STANLEY PEREZ,

Complainant,
RAB VII-02-0034-17(S)
-versus-

FILIPINAS SHIPPING INCORPORATED (FSI),

Respondent.

X-------------------------------X

Parties of the Case

Complainant STANLEY PEREZ (“PEREZ”) is of legal age, single
and a resident of ALoguinsan, Cebu. He is being represented by ATTY.
___________________ with his law office address at
____________________________.
Respondent FILIPINAS SHIPPING INC. (“FSI”)is a domestic
corporation engaged in the business of recruitment and placement of
seafarers, with its head office at the 9th Floor, One E-com Center, Ocean
Drive corner Sunset Avenue, Mall of Asia Complex, Pasay City. It is the
manning agent of TANKERS MALAYSIA PTE. LTD. It is being
represented by ATTY. ___________________ with office address at
____________________________________.

Facts of the Case

Complainant avers that he is an overseas seaman with the
position of Able Seaman. He supports his family.
On 10 December 2016, he entered into a Contract of Employment
with respondent FSI (manning agency) and TANKERS MALAYSIA PTE
LTD. (principal) where he was hired to work as an Able Seaman on the
vessel , AMAYA for a period of eight (8) months. Under said contract,
the guaranteed benefits of the complainant are as follows:
1) Basic Monthly Salary is $661.00;
2) Overtime of $ 390.00;
 3) Vacation Leave Pay of $ 154.00.
Under the said contract, he departed from the Philippines on 10
December 2016 and he arrived in Portugal one (1) day after to board
the above vessel. Instead of working for eight (8) months however, he
worked only for seven (7) days on board the vessel because on 18
December 2016, he was made to depart Portugal and he arrived in the
Philippines a day after.
He could not believe why he was made to depart from his work
after only seven (7) days because there was no just or authorized cause
on the part of respondents to do so. There was also no due process of
law accorded to him before he made to depart from work.
He was made to depart from work only after seven (7) days. The
reason why he was dismissed is because he allegedly refused to follow
orders, which is not true. There was never a lawful order which he
refused to follow. There was one (1) time immediately after he arrived
and boarded the vessel when he was asked to join an officer for
familiarization of the vessel but he asked for reconsideration and
requested to re-schedule it the day after because he had just arrived
from a long flight from Manila and he had to go on duty at midnight.
His action however does not constitute disobedience to a lawful order.
And even assuming that a wrong may be imputed to him for such action,
it is not commensurate to a penalty of dismissal.
For respondent’s side, the complainant was hired as an Able
Seaman, and as part of his duties and responsibilities, he may be called
on to use emergency , lifesaving, damage control, and safety
equipment. Able Seaman perform all operations connected with the
launching of lifesaving equipment. An AB is expected, among others, to
be able to operate deck machinery, such as the windlass or winches
while mooring or unmooring, and to operate cargo gear.
He embarked on MT AMAYA on 11 December 2016. All new
crewmembers, upon embarkation and before the ship goes on a
voyage, are required by law, the STCW and ISM Conventions, and
company regulations, to undergo Ship Familiarization. This is an official,
mandatory and supervised activity that involves actual participation of
the seafarer to know the various safety features of the ship, among
others, and a key step in maintaining efficient and competent operations
on-board, TANKERS MALAYSIA INC. has devised a system and
procedure for Ship Familiarization pursuant to the Conventions, a copy
of TANKER’S Standard Familiarization Checklist.
The person tasked to conduct the ship familiarization for MT
AMAYA was 3rd Officer Radu Petre. Per his Sworn Statement last 11
December 2016, he checked on the availability of all the new
crewmembers individually, including the complainant, if the time of
2000 hrs can be accommodated for the Ship Familiarization round. 3 rd
