G.R. No. 182262. April 13, 2011
ROMULO B. DELA ROSA, PETITIONER, VS. MICHAELMAR PHILIPPINES, INC., SUBSTITUTED BY OSG SHIPMANAGEMENT MANILA, INC., AND/OR MICHAELMAR SHIPPING SERVICES, INC., RESPONDENTS.
NACHURA, J.:
The antecedents –
Dela Rosa was hired by respondent Michaelmar Philippines, Inc., for
and on behalf of its principal Michaelmar Shipping Services, Inc.
(respondent), as 3rd Engineer on board the vessel MT “Goldmar” for a
period of nine months.[3] He
boarded MT “Goldmar” on February 15, 2003. However, on April 14, 2003,
he was discharged for his alleged poor performance, and was repatriated
to the Philippines.
Claiming termination without just cause and due process, Dela Rosa filed a complaint[4]
for illegal dismissal, nonpayment of salaries/wages, payment of moral
and exemplary damages and attorney’s fees with the Labor Arbiter (LA),
against respondents.
Traversing the complaint, respondents alleged that Dela Rosa was
validly terminated. They averred that Dela Rosa’s work performance was
unsatisfactory, and that despite the advice given to him by his
superiors, Dela Rosa’s job performance did not improve; he continued to
be incompetent and inefficient. On March 16, 2003, Chief Engineer
Stephen B. Huevas (Engr. Huevas) issued a warning letter
to Dela Rosa, but he refused to receive the same. Worse, on April 9,
2003, Dela Rosa simply stopped working. Left with no recourse, Engr.
Huevas sent a letter dated April 9, 2003 to the principal, communicating
his intention to disembark Dela Rosa. On April 14, 2003, Dela Rosa was
repatriated upon payment of all the benefits due him. Respondents,
therefore, prayed for the dismissal of the complaint.[5]
On March 31, 2004, the LA rendered a decision[6]
dismissing the complaint. In so ruling, the LA made much of Dela Rosa’s
failure to deny or rebut respondents’ allegations that he refused to
receive the warning letter on March 16, 2003, and then
stopped working on April 9, 2003, without any valid reason. Dela Rosa’s
failure to rebut these serious allegations, the LA held, gave rise to an
inference that the same were true. The LA further lent credence to the
entries in the logbook and further declared that Dela Rosa already
waived his right to contest the said entries because he refused to
receive the warning letter addressed to him.
The LA disposed, thus:
WHEREFORE, a Decision is hereby rendered DISMISSING the case for lack of merit.[7]
Dela Rosa appealed to the National Labor Relations Commission (NLRC). On July 29, 2005, the NLRC issued a Resolution[8] dismissing
the appeal and affirming the LA. In so ruling, the NLRC sustained
respondents’ claim that Dela Rosa neglected his duty as 3rd Engineer and
abandoned his job, justifying the termination of his employment.
Dela Rosa filed a motion for reconsideration,[9] but the NLRC denied it on November 24, 2005.[10]
Dela Rosa then went to the CA via certiorari. On January 31, 2007, the CA rendered a Decision[11]
reversing the NLRC. It held that respondents failed to allege and prove
with particularity the charges against Dela Rosa. The particular acts
which would indicate Dela Rosa’s unsatisfactory performance were neither
specified nor described in the warning letter and were
never entered in the ship’s logbook. It declared respondents’ pieces of
evidence as self-serving, which could not support the findings of lawful
termination. The CA added that Dela Rosa’s alleged incompetence,
disobedience, and refusal to work while on board MT “Goldmar” did not
constitute a clear case of insubordination and abandonment of work that
would warrant his termination.
The CA decreed that:
WHEREFORE, the foregoing considered, the Petition is GRANTED and the assailed Resolutions are ANNULLED and SET ASIDE. Accordingly,
Petitioner Romulo B. dela Rosa is hereby declared to have been
illegally dismissed from employment and private respondents are
therefore ordered to pay him his salaries corresponding to the unexpired
portion of his employment contract. No costs.SO ORDERED.[12]
Dela Rosa’s victory, however, was only fleeting because on a motion for
reconsideration, the CA rendered an Amended Decision, viz.:
After a careful study of the grounds relied upon by [respondents],
this court finds the instant motion meritorious, considering that the 24
November 2005 Resolution of the National Labor Relations Commission has
already become final and executory on February 28, 2006 and the
corresponding entry of judgment thereon issued on June 15, 2006.Jurisprudence dictates that once a judgment becomes final, all the
issues between the parties are deemed resolved and laid to rest.
