OFFSHORE INDUSTRIES, INC., PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION (5TH DIVISION), LABOR ARBITER CORNELIO L. LINSANGAN AND ALFREDO F. OSORIO, RESPONDENTS.

The validity of the dismissal of an employee is the principal
issue in this special civil action for certiorari.

Petitioner Offshore Industries, Inc. is a business firm engaged
in lighterage. 
Private respondent Alfredo F. Osorio had been an employee of the
petitioner since 1982.  At the time of
his dismissal in 1987, the private respondent was the barge master of Barge
10002.

In December 1986, the Vill Integrated Transport Corporation chartered two barges
owned by the petitioner, i.e., Barge 10002 and another barge, the
Masuda.  The chartered vessels were to
transport bags of sugar from Port Victorias in Negros Occidental to Manila.  The charter agreement provides, among others,
that the conditions recited in the Uniform Time Charter adopted in the Baltic and
International Maritime Conference shall be incorporated therein.

On December 28, 1986,
both barges were completely loaded. 
Barge Masuda was loaded with 14,000 bags of sugar.  On the other hand, Barge 10002 was loaded
with 19,000 bags of the said commodity. 
The two barges set out to leave the port despite the rough sea and the
high winds that day.

On its way out of the port, Barge 10002 ran aground.  A tugboat tried to pull the barge but it did
not succeed in doing so.  On account of
the incident, the cargo of Barge 10002 had to be transferred to another barge. 
The petitioner incurred expenses as a result of the incident.

In a letter addressed to the petitioner, the Vill
Integrated Transport Corporation reported the incident.  Although the letter took note of the rough
sea and the high winds when the two barges set out to leave the port, the
unfortunate incident was nonetheless attributed to the negligence of the crew
of Barge 10002, particularly the failure of the private respondent, as barge
master, to release the anchor of the barge upon the signal of the tugmaster.  In
support of this contention, it was also pointed out that no untoward incident
came upon Barge Masuda on the same occasion because her crew released the
anchor of the said barge at the proper time.

It was also alleged in the letter that the Vill
Integrated Transport Corporation lost eleven bags of sugar during an earlier
voyage of Barge 10002 on account of the negligence of its barge master, the
herein private respondent.

On January 19, 1987,
the private respondent was replaced as barge master.  On January
24, 1987, his employment was terminated.  It appears that the petitioner did not
conduct a thorough investigation of the incident.

On January 28, 1987,
the private respondent filed a Complaint for illegal dismissal against the
petitioner and the company president with the National Labor Relations
Commission.  The private respondent also
sought the payment of overtime pay, night shift differential pay, premium pay
for holiday and rest day, as well as service incentive
leave pay.

Both parties submitted
their respective position papers and other pertinent pleadings.

The petitioner contended that the company conducted some
inquiries regarding the incident and that it was eventually ascertained that
the private respondent was indeed negligent on account of his failure to
release the anchor of the barge at the appropriate time.  The petitioner added that the negligence of
the private respondent should not be ignored considering that as barge master, he was expected to exercise extreme care and
diligence in the performance of his duties.

The petitioner also contended that the private respondent was
already warned in the past that a repetition of his negligent behavior during
an earlier voyage of Barge 10002 where the charterer
lost eleven bags of sugar will result in his dismissal.  In sum,
the petitioner contended that the dismissal
of the private
respondent was justified.  The petitioner
likewise maintained that the money claims of the private respondent had already
been paid.  In support of the allegation,
the petitioner submitted a personnel change memo and a check voucher.

For his part, the private respondent contended that the incident
was not due to negligence attributable to him. 
He imputed the same to the overloading of Barge 10002 and the low
tide.  He also pointed out that the
Masuda was able to negotiate the exit from Port Victorias
despite the rough sea and the high winds because it was 5,000 bags of sugar
lighter than Barge 10002 and that
the big difference in weight hampered
the maneuverability of the latter.

The private respondent also invoked paragraphs 8 and 9 of the
Uniform Time Charter which provide that the charterer
is liable for damages incurred
due to the overloading of the barge.  The
private respondent likewise alleged that his summary dismissal was arbitrary in
character and was in violation of his right to due process.  He averred
that the petitioner has yet to pay his money claims.

In a Decision dated
October 26, 1987, the
labor arbiter assigned to the case ruled in favor of the private
respondent.  The pertinent portions of
the said Decision are as follows —

“We are not impressed with the contention of complainant for
it clearly appears that the incident was due to his failure to exercise
necessary precaution and prompt action relative to the loading of sugar on his
barge.

“Be that as it may, however, we find the penalty of dismissal
imposed on complainant as harsh and excessive. 
A penalty of two or
three months suspension would be more reasonable.

“With regard to the claim for overtime pay, no amplification
was made.  As such, the same will fail.

“On the claim for holiday pay and service incentive pay,
suffice to say that respondent failed to present evidence of payment of the
same.  The presumption therefore, that
necessarily follows is that there really was no payment made.