Officer Radu’s instruction was for the concerned crewmembers to
assemble at the smoking room at 2000 hrs. Upon arriving at the area
at about 2010 hrs, the crewmembers were not yet present so he called
them again individually, including the complainant, to assemble in 5 to
10 minutes. Again, there was no objection on the part of the
complainant at that point.
At about 2020 hrs, when 3rd Officer Radu returned to the smoking
room, the new crewmembers required to participate in the
familiarization were already present --- the Third Engineer , Chief Cook
and the Second Engineer --- except for the complainant. After waiting
for about 15 minutes, 3rd Officer Radu called the complainant in his
room. Although the latter picked up the phone, he did not make any
response. Shortly thereafter, the complainant showed up in the
assembly area.
However, instead of being apologetic about being tardy,
complainant demanded an explanation, in an angry and loud tone, why
he was woken up. Complainant refused to join the activity and said that
he should be sleeping or resting since his watch will begin in 0000 hrs.
Complainant’s refusal to join the Ship Familiarization and the
manner by which he addressed 3rd Officer Radu was attested by 3rd
Officer is attested by 3rd Officer Costache Alexandru Robert . 3rd Officer
Costache said that the complainant confronted 3rd Officer Radu in an
unorderly and rude tone.
The new crewmembers who participated in the ship familiarization
also corroborated the foregoing circumstances. Chief Cook Merstwind
Arias and Engr. Medel Tringan said that complainant addressed 3rd
Officer Radu in a highpitched voice and that complainant’s reason for
not joining is that the latter will be reporting for duty soon.
In a calm tone (Annex “7”), 3rd Officer Radu instructed the
complainant to see the Chief Officer to explain why he will not be joining
the Ship Familiarization rounds. Thereafter, 3rd Officer Radu and the
rest of the new crewmembers proceeded with the scheduled activity.
Apparently, despite the express instruction of 3rd Officer Radu to
the complainant that he see the Chief Officer, complainant refused to do
so. Chief Officer Sergey Keskevich’s Statement in his sworn statement,
cited at length as he recounts what happened after the complainant did
not participate in the Ship Familiarization rounds:
“3/O confirmed with me if AB Perez reported last night about his
refusal to undergo Familiarization or any exemption/postpone has been
given to AB by C/O. Which was not the case. AB Perez did not inform
myself regarding his absence.
Further on, upon investigation based on witnesses reports to AB
Perez has been given written warning. Apart from other 4 on-signers
he disregarded the order of responsible Officer and refused to pass
familiarization or report to C/O as been requested. By some of
witnesses his behavior found offensive and inappropriate towards
responsible Officer’s request.
AB Perez refused to sign attached Form P24 which has been
intended to keep on board by management as proof to his words to
avoid such misconduct /behavior in future. From his words he has an
own principle and order no any circumstances will accept this warning.
Therefore behavior, principle and attitude of AB Perez found by
myself not appropriate for safe keeping and safe watch keeping and
well-being of crew involved in this situation.”
The complainant was asked to provide his written explanation.
However, despite the opportunity to be heard, he did not proffer any
reasonable explanation for his infraction. Furthermore, he did not sign
the record of the proceedings taken. The complainant was dismissed
from service and was offloaded on 18 December 2016.
Believing that his employment at MT AMAYA has been illegally
terminated, the complainant filed this complaint against respondent.
Conciliation proceedings proved to be unsuccessful.
If you were the complainant, what is your stand? Plead your case.
If you were the respondent, was the complainant’s sudden
termination justifiable? Argue by citing legal basis.
 II. Republic of the Philippines
Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch VII
Cebu City

