of merit.
"SO ORDERED." [5cräläwvirtualibräry
On appeal, the NLRC, in its resolution of
In the petition for certiorari, instant, several submissions have been made but, as so encapsulized by the Solicitor General, the controversy really revolves around the following issues:
"I WHETHER OR NOT PRIVATE RESPONDENT WAS ILLEGALLY DISMISSED.
"II WHETHER OR NOT PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AWARDING PRIVATE RESPONDENT FIXED OVERTIME (PAY) IN THE AMOUNT OF US$2,500.00.
"III WHETHER OR NOT THE PRESENT CONTROVERSY SHOULD HAVE BEEN REFERRED TO THE GRIEVANCE COMMITTEE PROVIDED UNDER THE COLLECTIVE BARGAINING AGREEMENT." [6cräläwvirtualibräry
It is averred that public respondents have failed to aptly consider petitioners evidence showing private respondents repeated refusal to obey the orders of the master," amounting "to serious misconduct and/or gross insubordination or disobedience," 7 to be the real cause for the questioned dismissal. The argument is anchored on the evidentiary value of the log book entries, 8 and in the holdings of the Court in Haverton Shipping Ltd. vs. NLRC 9 and Abacast Shipping and Management Agency, Inc. vs. NLRC . 10cräläwvirtualibräry
It should be stressed at the outset that the employer has the burden of proving that the dismissal of an employee is for a just cause. 11 In an attempt to discharge this burden, petitioners have merely presented, by way of annexes to their position paper before the POEA and reply to private respondents position paper, copies of log book abstracts. In Abacast Shipping, the Court has ruled that entries in the ships log book are prima facie evidence of the incident only if the logbook itself containing such entries or photocopies of the pertinent pages thereof are represented in evidence; hence
"The log book is a respectable record that can be relied upon to authenticate the charges filed and the procedure taken against the employees prior to their dismissal. Curiously, however, no entry from such log book was presented at all in this case. What was offered instead was the shipmasters report, which was later claimed to be a collation of excerpts from such book.
"It would have been a simple matter, considering the ease of reproducing the same, to make photocopies of the pertinent pages of the log book to substantiate the petitioners contention. Why this was not done is something that reasonably arouses the curiosity of this Court and suggests that there probably were no entries in the log book at all that could have proved the alleged offenses of the private respondents." [12cräläwvirtualibräry
The Court, no different from public respondents, finds it hard to believe, let alone to conclude, that private respondent has been guilty of willful disobedience to warrant dismissal. Willful disobedience of the employers lawful order envisages the concurrence of at least two requisites: (a) The employees assailed conduct must have been intentional and characterized by a "wrongful and perverse attitude," and (b) the order violated must have been reasonable, lawful, and made known to the employee and should pertain to the duties which he has been engaged to discharge. 13 It is possible that private respondent may have indeed shown some reluctance to the captains order; nevertheless, he ultimately did comply with the orders of the captain. Not the least insignificant is that the Captains assignments have not been the contractually assigned tasks of private respondent.
Petitioners call attention to the "mutual assistance" proviso of the collective bargaining agreement; viz:
"Sec. 6. Mutual assistance shall be exercised by all officers/ratings regardless of rank and position assisting each other in the working of the vessel both in engine room, deck and tank cleaning included. (sic)" [14cräläwvirtualibräry
As has been so correctly pointed out by the POEA, however, the above provision, falling under the general item, "Working Hours," is primarily for properly computing extra compensation, and it is not intended to coerce, compel, or force the crew members to perform jobs other than what they have been contracted for. 15 The Court, even then, shares POEAS observation that
"Respondents CBA provision on mutual assistance should be applied with leniency. If respondents defense will be given credence, then the job designations in the employment contract will be rendered inutile. All other members of the crew can be requested to perform jobs other than what they are contracted for any if they refuse, they could be terminated for insubordination. Such defense, definitely, cannot be allowed for this is in square defiance (of) the Constitutional mandate of protection to labor." [16cräläwvirtualibräry
Providing assistance to other members of the crew in their jobs on board a vessel when needed or required is violative neither of labor laws nor of the employment contract except when such assistance becomes regularly imposed.
In his case, private respondent was made to perform various tasks other than his contractually assigned work from the very moment he boarded the vessel.
Even when an employee is found to have transgressed the employers rules, in the actual imposition of penalties upon the erring employee, due consideration must still be given to his length of service and the number of violations committed during his employ. 17 The penalty must in no case be unduly and grossly disproportionate. 18cräläwvirtualibräry
The law so requires, as a vital component of due process, an observance of the twin requirements of notice and hearing before the dismissal of an employee.
Thus, it could not be enough for his dismissal that private respondent was "advised of his infractions and given the opportunity to explain his side" after he had supposedly "refused to assist in the berthing and unberthing maneuvers," and that when he refused to clean the cargo tank, the "pertinent portion of the CBA on mutual assistance was read to him." 19 The procedure was far short of the legal mandate.