“WHEREFORE, judgment is hereby rendered ordering the
respondent company to reinstate complainant to his former or equivalent
position and to pay him backwages effective 1 May 1987.  Further, the respondent is ordered to pay
complainant legal holiday pay and service incentive leave pay for
the last three years.”^[1]

The petitioner brought an appeal to the National Labor Relations
Commission.  In a Decision promulgated on
March 18, 1988, the
majority of the members of the Fifth Division of the respondent Commission^[2]
ruled that the private respondent was arbitrarily dismissed considering that he
was never given the opportunity to be heard as mandated by the Labor Code.  Thus, the respondent Commission held that the
reinstatement of the private respondent was proper.

The respondent Commission
was also of the view that the private respondent may
not be considered negligent inasmuch as
the charges against him were not substantiated. 
The pertinent portions of the said Decision are as follows —

“However, we do not concur with the conclusion of the Labor
Arbiter that complainant-appellee was to be blamed for the overloading and
for the late release of the anchor for the simple reason that no evidence was
adduced thereto.  Under the aforecited par. 9 of the Uniform Time Charter, the loading
of the ship appears to be under the control of the charterer.  The alleged late release of the anchor by the crew under complainant-appellee’s command was not shown to be his fault.  This was
merely an opinion of the charterer as stated in his
letter.  In fact, in its letter, the charterer acknowledged the high seas and heavy wind at the
port’s entrance.  There was no basis
therefore for the Labor
Arbiter’s finding that the barge patron merited suspension for three (3)
months.  The backwages
awarded should thus be from January
24, 1987 the date of termination and not from May 1, 1987.

“Considering respondent-appellant’s failure to produce the
payrolls that complainant-appellee was paid holiday
pay and service incentive leave pay, we affirm the awards in favor of
complainant-appellee. 
It was incumbent for respondent-appellant to produce the appropriate documents
(payrolls) to prove payment of said benefits instead of those presented (personnel change memo).

“WHEREFORE, in view of the foregoing, the Decision dated October 26, 1987 is hereby MODIFIED
as above indicated and the appeal therefrom is DISMISSED for lack of merit.”^[3]

Commissioner Danilo S. Lorredo, however, entered a dissenting vote.  He was of the view that whatever happens to
the barge is the responsibility of the barge master in the same way that a
captain is responsible for his
ship.  He also stressed that while the
private respondent should not be totally exonerated from any liability, his
dismissal under the circumstances was too
harsh.  In his opinion, the private
respondent should be reinstated without the payment of backwages,
and that the period when he was jobless would amount to an appropriate penalty.^[4]

Hence, the instant Petition.

The petitioner maintains that the position of barge master is a
very sensitive position and that the negligence of the private respondent
justifies his dismissal.  The petitioner
adds that the reinstatement of the private respondent will be extremely
detrimental to its interest inasmuch as there will always be uncertainty and
anxiety on the part of the petitioner everytime the
private respondent is in charge
of a barge.

The petitioner likewise pleads
that the overloading of the barge could have been avoided if the private
respondent was attentive to his duties and prerogatives.  It pointed out that the private respondent
could have stopped further loading of the bags of sugar when the barge had
already exceeded its maximum capacity. 
Accordingly, the petitioner prays for the annulment of the questioned
Decision, as well as other equitable reliefs.^[5]

As instructed by the Court, the respondent Commission filed its
Comment on the Petition, praying therein for the dismissal of the same for lack
of merit.^[6]
Thereafter, the Court resolved to give due course to the instant Petition.^[7]
After the submission of simultaneous memoranda, the case was deemed submitted
for decision.

After a careful examination of the entire record of the case, the Court finds the instant Petition devoid
of merit.

Under Article 279 of the Labor Code, a worker is entitled to
security of tenure, to wit —

“ART. 279.  Security of
tenure. — In case of regular employment, the employer shall not terminate the
services of an employee except for a just
cause xxx.”

The procedure to be observed by an employer who seeks to dismiss
an employee is recited in Rule XIV of the rules implementing the Labor Code,
particularly Sections 1, 2 and 5, thereof, to wit —

“Section 1.  Security of tenure and due process. — No
worker shall be dismissed except for a just or authorized cause provided by law
and after due process.

“Section 2.  Notice of dismissal.
— Any employer who seeks to dismiss a worker shall furnish him a written
notice stating the particular acts or omission constituting the grounds for his
dismissal.  In cases of abandonment of
work, the notice shall be served at the worker’s last known address.

“xxx.

“Section 5.  Answer and hearing. — The worker may answer
the allegations stated against him in the notice of dismissal within a
reasonable period from receipt of such notice. 
The employer shall afford the worker ample opportunity to be heard and
to defend himself with the assistance of his representative, if he so
desires.”