Litigation must end and terminate sometime and somewhere, and it is
essential to an effective and efficient administration of justice that
once a judgment has become final the winning party be not be deprived of
the fruits of the verdict. Courts must therefore guard against any
scheme calculated to bring about that result. Constituted as they are to
put an end controversies, courts should frown upon any attempt to
prolong them.As such, it becomes immutable and unalterable, and may no longer be
modified in any respect except only to correct clerical errors or
mistake.WHEREFORE, the foregoing considered, the Motion for Reconsideration is hereby GRANTED and Our assailed decision considered academic.
SO ORDERED.[13]
Dela Rosa filed a motion for reconsideration on September 30, 2007.
Pending resolution of petitioner’s motion, respondent Michaelmar
Philippines, Inc. filed a Manifestation/Motion to Substitute Michaelmar Phils.,[14] Inc.
with OSG Shipmanagement Manila, Inc. (OSG Shipmanagement). It alleged
that OSG Shipmanagement is the new manning agent in the Philippines of
Michaelmar Shipping Services, Inc., and it assumes the full
responsibility for all contractual obligations to seafarers originally
recruited and processed by Michaelmar Philippines, Inc.[15]
The CA noted and granted the motion in its Resolution[16]
dated November 12, 2007, and accordingly ordered the impleading of OSG
Shipmanagement as respondent, in substitution of Michaelmar Philippines,
Inc.
On March 18, 2008, the CA issued a Resolution[17] denying Dela Rosa’s motion for reconsideration.
Hence, this appeal by Dela Rosa, arguing that:
I
THE COURT OF APPEALS COMMITTED SERIOUS ERROR OF LAW IN PROMULGATING THE
AMENDED DECISION OF 22 AUGUST 2007 REVERSING AND SETTING THE EARLIER
DECISION DATED 31 JANUARY 2007 ON THE GROUND THAT THE CASE HAS ALREADY
BECOME MOOT AND ACADEMIC.II
THE COURT OF APPEALS COMMITTED A SERIOUS ERROR OF LAW IN ERRONEOUSLY
APPLYING THE JURISPRUDENCE LAID DOWN IN THE CASE OF SALVA VS. CA, 304
SCRA 632.III
THE COURT OF APPEALS COMMITTED SERIOUS ERROR OF LAW IN ERRONEOUSLY
APPRECIATING THE ENTRY OF JUDGMENT ISSUED BY THE NATIONAL LABOR
RELATIONS COMMISSION ON JUNE 15, 2006 THEREBY GIVING THE EFFECT PF
DISMANTLING THE RIGHT OF THE PETITIONER TO REMEDIAL MEASURES IN
RPOTECTION OF HIS RIGHTS AS SET FORTH BY LAW.[18]
The CA dismissed Dela Rosa’s petition on ground of mootness. It
considered the November 24, 2005 NLRC Resolution sustaining Dela Rosa’s
dismissal as final and executory. As such, the resolution became
immutable and unalterable.
The CA was wrong.
A decision issued by a court becomes final and executory when such
decision disposes of the subject matter in its entirety or terminates a
particular proceeding or action, leaving nothing else to be done but to
enforce by execution what has been determined by the court, such as when
after the lapse of the reglementary period to appeal, no appeal has
been perfected.[19]
The period or manner of appeal from the NLRC to the CA is governed by Rule 65, pursuant to the ruling of this Court in St. Martin Funeral Home v. National Labor Relations Commission.[20] Section 4 of Rule 65, as amended, states
that the petition may be filed not later than sixty (60) days from
notice of the judgment, or resolution sought to be assailed.
Record shows that Dela Rosa received a copy of the November 24, 2005
Resolution of the NLRC, denying his motion for reconsideration on
December 8, 2005.[21] He had sixty (60) days, or until February 6, 2006, to file his petition for certiorari.