The Court has once said:
"On the issue of due process x x x, the law requires the employer to furnish the worker whose employment is sought to be terminated a written notice containing a statement of the cause or causes for termination and shall afford him ample opportunity to be heard and to defend himself with the assistance of a representative. Specifically, the employer must furnish the worker with two (2) written notices before termination of employment can be legally effected: (a) notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (b) the subsequent notice which informs the employee of the employers decision to dismiss him." [20cräläwvirtualibräry
In another case 21 the Court has explained:
"An employee cannot just be separated from his employment without according him his constitutional right of due process, consisting of the proper notice and hearing. No notice of any form, apprising of the proffered charges, was served on petitioner, much less was a hearing conducted wherein he could have defended himself. The fact that the defense interposed at the hearing would be outlandish or pure nonsense, is not a ground to cut short the procedure for dismissal. As this Court ruled in Seahorse Maritime Corporation vs. National Labor Relations Commission , 173 SCRA 390 (1989), that before a seaman can be dismissed and discharged from the vessel, it is required that he be given a written notice regarding the charges against him and that he be afforded a formal investigation where he could defend himself personally or through a representative. Fear of any possible trouble that might be caused by the dismissed employee on board the vessel upon being informed of his dismissal is not a reason to dispense with the requirement." 22cräläwvirtualibräry
We agree with petitioners, however, that respondent is not entitled to the overtime pay awarded to him by the POEA. The ruling in National Shipyards and Steel Corporation vs. CIR and Malondras 23 is in point, and there the Court, through Justice J.B.L. Reyes, has said:
"We can not agree with the Court below that respondent Malondras should be paid overtime compensation for every hour in excess of the regular working hours that he was on board his vessel or barge each day, irrespective of whether or not he actually put in work during those hours. Seamen are required to stay on board their vessels by the very nature of their duties, and it is for this reason that, in addition to their regular compensation, they are given free living quarters and subsistence allowances when required to be on board. It could not have been the purpose of our law to require their employers to pay them overtime even when they are not actually working: otherwise sailor on board a vessel would be entitled to overtime for sixteen hours each day, even if he had spent all those hours resting or sleeping in his bunk, after his regular tour of duty. The correct criterion in determining whether or not sailors or not sailors are entitled to overtime pay is not, therefore, whether they were on board and can not leave ship beyond the regular eight working hours a day, but whether they actually rendered service in excess of said number of hours." [24cräläwvirtualibräry
Anent the matter on jurisdiction, the issue was mooted by petitioners active participation in the proceedings below. In Marquez vs. Secretary of Labor , 25 the Court said:
"x x x. The active participation of the party against whom the action was brought, coupled with his failure to object to the jurisdiction of the court or quasi-judicial body where the action is pending, is tantamount to an invocation of that jurisdiction and a willingness to abide by the resolution of the case and will bar said party from later on impugning the court or bodys jurisdiction." [26cräläwvirtualibräry
WHEREFORE, the herein questioned resolutions of the NLRC are AFFIRMED subject to the modification that the award of overtime pay in the amount of Two Thousand Two Hundred Fifty U.S. dollars (US$2,250.00) is deleted. No costs.
SO ORDERED.
Padilla, Bellosillo, Kapunan, and Hermosisima, Jr., JJ., concur.
Endnotes:
1 Both penned by Commissioner Domingo H. Zapanta and concerred in by Presiding Commissioner Edna Bonto-Perez and Commissioner Rustico L. Diokno.
2 Penned by Deputy Administrator and Officer-in-Charge Manuel G. Imson.
3 A collective agreement entered into by the company and the seamen increased private respondents benefits as follows: basic monthly pay of US$624.00; fixed overtime pay of US$250.00; vacation leave pay of US$125.00 a month; longevity pay of US$60.00 per month, and other related benefits (Rollo, p. 233).
4 Ibid., p. 93.
5 Ibid ., pp. 38-39.
6 Ibid ., p. 121.
7 Ibid ., p. 12.
8 Ibid ., p. 18.
9 135 SCRA 685.
10 162 SCRA 541.
11 Molave Tours Corporation v. NLRC, 250 SCRA 325; Magnolia Corporation v. NLRC, 250 SCRA 332.
12 162 SCRA 541, 544-545.
13 Nuez v. NLRC, 239 SCRA 518; San Miguel Corporation v. Ubaldo, 218 SCRA 293, 300 citing Gold City Integrated Port Services, Inc. v. NLRC, 189 SCRA 811.
14 Rollo , p. 267.
15 Rollo , p. 37.
16 Ibid.
17 Tanduay Distillery Labor Union v. NLRC, 239 SCRA 1.
18 See Radio Communications of the Philippines, Inc. v. NLRC, 223 SCRA 656; Magnolia Corporation v. NLRC, supra.
19 Petition, p. 17.
20 Jones v. NLRC, 250 SCRA 668, 674-675.
21 Reta v. NLRC, 232 SCRA 613.
22 At pp. 617-618.
23 113 Phil. 870; reiterated in Cagampanan v. NLRC, 195 SCRA 533.
24 At p. 875.
25 171 SCRA 337.