JOSE AVENCENA,
Complainant,
RAB VII-12-2520-16
-versus-

ROGER BUS CORPORATION, AND/OR

ALAN REYES,
Respondents.

X-------------------------------X

Parties of the Case

Complainant JOSE AVENCENA (“AVENCENA”) is of legal age,
married and a resident of San Remigio, Cebu. He is being represented
by ATTYS. _________________________ with law office address
at ________________________________.
Respondent ROGER BUS CORPORATION (“ROGER BUS”) is a
domestic corporation engaged in the business of transportation with its
principal place of business at F. Ramos Street, Cebu City. Individual
respondent ALAN REYES (“REYES”) is its Operations Manager of said
corporation. Respondents are being represented by
ATTY.____________________________ with his law office
address at _______________________________.
Facts of the Case
Complainant was hired by respondent ROGER BUS on 05
November 2010 as a driver. Since the day he was hired, he worked
from 4:00 o’clock am to 5:00 o’clock pm Mondays to Sundays without
any rest day and was only paid P 141.00 per day. He was paid weekly
every Thursday of the week.
 Since complainant was not provided with a company ID, he had
attached pictures of him wearing his uniform to prove that he was
indeed employed as a driver thereat. For several years in service, he
was issued with several uniforms that the company issued to him.
In the recent years of his employment, complainant was not
provided with payslips. It is the practice of the company that their
wages are just placed in a small brown envelope with the computation
written thereon. After the money is taken therefrom, respondent’s
office staff will get back the envelope without giving their employee a
summary of what is paid to them or earned at that given period.
But sometime in 2012, their employees were provided with a piece
of paper written in it is their salary. Copies given to the complainant
were attached to his position paper collectively. However, that was only
for that year. Years thereafter, they were not allowed to retain a copy
of the summary of their wages. Further, in his years of service, the
complainant was never provided with the benefits that he is entitled to
receive under the law such as 13th Month Pay, service incentive leave
pay benefits and holiday pay.
Sometime in November 2016 while he was off-duty (beyond 5:00
o’clock pm), he was told by his “konduktor” to have a drink as the latter
was drinking beer. Since he was off-duty and to show respect to the
offer, the complainant did have two (2) shots before going home to take
his rest.
Complainant never expected that said action will affect his
employment for he was dismissed on 17 November 2016. He just found
out that the same “konduktor” told respondent REYES about their
drinking session and that the complainant became too drunk. He denied
being so for he only took two (2) shots and left.
These allegations are corroborated by the witnesses of
complainant namely GILBERT FAMOR and ROSE SANCHEZ whose joint
affidavit was attached to his position paper.
Complainant was told by respondent REYES that he was no longer
allowed to drive and work as a driver of respondent ROGER BUS.
Because of this, the complainant sought legal assistance at the NLRC.
During the mandatory conferences, complainant was asked to
report back for work without any financial assistance. He declined said
offer because his relationship with respondent is already strained. He
claimed that he was threatened that something will happen to him if he
will report back, as ordered by the company officers. So no settlement
was reached. Hence the submission of position papers by the parties.
On the other hand, respondent ROGER BUS operates a fleet of
buses which ply within the authorized routes granted by the Land
Transportation Franchising and Regulatory Board (LTFRB). By the
nature of its business, it strictly implements the prohibition on the intake
of alcoholic beverages and illegal drugs by bus drivers and other crew
members of every bus unit.
Herein complainant was engaged as a driver sometime in 2011
where he was assigned to the bus unit with Body Number 945. In the
evening of 08 November 2016, respondent REYES got an information
that the complainant, his wife and a lady conductor had a drinking
session inside the company’s garage and that prompted him to check
the matter.
Respondent REYES then was able to verify the report to be true
wherein he then asked the complainant on what he was doing.
Complainant retorted in a garbled voice that he had just a couple of
glasses upon the invitation of a lady conductor who happened to be a
friend of his wife. Respondent REYES reminded the complainant that he
had to drive in the early morning of the following day but the latter
insisted in a loud voice that he was not drunk. What ensued was an
exchange of words between the two wherein the complainant’s wife had
joined and lambasted respondent REYES with unpleasant remarks.
Respondent REYES was constrained to bar the complainant from
taking the wheel of his assigned bus unit because of the latter’s
intoxication. He then issued a Show Cause memorandum that informed
the complainant of the nature of his violation but also required him to
explain within 72 hours from receipt thereof. However, the complainant
adamantly refused to receive said Show Cause Memo. He then left the
garage and never returned the following days thereby prompted
respondent REYES to have the same sent to him through private courier.
The copy of the 09 November 2016 Show Cause Memorandum was
appended to respondents’ position paper.
From then on, the complainant did not show up at the garage
compound of respondent REYES. The next thing it heard of the said
complainant was when an Invitation from the SENA issued from his
Request for Conciliation. No settlement was reached. Summons from
this Office was served in the above-captioned complaint. The required
mandatory conferences were held but still, parties failed to amicably
settle.
If you were the complainant, how would you plead your case ?
Cite legal basis.
If you were the respondent, did you terminate the employment
of the complainant? Were your actions justified? Argue your case
citing legal basis.