February 6, 2006, however, was a Sunday. Thus, Dela Rosa filed his
petition the next working day, or on February 7, 2006. Undoubtedly, Dela
Rosa’s petition was timely filed.
In Leonis Navigation Co., Inc. v. Villamater,[22] we explained:
[J]udicial review of decisions of the NLRC is sought via a petition for certiorari
under Rule 65 of the Rules of Court, and the petition should be filed
before the CA, following the strict observance of the hierarchy of
courts. Under Rule 65, Section 4, petitioners are allowed sixty (60)
days from notice of the assailed order or resolution within which to
file the petition. Thus, although the petition was not filed within the
10-day period, petitioners reasonably filed their petition for certiorari before the CA within the 60-day reglementary period under Rule 65.Further, a petition for certiorari does not normally include
an inquiry into the correctness of its evaluation of the evidence.
Errors of judgment, as distinguished from errors of jurisdiction, are
not within the province of a special civil action for certiorari,
which is merely confined to issues of jurisdiction or grave abuse of
discretion. It is, thus, incumbent upon petitioners to satisfactorily
establish that the NLRC acted capriciously and whimsically in order that
the extraordinary writ of certiorari will lie. By grave abuse of
discretion is meant such capricious and whimsical exercise of judgment
as is equivalent to lack of jurisdiction, and it must be shown that the
discretion was exercised arbitrarily or despotically.The CA, therefore, could grant the petition for certiorari
if it finds that the NLRC, in its assailed decision or resolution,
committed grave abuse of discretion by capriciously, whimsically, or
arbitrarily disregarding evidence that is material to or decisive of the
controversy; and it cannot make this determination without looking into
the evidence of the parties. Necessarily, the appellate court can only
evaluate the materiality or significance of the evidence, which is
alleged to have been capriciously, whimsically, or arbitrarily
disregarded by the NLRC, in relation to all other evidence on record.
Notably, if the CA grants the petition and nullifies the decision or
resolution of the NLRC on the ground of grave abuse of discretion
amounting to excess or lack of jurisdiction, the decision or resolution
of the NLRC is, in contemplation of law, null and void ab initio; hence, the decision or resolution never became final and executory.[23]
Indubitably, the issuance of an entry of judgment by the NLRC cannot render Dela Rosa’s petition for certiorari as moot and academic. Thus, the CA erred for ruling otherwise.
On the merits of the case. Dela Rosa insists that he was illegally
terminated. Respondents, on the other hand, maintain that Dela Rosa’s
dismissal was based on a valid and legal ground.
We sustain Dela Rosa’s argument.
Dela Rosa was dismissed for his alleged poor performance. In Eastern Overseas Employment Center, Inc. v. Bea,[24] we explained poor performance as a ground for termination of employment, viz.:
As a general concept, “poor performance” is equivalent to
inefficiency and incompetence in the performance of official duties.
Under Article 282 of the Labor Code, an unsatisfactory rating can be a
just cause for dismissal only if it amounts to gross and habitual
neglect of duties. [Thus,] the fact that an employee’s performance is
found to be poor or unsatisfactory does not necessarily mean that the
employee is grossly and habitually negligent of his duties. Gross
negligence implies a want or absence of or failure to exercise slight
care or diligence, or the entire absence of care. It evinces a
thoughtless disregard of consequences without exerting any effort to
avoid them.[25]
We review the records of the case and we agree with the earlier finding
of the CA that no substantial evidence was presented to substantiate the
cause of Dela Rosa’s dismissal. The letter warning[26] dated March 16, 2003 and the following entries[27] in the ship’s logbook:
WARNING LETTER WAS PRESENTED TO THIRD ENGINEER R. DELA ROSA
CONCERNING HIS PERFORMANCE AS THIRD ENGINEER ON BOARD MT GOLDMAR.
HOWEVER, HE REFUSED TO AFFIX HIS SIGNATURE OR ACKNOWLEDGE SAID WARNING
LETTER, IN SHORT, HE HAS NO INTENTION OR WHATSOEVER TO IMPROVE.[28]@0800HRS 09 APRIL ’03 THIRD ENG’R R. DELA ROSA CEASES TO WORK
WITHOUT MY KNOWLEDGE AND INSTRUCTION, AS WELL AS A VALID REASON NOT TO
BE IN THE ENGINE ROOM TO CARRY OUT HIS ROUTINE DUTY/RESPONSIBILITIES.[29]
are insufficient to establish respondents’ claim of valid dismissal.
