CENTENNIAL TRANSMARINE, G.R. No. 180719
INC., CENTENNIAL MARITIME
SERVICES CORPORATION
AND/OR B+H EQUIMAR
Petitioners, Present:
Ynares-Santiago, J. (Chairperson),
- versus - Austria-Martinez,
Chico-Nazario,
Nachura, and
Reyes, JJ.
RUBEN G.
DELA CRUZ,
Respondent. Promulgated:
August 22, 2008
x
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x
YNARES-SANTIAGO, J.:
This petition for review
on certiorari assails the August 31, 2007 Decision[1]
of the Court of Appeals in CA-G.R. SP No. 91054 reversing the Decision of the
National Labor Relations Commission and finding that respondent Ruben G. Dela
Cruz was illegally dismissed from service, as well as the November 16, 2007
Resolution[2]
denying the motion for reconsideration.
On May 9, 2000, petitioner Centennial Transmarine, Inc.,
for and in behalf of its foreign principal, petitioner Centennial Maritime
Services, Corp., hired respondent Dela Cruz as Chief Officer of the oil tanker
vessel “MT Aquidneck,” owned by petitioner B+H Equimar, Singapore, Pte. Ltd.,
for a period of nine months.
On
Respondent alleged that while
the vessel was docked in
On
Upon arrival in
On the other hand,
petitioner alleged that respondent was relieved of his functions as Chief
Officer due to his inefficiency and lack of job knowledge. Capt. Kowalewski allegedly informed them of
respondent’s lack of experience in tanker operations which exposed the vessel
and its crew to danger and caused additional expenses. Petitioners allegedly advised respondent to
take a refresher course in order to facilitate his deployment to another
vessel. However, instead of taking a
refresher course, respondent filed a case for illegal dismissal.
On
Respondent appealed to the National Labor Relations
Commission which rendered its Decision[7]
on
Respondent filed a motion
for reconsideration but it was denied.[8] Hence, he filed a petition for certiorari
before the Court of Appeals which rendered the herein assailed Decision on
WHEREFORE, the petition is granted and the Decision dated
Private respondents are ordered to pay petitioner the
amount of unpaid salaries from the time of his dismissal on September 22, 2000
up to the expiration of the term of his employment contract, plus moral damages
of P50,000.00, exemplary damages of P50,000.00 and attorney’s fees of 10% of
the aggregate monetary reward.
SO
ORDERED.[9]
According to the Court of Appeals, petitioners, as
employers, have the burden of proof to show by substantial evidence that
respondent’s employment was validly terminated; that for a dismissal based on
loss of trust and confidence, it is incumbent to establish that the employee
holds a managerial position; that petitioners failed to adduce evidence showing
that respondent was a managerial employee; that the log book entries of Capt.
Kowalewski and the letter dated September 1, 2000 should be disregarded for
being self-serving; that respondent was not apprised of the cause for his
dismissal; that petitioners failed to observe the two-notice rule hence the
dismissal was illegal; consequently, respondent is entitled to his salaries for
the unexpired portion of the employment contract, full reimbursement of
placement fee, moral and exemplary damages and attorney’s fees.
Petitioners filed a
motion for reconsideration but it was denied by the appellate court on
Hence, the instant petition raising the following issues:[10]
I
WHETHER OR NOT THIS
II
WHETHER OR NOT THE POSITION OF CHIEF OFFICER OF AN OCEAN
GOING VESSEL IS A MANAGERIAL POSITION OR ONE OF TRUST AND CONFIDENCE
III
WHETHER OR NOT ENTRIES IN THE OFFICIAL LOGBOOK OF A VESSEL
SHOULD NOT BE GIVEN WEIGHT FOR BEING SELF-SERVING
IV
WHETHER OR NOT LACK OF SKILL OR INCOMPETENCE IN HANDLING AN
OIL TANKER VESSEL MAY BE CONSIDERED AS AN ANALOGOUS CAUSE FOR A VALID
TERMINATION OF EMPLOYMENT OF A CHIEF OFFICER
V
WHETHER OR NOT A CHIEF OFFICER OF AN OIL TANKER VESSEL
REQUIRED TO EXPLAIN WHY HE SHOULD NOT BE RELIEVED FOR BEING INCOMPETENT WAS
DEPRIVED OF DUE PROCESS OF LAW
VI
WHETHER OR NOT MORAL DAMAGES AND ATTORNEYS FEES MAY BE
AWARDED WITHOUT A CLEAR SHOWING THAT THE DISMISSAL OF AN EMPLOYEE WAS ATTENDED
WITH BAD FAITH
The petition lacks merit.
