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REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT


NATIONAL LABOR RELATIONS COMMISSION
NATIONAL CAPITAL REGION
QUEZON CITY
RICARDO C. SORIANO, JR.
Complainant,
-versus-

NLRC NCR CASE No.(M)09-13680-

12
BEFORE: L.A. Corazon C. Borbolla
TECHNOMAR CREW MANAGEMENT
CORP.,
and/or MS. TERESITA B. MALAGIOK,
Respondents.
x------------------------------------------------------------------------x

POSITION PAPER
(for Respondents)
Respondents TECHNOMAR CREW MANAGEMENT CORP., and/or
MS. TERESITA B. MALAGIOK, by their undersigned attorney and to this
Honorable Office submit this Position Paper.

PREFATORY STATEMENT
The law in protecting the rights of the laborer, authorizes neither
oppression nor self-destruction of the employer. While the Constitution is
committed to the policy of social justice and the protection of the working
class, it should not be supposed that every labor dispute will be
automatically decided in favor of labor. Management also has its own rights,
which as such, are entitled to respect and enforcement in the interest of
simple fair play. Out of its concern for those with less privileges in life, the
Supreme Court has inclined more often than not toward the worker and
upheld his cause in his conflict with the employer. Such favoritism, however,
has not blinded the Court to rule that justice is in every case for the
deserving, to be dispensed in the light of the established fact and applicable
law and doctrine. (Mercury Drug v. NLRC, 177 SCRA 580 [1989]).

STATEMENT OF FACTS AND CASE


1

On 5 July 2012, respondent TECHNOMAR CREW MANAGEMENT


CORPORATION (TECHNOMAR) entered into a contract of employment with
complainant SORIANO, for and in behalf of its principal, STARBULK S.A. The
said contract provides, to wit:
xxx
1.1

Duration of Contract

1.2
1.3
1.4
1.5

Position
Basic Monthly Salary
Hours of Work
Overtime

:
:
:
:

1.6
1.7
1.7
1.8
1.9
1.10

Vacation Leave with Pay


Food Allowance
Supplemental Wages
Owners Bonus/Add. allowance
Long Service Bonus
Point of Hire

:
:
:
:
:

5 months plus/minus two months


upon mutual consent of both
parties
Chief Engineer
$1,000.00
48 hrs./week
$600.00
Fixed
OT

US$0.00
$166.00
US$33.00
$789.00
$2,330.00
$82.00
:
Philippines

xxx
Copy of the Employment Contract is hereto attached as Annex 1 hereof.
Thereafter, Complainant Soriano joined the vessel M/V STAR MEGA
and discharged his duties thereat as Chief Officer.
On 1 August 2012 or barely a month from boarding the vessel, the
Master of M/V STAR MEGA, Captain Ampntoul Razzak Chatzouz called to the
bridge the officers of the vessel.

Chief Officer Soriano was also asked by

Captain Chatzouz to make a copy of the log book and deliver the same to the
Chief Engineer. Soriano brazenly rejected the Captains order in front of all
the officers.
Further, Soriano changed his statement three times about an accident
which happened on board. For the first time, he declared that he sent the 3rd
officer to verify watertightiness of the man hole. Second time, he declared
that he sent the 2 O/S to verify the same. Third time, he declared that a rail
was inside the fpt and that the gasket is in very bad condition. The three
officers involved in the said accident are ready to make statements of fact as
witnesses to the complainants refusal to fulfill the masters orders. A copy

of the Masters email report dated 1 August 2012 is hereto attached as


Annex 2 hereof
In view of Sorianos incompetent conduct and blatant disregard of
superior authority, Captain Chatzouz recommended to sign him off before
the sailing of the ship.
The

attached

SEAGOING

PERSONNEL

APPRAISAL

REPORT

dated

21August 2012, showed the inefficiency and insubordination of complainant


in a detailed manner, thus:
1. Evaluation
a. xxx
b. Ability/ responsibility to perform duties
i. Poor- Has little or no ability and has not improved.
Cannot be trusted to work unless supervised.
c. Safety and Environmental Consciousness
i. Poor- No knowledge of safety and environmental
measures. No interest
d. Knowledge of Companys SMSM
i. Poor- Almost not aware of companys smsm
e. Compatibility with companys philosophy
i. Poor- Totally incompatible with companys
philosophy. Not to be re-hired.
f. Communication/co-operation/team spirit
i. Poor- No communication at all.
g. Discipline
i. Fair- Occasionally been in trouble but accepts
discipline in good spirit
h. Integrity
i. Fair- Proved untrustworthy under stress
i. Personal efforts and willingness
i. Poor- Lazy and required constant pushing
j. Leadership
i. Poor- completely lacking control over crew.
Xxx
k. Overall assessment
i. Poor- cannot recommend to be continued in
employment.
2. Additional and supporting remark- Evaluation Comments: xxx
refused masters orders 2 times to make entry in the log book.
Found sleeping during he ballasting operation 30-07-2012
xxx
4. Assessment of Potential
Do you recommend the Seafarer for Re-Employment?
NO
Is the Seafarer ready for Promotion
Does the Seafarer show Potential for further Career
Development