In Philippine Movie Pictures Workers’ Association v. Premiere
Productions, Inc.,^[8]
this Court explained the rationale behind the right of every worker to due
process of law, to wit —

“The right to labor is a constitutional as well as a statutory right.  Every man has a natural right to the fruits
of his own industry.  A man who has been employed to undertake certain
labor and has put into it his time and effort is entitled to be protected.  The right of a person to his labor is deemed
to be property within the meaning of constitutional guarantees.  That is his means of livelihood.  He cannot be deprived of his labor or work
without due process of law xxx.”^[9]

The guarantee of due process applies to all workers, including managerial
employees.^[10]

The record of the case is devoid of any indication that the
private respondent was given an opportunity to present his side of the
controversy in accordance with the procedure recited in the Labor Code and the
implementing rules.  At most, the
contention of the petitioner to the contrary is an unsubstantiated
allegation.  Thus, the Court is convinced
that the dismissal of the private respondent was in violation of his right to
due process and that, accordingly, his reinstatement is in order.

The said observation notwithstanding, it also appears that the
imputation of negligence made against the private respondent has no sound
basis.  As pointed out by the private
respondent, the incident can be attributed
to the overloading of Barge 10002 and the low tide.  The rough sea and the high winds made the
situation more difficult for the crew to maneuver the said barge.  The fact that Barge Masuda was able to
negotiate the exit from Port Victorias despite the
rough sea and the high winds is beside the point.  Barge 10002 was heavier by 5,000 bags of sugar
and this difference in weight adversely affected its maneuverability.

Under paragraphs 8 and 9 of the Uniform Time Charter, the private
respondent, as barge master, must follow all orders given by the charterer, including instructions relating to the amount of
cargo to be loaded on the vessel, and that the charterer
is responsible for all consequences arising from the overloading of the vessel,
viz —

“8.  The whole
reach and burthen of the Vessel, including lawful deck-capacity to be at
the Charterers’ disposal, reserving proper and
sufficient space for the Vessel’s Master, Officers, Crew, tackle, apparel,
furniture, provisions and stores.

“9. 
xxx.  The
Master to be under the orders of the Charterers
as regards employment, agency, or other arrangements.  The Charterers
to indemnify the Owners against all consequences or liabilities arising
from the Master, Officers or Agents signing
Bills of Lading or other documents or otherwise complying with such orders, as
well as from any irregularity in the Vessel’s papers or for overcarrying
goods. xxx. (Emphasis supplied.)^[11]

An evaluation of the terms of the said Charter leads to the
inevitable conclusion that the control of the charterer
over the vessel is extensive and includes the power to determine how much cargo
is to be loaded on the barge, and that any incident that may happen as a
consequence of the overloading of the barge
is to be imputed to the charterer.  To say
that the incident could have been avoided if the private respondent objected to
the continuous loading of the barge is to overlook the clear and express terms
of the Uniform Time Charter.

In fine, the petitioner failed to show that the dismissal of the
private respondent is for just cause. 
The burden of proof in termination cases rests upon the employer to show
that the dismissal is for just cause and the failure to do so means that the dismissal
is not justified and the employee is entitled to reinstatement.^[12]

As to the issue regarding the propriety of the awards in favor of
the private respondent, the petitioner failed to substantiate its allegation
that the private respondent had already been paid his money claims.  The personnel change memo and check voucher
relied upon by the petitioner are not sufficient evidence of payment of the
financial benefits to which the private respondent was entitled during the
entire period of his employment.  Actual
receipts signed by the private respondent, if any, would have been more
appropriate.  The burden of proof rests
on the party asserting the affirmative.^[13]
Since the petitioner failed to prove its assertion that the money claims of the
private respondent had already been paid, the respondent Commission correctly resolved the matter in favor of the private respondent.

In sum, the Court finds no jurisdictional infirmity in the
Decision of the respondent Commission. 
Accordingly, the writ of certiorari will not issue.

WHEREFORE, in view of the foregoing, the Petition is
hereby DISMISSED for lack of merit.  No
pronouncement as to costs.

SO ORDERED.

Narvasa, (Chairman), Cruz, Griño-Aquino, and Medialdea, JJ., concur.

^[1]
Pages 35 to 37, Rollo.

^[2]
The Fifth Division was then composed of Commissioners Lourdes C. Javier, Danilo S. Lorredo and Nestor C.
Lim.  Commissioner Lorredo
wrote a dissenting opinion.

^[3]
Pages 54 to 59,
Rollo. 
The appeal was docketed as NLRC Case No. NCR-1-351-87.

^[4]
Page 59, Rollo.

^[5]
Pages 6 to 13, Petition; pages 7 to 14, Rollo.

^[6]
Pages 60 to 69, Rollo.

^[7]
Page 71, Rollo.

^[8]
92 Phil. 843 (1953).

^[9]
Ibid, page 848.

^[10]
De Leon v. National Labor Relations Commission, 100
SCRA 691 (1980) and Dosch v. National Labor
Relations Commission, 123 SCRA 296 (1983).

^[11]
Pages 24 and 25, Rollo.

^[12]
Polymedic General Hospital v. National Labor Relations Commission, 134 SCRA 420
(1985).

^[13]
Ibid.