In Talidano v. Falcon Maritime & Allied Services, Inc.[30] and Abacast Shipping & Management Agency, Inc. v. NLRC,[31]
we held that a ship’s logbook is a respectable record that can be
relied upon to authenticate the charges filed and the procedure taken
against employees prior to their dismissal. In this case, however,
respondents did not present the other entries in the logbook that could
substantiate Dela Rosa’s unsatisfactory performance.
The letter[32] dated April
14, 2003 of Engr. Huevas to Michaelmar Philippines, Inc. cited the
particular acts constituting Dela Rosa’s want of capacity and
unsatisfactory conduct. Curiously, these acts were not entered in the
ship’s logbook or stated in the warning letter[33] allegedly given to Dela Rosa.
Dela Rosa was consistent in assailing the genuineness of respondents’
annexes “B” and “C.” He is firm in his assertion that the purported
copy of the entries in the ship’s logbook is not genuine. Yet,
respondents did not bother to present the logbook itself or an
authenticated copy of the entries in the logbook. They relied on mere
photocopies.
In Centennial Transmarine, Inc. v. Dela Cruz,[34] we declared, viz.:
In Wallem Maritime Services, Inc. v. National Labor Relations Commission, citing Haverton Shipping Ltd. v. National Labor Relations Commission,
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; that Captain Kowalewski’s signature in such purported entry was
forged. In support of his allegations, respondent submitted three
official documents 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 September 1, 2000 (Annex “D”), and the statements of Safety
Officer Khaldun Nacem Faridi and Chief Officer Josip Milin (Annexes “G”
and “H”) also cannot be given weight for lack of authentication.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. 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.[35]
We cannot, therefore, give any probative value to respondents’ annexes “C” and “D” for lack of authentication.
Besides, even assuming that Dela Rosa’s performance was
unsatisfactory, respondents failed to demonstrate that petitioner’s
alleged poor performance amounted to gross and habitual neglect of duty,
which would justify his dismissal.
The principle echoed and reechoed in jurisprudence is that the onus of proving that an employee was dismissed for a just cause rests on the employer,[36] and the latter’s failure to discharge that burden would result in a finding that the dismissal is unjustified.[37]
Furthermore, Dela Rosa was not accorded due process. Under Article 277(b)[38]
of the Labor Code, the employer must send the employee, who is about to
be terminated, a written notice stating the causes for termination, and
must give the employee the opportunity to be heard and to defend
himself. 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, such as
those embodied in the Standard Contract for Seafarers Employed Abroad
(Standard Contract).[39] Section 17 of the Standard Contract supplies the disciplinary procedure against an erring seafarer:
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:
- Grounds for the charges as listed in Section 31 of this Contract or analogous act constituting the same.
- 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 the 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, which
copies furnished to the Philippine agent.D. Dismissal for just cause may be affected 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.
In this case, there was no showing that respondents complied with the
foregoing procedure. Dela Rosa was not served with the notice apprising
him of the particular acts or omissions on which his dismissal was
based, together with the opportunity to explain his side. The only
notice allegedly given to Dela Rosa was a warning letter. Such
letter, however, did not cite the particular acts constituting Dela
Rosa’s alleged poor performance. Likewise, there was no formal
investigation of the charges.
Certainly, there can be no other conclusion than that Dela Rosa was
illegally terminated. He is, therefore, entitled to be paid his salaries
for the unexpired portion of his employment contract, pursuant to our
ruling in Serrano v. Gallant Maritime Services, Inc.[40]
However, the payment of overtime pay, leave pay, and tanker
allowance should be disallowed. Overtime is not automatically included
in the computation of the monetary award, unless there is evidence that
an employee performed work during those periods.[41]
The rendition of overtime work and the submission of sufficient proof
that the same was actually performed are conditions to be satisfied
before a seaman could be entitled to overtime pay. Similarly, the claim
for leave pay for the unexpired portion of the contract and for tanker
allowance is unwarranted since the same are given during the actual
service of a seaman.[42]
Finally, we deny the claim for moral and exemplary damages, and the claim for attorney’s fees for lack of basis.