NO
NO
3

Did the Seafarer receive a Written Warning during this


Appraisal Period (should we exclude this?)
NO
xxx
Copy of the Seagoing Personnel Appraisal Report is hereto
attached as Annex 3 hereof

ISSUES
I.
WHETHER OR NOT COMPLAINANT HAS BEEN ILLEGALLY DISMISSED
II.
WHETHER OR NOT COMPLAINANT IS ENTITLED TO HIS MONETARY CLAIMS

ARGUMENTS/DISCUSSION
BASED IN THE MASTERS REPORT
AND
LOGBOOK
EXTRACTS,
COMPLAINANT WAS DISMISSED FOR
A
JUST
CAUSE,
THAT
IS,
INSUBORDINATION AND DIRECTLY
DISOBEYING LAWFUL ORDERS OF A
SUPERIOR OFFICER.
Complainant alleged that he has been illegally dismissed. However, it
must be noted that he committed several offenses on board and such is a
just cause for termination.
Insubordination under Article 282 of the Labor Code is a just cause for
termination of employment, to wit:
xxx
ART. 282. Termination by employer. An employer may
terminate an employment for any of the following causes:

(a) Serious misconduct or willful disobedience


by the employee of the lawful orders of his employer
or representative in connection with his work;
(emphasis supplied)
4

xxx
In the case of Amkor Technology Phil., Inc. vs. Juangco, 503 SCRA 683,
it was held by the Supreme Court, that:
xxx
An employer cannot be compelled to continue with the
employment of an employee guilty of misfeasance or
malfeasance, whose continuance in the service of the employer
is clearly inimical to its interest.
xxx
An employer may terminate an employment for serious misconduct or
willful disobedience by the employee of the lawful orders of his employer or
representative in connection with his work. [San Miguel Corporation vs.
Pontillas, 554 SCRA 50 (2008)].
It cannot be denied that complainant was dismissed for various acts
constituting insubordination which poses treat to the safety of the vessel and
the crew.
Section 17 (d) of the Standard Employment Contract provides:
xxx
SECTION 17. DISCIPLINARY PROCEDURES
xxx
D. Dismissal for just cause may be effected by the Master
without furnishing the seafarer with notice of dismissal if there is
a clear and existing danger the safety of the crew or the vessel.
The Master shall send a complete report to the manning agency
substantiated by witnesses, testimonies and any other
documents in support thereof.
xxx
Most importantly, complainant was given a chance to explain and
defend himself against the charges imputed to him. Moreover, the
complainants Performance Review Report showed his inefficiency towards
his duties as a chief officer.

Settled is the rule that inefficiency and incompetence constitutes as an


analogous cause for dismissal under paragraph (e) of Article 282 of Labor
Code and also sanctioned by Section 33 of the Standard Employment
Contract which is deemed incorporated in every seafarers POEA approved
contract:
xxx
C.

Instances considered analogous causes

1.
The ground of inefficiency is an analogous cause
which may correctly within any of the first four (4) circumstances
mentioned in Article 282 of the Labor Code.
Inefficiency is the inability or failure to attain work quota or
goals, either by failing to complete work within the allotted time
or by producing unsatisfactory results.
2.

Violations of safety rules

(Buiser, et. al. vs. Leogardo, et. al., G.R. No. L-63316,
July 13, 1984)
xxx
(Chans Law of Labor Relations & Termination
of Employment, p. 794)
On the other hand, No. 10 of Section 33 of the Standard Terms and
Conditions Governing the Employment of Filipino Seafarers On Board Ocean
Going Vessels, reads:
xxx
OFFENSES

10.

ADMINISTRATIVE PENALTIES
(shall be imposed by the Master)

xxx

xxx

Incompetence and
inefficiency

Dismissal and to pay cost.

xxx
Be it said that incompetence of a worker generally constitutes a just
cause for dismissal. There is incompetence where the employee lacks the
requisite capacity, skills and knowledge to perform his duties properly and
satisfactorily.

