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Mutiny as ground for dismissal

Column box-Dennis Gorecho

Mutiny has become a common plot for blockbusters like the 1997 American historical drama film directed by Steven Spielberg.

The film centered on the 1839 revolt aboard the Spanish-owned ship La Amistad during which Mende tribesmen abducted for the slave trade managed to gain control of their captors’ ship.

After their capture off the coast of Long Island, an international legal battle followed on the issue whether the Mendes are slaves or legally free. The case was ultimately resolved by the US Supreme Court in 1841.

Mutiny comes from an old verb, mutine, which means “revolt.” It is defined as conspiracy of overt act of defiance, oppose or attack upon ship authority by two or more seafarers subject to such authority.

Mutiny is regarded as a most serious offense, especially aboard ships at sea.

Wide disciplinary powers are given to the commanding officer because of the general view that the safety of the ship depends upon the submission of all persons on board to the will of the captain.

However, in some instances, Filipino seafarers who aggressively assert their rights are wrongfully accused of commission of fictitious offenses like mutiny, leading to the early termination of their contract.

Seafarers usually are adamant in standing for their rights for fear of retaliation from the company or its officers on board, including dismissal based on fabricated grounds. Their concerted action to question in some cases are viewed as insubordination, desertion, mutiny or attempt to desert the vessel or refusal to sail with the vessel.

The Maritime Labor Convention of 2006 (MLC 2006) recognizes the seafarers’ rights to decent conditions of work on almost every aspect of their working and living conditions including, among others, hours of work or rest, payment of wages, paid annual leave, repatriation at the end of contract, onboard medical care, accommodation, food and catering, health and safety protection and accident prevention.

The Supreme Court touched upon the issue of mutiny on the illegal dismissal case of NFD International Manning Agents v. Ilagan (GR   165389 October 17, 2008).

In their defense, the company argued that the seafarers were validly and lawfully dismissed from their employment for their acts of “mutiny, insubordination, desertion/attempting to desert the vessel and conspiracy among themselves together with the other Filipino seafarers in refusing and or failing to join M/T Lady Helene in its next trip or destination to Mauritius without just and valid cause.”

The case emanated from the disagreement between the foreign captain and the Filipino chief engineer when the latter refused to resume his work in the Engine Room wherein the other Filipino crew sided with the Filipino chief engineer.

The Supreme Court ruled that the seafarers were illegally dismissed and awarded them for the payment of the unexpired portion of their respective contracts, unpaid wages, moral and exemplary damages and attorney’s fees.

The minimum requirement of due process in termination proceedings consists of notice to the seafarers intended to be dismissed and the grant to them of an opportunity to present their own side on the alleged misconduct.

To meet the requirements of due process, the employer must furnish the seafarer sought to be dismissed with two written notices before termination of employment can be legally effected, i.e., (1) a notice which apprises him of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice after due hearing which informs him of the employers’ decision to dismiss him.

The Ship Master is excused from furnishing a seafarer with the required notice of dismissal if doing so will prejudice the safety of the crew and the vessel, as in cases of mutiny.

Even if the Ship Master was justified in dispensing with the notice requirements, still, it was essential that his decision to dismiss the
Filipino seafarers should have been entered in the ship’s logbook; and that a complete report, substantiated by witnesses, testimonies and any other documents in support thereof, duly sent to the manning agency.

The record of this case is bereft of any such entry in the ship’s logbook or journal and of any report and supporting documents.

The company failed to establish that the seafarers were guilty of mutiny or that, in any other manner, they posed a clear and present danger to the vessel and its crew which would have justified the Ship Master in dispensing with the required notices.

The total absence of any prior written notice of the charges against them, the opportunity to defend themselves against such charges and a written notice of the subsequent decision of the Ship Master to terminate their employment establish the arbitrary and oppressive character of the dismissal from their employment.

Atty. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, e-mail [email protected], or call 0917-5025808 or 0908-8665786.

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