Petitioners allege loss
of trust and confidence due to incompetence as the ground for respondent’s
dismissal.[11] Loss of trust and confidence is premised on
the fact that the employee holds a position whose functions may only be
performed by someone who has the confidence of management.[12] Such employee may be managerial or
rank-and-file, but the nature of his position determines the requirements for a
valid dismissal.
With respect to a
managerial employee, the mere existence of a basis for believing that such
employee has breached the trust of his employer would suffice for his
dismissal. Proof beyond reasonable doubt
is not required, only substantial evidence which must establish clearly and
convincingly the facts on which the loss of confidence rests.[13]
Article 627 of the Code of Commerce defines the Chief Mate,
also called Chief Officer or Sailing Mate, as “the second chief of the vessel,
and unless the agent orders otherwise, shall take the place of the captain in
cases of absence, sickness, or death, and shall then assume all his powers,
duties, and responsibilities.” A Chief
Officer, therefore, is second in command, next only to the captain of the
vessel.
Moreover, the Standards
of Training, Certification and Watchkeeping for Seafarers 1978 (STCW ’78), to
which the
In Association of Marine Officers and Seamen of Reyes and Lim Co. v.
Laguesma,[14] the
Court held that the Chief Mate is a managerial employee because the said
officer performed the functions of an executive officer next in command to the
captain; that in the performance of such functions, he is vested with powers or
prerogatives to lay down and execute management policies.
The exercise of
discretion and judgment in directing a ship’s course is as much managerial in nature
as decisions arrived at in the confines of the more conventional board room or
executive office. Important functions
pertaining to the navigation of the vessel like assessing risks and evaluating
the vessel’s situation are managerial in nature.[15]
Thus, respondent, as
Chief Officer, is a managerial employee; hence, petitioners need to show by
substantial evidence the basis for their claim that respondent has breached
their trust and confidence.
Petitioners’ basis for
dismissing respondent was the alleged entry by Captain Kowalewski in the ship’s
logbook regarding respondent’s inexperience and inefficiency. A ship’s log/logbook is the official record of
a ship’s voyage which its captain is obligated by law to keep wherein he
records the decisions he has adopted, a summary of the performance of the
vessel, and other daily events. A
logbook is a respectable record that can be relied upon when the entries
therein are presented in evidence.
In the instant case,
however, respondent correctly pointed out that the issue is not whether an
official logbook entry is acceptable in evidence, but whether a document
purporting to be a copy of a logbook entry has been duly established to be
authentic and not spurious.[16]
The document dated
Name of the ship: Aquidneck
Port of registry:
Official Number: 706596
Gross tonnage: 23709
Register (net) tonnage: 8517
Page: OFFICIAL LOG of the m/t Aquidneck
Entries required by Regulations made under Section 143 of
the Merchant Shipping Act 1976
Date of the occurrence: 06.09.00. Pace: At Sea.
Date of entry: 06.09.00
It was found today on
Signed: S. Kowalewski, Master[17]
In Wallem Maritime Services, Inc. v. National Labor Relations Commission,[18]
citing Haverton Shipping Ltd. v. National
Labor Relations Commission,[19]
the Court ruled that a copy of an
official entry in the logbook is legally binding and serves as an exception to
the hearsay rule. In the said case, however,
there was no controversy as to the genuineness of the said entry and the authenticity
of the copy presented in evidence.