WHEREFORE, the petition is GRANTED. The assailed Amended Decision dated January 31, 2007 and the Resolution dated March 18, 2008 in CA-G.R. SP No. 93115 are REVERSED and SET ASIDE.
Romulo B. dela Rosa is declared illegally dismissed. Respondent
Michaelmar Shipping Services, Inc. and substitute respondent OSG
Shipmanagement Manila, Inc. are ordered to pay, jointly and severally,
petitioner Romulo dela Rosa his salaries corresponding to the unexpired
portion of his employment contract at the rate of US$985.00 per month[43] or its peso equivalent at the time of actual payment.[44]
SO ORDERED.
Carpio (Chairperson), Peralta, Abad, and Mendoza, JJ., concur.
* See CA Resolution dated November 12, 2007; CA rollo, p. 268.
[1] Penned by Associate
Justice Josefina Guevara-Salonga, with Associate Justices Vicente Q.
Roxas and Ramon R. Garcia, concurring; rollo, pp. 29-30.
[2] Id. at 41-42.
[3] Records, p. 3.
[4] Id. at 2.
[5] Id. at 27-43.
[6] Id. at 89-95.
[7] Id. at 95.
[8] Id. at 137-140
[9] Id. at 145-153.
[10] Id. at 172-174.
[11] CA rollo, pp. 180-190.
[12] Id. at 189.
[13] Supra note 1, at 30.
[14] CA rollo, pp. 220-222.
[15] Id. at 223.
[16] Id. at 268.
[17] Supra note 2.
[18] Rollo, pp. 4-5.
[19] Delima v. Gois, G.R. No. 178352, June 17, 2008, 554 SCRA 731, 738.
[20] G.R. No. 130866, September 16, 1998, 295 SCRA 494.
[21] See Registry Return Card; records, p. 179.
[22] G.R. No. 179169, March 3, 2010, 614 SCRA 182.
[23] Id. at 191-192.
[24] 512 Phil. 749 (2005).
[25] Id. at 758.
[26] Annexes “B” to “B-1”; records, pp. 46-47.
[27]Annexes “C” and “D”; id. at 48 and 49, respectively.
[28] Id. at 48.
[29] Id. at 49.
[30] G.R. No. 172031, July 14, 2008, 558 SCRA 279, 297.
[31] 245 Phil. 487 (1988).
[32] Annexes “G” to “G-3”; records, pp. 54-57.
[33] Supra note 26.
[34] G.R. No. 180719, August 22, 2008, 563 SCRA 210.
[35] Id. at 218-222. (Citation omitted.)
[36] See De Jesus v. National Labor Relations Commission, G.R. No. 151158, August 17, 2007, 530 SCRA 489, 498.
[37] Eastern Overseas Employment Center, Inc. v. Bea, supra note 24, at 759.
[38] ART. 277. Miscellaneous provisions.
b. Subject to the constitutional right of workers to security of
tenure and their right to be protected against dismissal except for a
just and valid and authorized cause and without prejudice to the
requirement of notice under Article 283 of this Code, the employer shall
furnish the worker whose employment is sought to be terminated a
written notice containing a statement of the causes for termination and
shall afford the latter ample opportunity to be heard and to defend
himself with the assistance of his representative if he so desires in
accordance with company rules and regulations promulgated pursuant to
guidelines set by the Department of Labor and Employment. Any decision
taken by the employer shall be without prejudice to the right of the
worker to contest the validity or legality of his dismissal by filing a
complaint with the regional branch of the National Labor Relations
Commission. The burden of proving that the termination was for a valid
or authorized cause shall rest on the employer. x x x.
[39] Centennial Transmarine, Inc. v. Dela Cruz, supra note 34, at 222-223.
[40] G.R. No. 167614, March 24, 2009, 582 SCRA 254.
[41] Id. at 303-304.
[42] See Centennial
Transmarine, Inc. v. Dela Cruz, supra note 34, at 224; see also Serrano
v. Gallant Maritime Services, Inc., supra, at 303-304.
[43] See Annex “A”; records, p. 45.
[44] See Centennial Transmarine, Inc. v. Dela Cruz, supra note 34, +at 225.