The justification for dismissal on the ground of incompetence is that


conformably to the reasonable expectations of the employer, the law implies
an understanding by an employee at the time of hiring or employment that
he has the requisite capacity, skill or knowledge to perform the duties
contemplated; and if he lacks such capacity, skill or knowledge, there is a
breach of the undertaking justifying termination of employment. (Besingas
Philippine Law on Employee Dismissal, 1979 ed., pp. 469).
Clearly therefore, complainants dismissal was valid being with a just
cause and therefore, this case should be dismissed.

COMPLAINANT
SORIANO
WAS
DISMISSED PURSUANT TO SECTION
17D OF THE POEA STANDARD
EMPLOYMENT CONTRACT.

Being the Chief Officer of M/V STAR MEGA, complainant Soriano holds
one of the key positions on board.

He held a position that requires

competency (emotionally and mentally) and commands respect and moral


ascendancy over his crew. If he, himself shows utter disrespect towards his
superior, he is therefore setting a bad example and this in a way will erode
the basic command chain on board.

This is a precarious situation which

might sow dissension and anarchy on board.

Insubordination under any

given circumstance cannot be tolerated on board an ocean going vessel like


M/V STAR MEGA.
Section 17, Paragraph D of the Standard Employment Contract reads:
xxx
"Section 17.

DISCIPLINARY PROCEDURES

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
any other documents in support thereof."
xxx

The Performance Appraisal Report no less confirmed the complainants


inefficiency and insubordination on board (Annex 3 hereof).

Clearly his

presence on board poses a clear threat to the safety of this officers.


There is no doubt that complainant Sorianos perverse attitude posed a
clear and present danger to the safety of M/V STAR MEGA, and to the lives of
its crew that justifies the application of the above-quoted rule.
In light of the foregoing, it is crystal clear that complainant Soriano was
dismissed for a just and valid cause and pursuant to Section 17 (D) of the
Standard Employment Contract as such he is not entitled to his salary
corresponding to the unexpired portion of his contract.
COMPLAINANT
IS
NOT
ENTITLED
TO
MORAL
AND
EXEMPLARY DAMAGES AS WELL
AS ATTORNEY'S FEES.
Damages is generally defined as the pecuniary compensation,
recompense or satisfaction for an injury sustained, or as otherwise
expressed, the pecuniary consequences which the law imposes for the
breach of some duty or violation of some right.
Respondents, in terminating the employment of complainant, was
spurred by the "instinct" of self-preservation. It was left with no recourse,
otherwise operations and safety on board M/V STAR MEGA would suffer.
In Cosep vs. NLRC, 290 SCRA 704 (1998), the Supreme Court
declared that:
xxx
"Moral damages are recoverable only where the dismissal
was attended by bad faith or fraud, or constituted an act
oppressive to labor or was done in a manner contrary to morals,
good customs or public policy."
xxx

Likewise, in Xentrex Automotive, Inc. vs. Court of Appeals, 291


SCRA 66 (1998), the highest tribunal ruled that:
xxx
"Award of exemplary damages is not warranted where
there is no showing that defendant acted in wanton, fraudulent,
reckless, oppressive, or malevolent manner."
xxx
Thus, it is clear that in view of aforecited rulings of the Supreme Court
and the facts obtaining in this case, complainant Soriano is not entitled to
moral and exemplary damages. Neither is he entitled to attorney's fees
because "attorney's fees are not recoverable where there is no sufficient of
bad faith on the part of respondents" (Lopez vs. NLRC, 297 SCRA 508).

PRAYER
WHEREFORE premises considered, it is most respectfully prayed that
judgment be rendered dismissing the instant complaint.
Other reliefs just and equitable in the premises are likewise prayed for.
Manila for Quezon City, 27 November 2012.

MARILYN P. CACHO & ASSOCIATES


Counsel for the Respondents
Suite 401 J & T Building
3894 R. Magsaysay Blvd.,
Sta. Mesa, Manila
By:
MARILYN P. CACHO-DOMINGO
PTR No. 0342515, Manila, 1-02-2012
IBP No. 864222, Manila, 1-03-2012
Roll of Attorneys No. 32254 / 5-2-83
Page No. 451, Book No. XIII
Tel No. 716-23-07 / Fax No. 713-84-45
E-mail Address: cacholaw1990@yahoo.com.ph
MCLE Certificate of Compliance No. IV-0007608
Issued on: September 7, 2012