In the instant case, respondent
has consistently assailed the genuineness of the purported entry and the
authenticity of such copy. He alleged that
before his repatriation, there was no entry in the ship’s official logbook regarding
any incident that might have caused his relief;[20]
that Captain Kowalewski’s signature in such purported entry was forged.[21] In support of his allegations, respondent
submitted three official documents[22]
bearing the signature of Capt. Sczepan Kowalewski which is different from the
one appearing in Annex E. Thus, it was
incumbent upon petitioners to prove the authenticity of Annex E, which they failed
to do. Likewise, the purported report of
Capt. Kowalewski dated
Although technical rules
of evidence do not strictly apply to labor proceedings, however, in the instant
case, authentication of the above-mentioned documents is necessary because
their genuineness is being assailed, and since petitioners offered no
corroborating evidence. These documents
and their contents have to be duly identified and authenticated lest an
injustice would result from a blind adoption of such contents.[26] Thus, the unauthenticated documents relied
upon by petitioners are mere self-serving statements of their own officers and
were correctly disregarded by the Court of Appeals.
This Court notes that
during the initial proceedings of the case, petitioners contend that respondent
was not dismissed but only temporarily relieved from his position due to lack
of skill or incompetence. However, as
the case progressed, petitioners claimed that respondent was dismissed from
employment because he committed certain violations of the vessel’s safety
rules. This is objectionable; a party
should decide early what cause or defense he is going to advance; he cannot
change his theory in the latter stage of the proceeding because it is contrary
to the rules of fair play, justice and due process.[27]
Moreover, records show that respondent was not afforded due
process. For officers and crew who are
working in foreign vessels involved in overseas shipping, there must be
compliance with the applicable laws on overseas employment as well as with the
regulations issued by the Philippine Overseas Employment Administration (POEA),
such as those embodied in the Standard Contract for Seafarers Employed Abroad
(Standard Contract).[28] Section 17 of the Standard Contract provides:
SEC. 17. DISCIPLINARY PROCEDURES. – The Master shall comply
with the following disciplinary procedures against an erring seafarer:
A. The Master
shall furnish the seafarer with a written notice containing the following:
1. Grounds for
the charges as listed in Section 33 of this Contract or analogous act
constituting the same;
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. These procedures must be duly
documented and entered into the ship’s logbook.
C. If after
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, with copies furnished to the Philippine Agent.
D. Dismissal
for just cause may be effected by the Master without furnishing the seafarer with
a notice of dismissal if there is a clear and existing danger to the safety of
the crew or the vessel. The Master shall
send a complete report to the manning agency substantiated by witnesses,
testimonies, and other documents in support thereof.
Except for the
self-serving allegation that respondent was required to explain why he should
not be relieved for being incompetent, petitioners offered no proof to show that
they furnished respondent a written notice of the charges against him, or that there
was a formal investigation of the charges, or that respondent was furnished a written
notice of the penalty imposed upon him. Respondent
was verbally ordered to disembark the vessel and was repatriated to the
Respondent’s dismissal was
not for just cause and without due process. He is therefore entitled to be paid his
salaries for the unexpired portion of his employment contract. However, the payment of overtime pay and leave
pay should be disallowed in light of our ruling in Cagampan v. National Labor Relations Commission,[29]
to wit:
[T]he rendition of overtime work and the submission of
sufficient proof that said was actually performed are conditions to be
satisfied before a seaman could be entitled to overtime pay which should be
computed on the basis of 30% of the basic monthly salary. In short, the
contract provision guarantees the right to overtime pay but the entitlement to
such benefit must first be established.
In the same vein, the claim for the day's leave pay for the
unexpired portion of the contract is unwarranted since the same is given during
the actual service of the seamen.
Pursuant to Republic Act No. 8042, or the Migrant Workers
and Overseas Filipino Act, respondent is also entitled to full reimbursement of
his placement fee with interest at 12% per annum. Section 10 thereof provides:
SECTION 10. Money
Claims –
x x x x
In case of
termination of overseas employment without just, valid or authorized cause as
defined by law or contract, the worker shall be entitled to the full
reimbursement of his placement fee with interest at twelve percent (12%) per
annum, x x x.
We affirm the award of
moral damages in the amount of P50,000.00, exemplary damages in the amount of
P50,000.00, and attorney’s fees at the rate of 10% of the aggregate monetary
award, the dismissal having been effected without just cause and without
observance of due process.
WHEREFORE, in
view of the foregoing, the petition is DENIED. The August 31, 2007 Decision of the Court of
Appeals in CA-G.R. SP No. 91054 and its November 16, 2007 Resolution are AFFIRMED with MODIFICATION. Petitioners Centennial Transmarine, Inc., Centennial
Maritime Services, Corp., and B+H
SO
ORDERED.
CONSUELO
YNARES-SANTIAGO
Associate Justice
WE
CONCUR:
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
MINITA V. CHICO-NAZARIO ANTONIO EDUARDO B. NACHURA
Associate
Justice Associate Justice
RUBEN T. REYES
Associate Justice
ATTESTATION
I
attest that the conclusions in the above decision were reached in consultation
before the case was assigned to the writer of the opinion of the Court’s
Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant
to Section 13, Article VIII of the Constitution and the Division Chairperson’s
Attestation, it is hereby certified that the conclusions in the above Decision
were reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
REYNATO
S. PUNO
Chief Justice
[1] Rollo, pp.
48-59; penned by Associate Justice Fernanda Lampas Peralta and concurred in by
Associate Justices Edgardo P. Cruz and Normandie B. Pizarro.
[2]
[3] Records, p. 16.
[4]
[5]
[6] Rollo, pp.
89-107.
[7]
Records, pp. 180-188; penned by Commissioner Vicente S.E. Veloso and concurred
in by Presiding Commissioner Roy V. Señeres and Commissioner Romeo L. Go.
[8]
[9] CA
rollo, p. 246.
[10] Rollo, pp. 17-18.
[11] CA rollo, p. 146.
[12] Mercury Drug Corp.
v. Serrano, G.R. No. 160509,
[13] Velez v.
Shangri-La’s Edsa Plaza Hotel, G.R. No. 148261, October 9, 2006, 504 SCRA
13, 26.
[14] G.R. No. 107761,
[15]
[16] Rollo, p. 163.
[17]
[18] 331 Phil. 476, 486 (1996).
[19] 220 Phil. 356, 362 (1985).
[20] Records, p. 16.
[21]
[22] Respondent’s Seafarer’s Identification and Record Book,
Certificate of Sea Service, and Certification on the Pressure-Testing of Deck
Cargo Lines and Manifold Valves.
[23] Rollo, pp.
64-65. The report reads:
M/t
“Aquidneck” Date
01st Sept.2000
To:
The Managing Director
B+H Equimar
CC:
Fleet Personnel Department
Subject:
Ch.Officer Mr. Ruben Dela Cruz Performance.
I
took command of m/t Aquidneck on
The
previous master told me that Ch. Officer has a very little experience on the
tankers but he learns fast, he needs only a little guidance. The full assistance was given to Mr. R. Dela
Cruz but hardly he even asked for assistance or guidance.
Same
time I was watching his performance providing any assistance that was
required. Ch.Eng. was also ready to
assist and to give any advice required on technical aspects.
The
following is the statement of facts in respect of Ch.Off. performance.
1.
Loading
plan and stress calculations were not prepared as per requirement. Not all sequences of discharging/loading were
covered. Lacks of signature of the
officers were only minor omission.
2.
Not all
cargo v/vs were closed in pump room prior loading.
3.
Have
asked Ch.Off. to explain cargo pumps emergency shut off system. Being three months on board he was still not
aware of location of emergency shut off.
4.
He
accepted stowage of paint inside of accommodation (in gymnasium) instead in
paint locker.
5.
He was
asked if vessel has MMC sampler. He was
unable to give a right answer. He said
that vessel do not have one. It was
located later on in Pump man workshop.
This almost cased extra expenses for the company.
6.
He does
not consult technical work with Ch.Eng.
7.
During
discharge in
8.
Upon
completion of discharge in Long Beach Berth 77 he was unable to drain cargo
manifolds causing oil spill to manifold drip tray. Excessive time was used for disconnecting
causing air pollution. He shows lack of
understanding of basic physics. Liquid
can not run upward. He did not opened
drain valves on manifolds. Only cargo
tank and manifold cross over valves were opened, therefore it took so long to
disconnect manifolds.
9.
During
subsequent tank cleaning he was not stripping washed tanks simultaneously,
allowing build up wash waters in cargo tanks.
This caused substantial delay in tank cleaning and greater fuel
consumption.
10.
He was
attempting to wash cargo tanks having 2-kg pressure in main tank cleaning line.
11.
The
understanding of suction gauge indication or pump suction creates some problems
to him.
12.
The
problem of fault finding is almost non existent.
13.
During
tank ventilation it seems that he do not understand basic methods of tanker
operation. Ventilation by dispersment
was mixed with dilution methods. Which
one was which and how to apply them he does not understand. As the example he was trying to ventilate 10
tanks at the same time. In this case the
dilution method only could be used. The worst
of that he do not like to consult any operation or he does not understand the
needs for consultation. He is convinced
that he knows everything.
14.
The
vetting surveyor inspecting the vessel in
15.
Supervision
and assistance given has a very little effect as he has his own ideas how to
work and coming with not accurate information.
16.
On the
positive side he is good in paper work and can work long hours without
complain.
The
following are true reconciliation of Ch.Off. Performance. Without any prejudice and in spite of all
assistance given to Mr. Ruben Dela Cruz it is understood that at present state
of his knowledge Mr. Ruben Dela Cruz should take a refreshment course of tanker
operation first. The new Ch. Off should
join the vessel ASAP to take over cargo related duties.
Mr.
Ruben Dela Cruz should be relieved from his duties as the Ch.Off. to avoid
delays in
operation
and extra unnecessary expenses for the company.
Capt.
S. Kowalewski
Master
m/t “Aquidneck”
[24]
“On
06th Sept.2000 while vessel was bound for
[25]
“During
Loading Gasoline in Lake Charles No. 8C cargo tank was over presurised creating
potential risk of tank rupture, explosion and oil pollution.
Loading
into tank 8C was immediately stopped and pressure from the tank was released.
After
investigation it has been found that inert gas vent line into tank 8C was
blanked off and blank was not removed prior commencement of loading. Mr. Ruben Dela Cruz told me that he forgot to
inform me about.
During
inspection of pump room it was found that cargo is leaking from holed section
of Stripping pump No 1 and Eductor No. 2.
On investigation pumpman Mr. R. Alvarez told me that he informed Mr.
Ruben Dela Cruz about holed in cargo system during tank washing prior arrival
Lake Charles.
Cargo,
deck maintenance and safety papers were totally disorganized. Safety equipment was wrongly tested and
calibrated by Mr. Ruben Dela Cruz and therefore unsafe to use.”
[26] Wallem Maritime
Services, Inc. v. National Labor Relations Commission, supra note 18 at 486.
[27] Dalisay
v. Mauricio, Jr., G.R. No. 148893,
[28] Timoteo B. Aquino and Ramon Paul L. Hernando, Notes and
Cases on the Law of Transportation and Public Utilities (
[29] Legahi
v. National Labor Relations Commission, G.R. No. 122240,
[30] Skippers United
Pacific, Inc. v. National Labor Relations Commission, G.R. No. 148893,