Paulino Ungos III

Lawyer | Law Professor | Author

Tag: 2019-10

  • A Seafarer’s Cause of Action Arises Upon His Disembarkation from the Vessel

    On 4 February 2010, Khalifa Algosaibi, through its agent, 88 Aces, hired Apolinario as an ordinary seaman to board the vessel MV Algosaibi 42. His employment contract was for a duration of 6 months.

    After passing the required pre-employment medical examination, Apolinario left Manila on 26 February 2010 and embarked MV Algosaibi 42 in Ras Tanura, Kingdom of Saudi Arabia.

    After completing his contract in August 2010, Apolinario was not repatriated to the Philippines, for he directly entered into a new employment contract with 88 Aces’ foreign principal, Khalifa Algosaibi. This new contract with Khalifa Algosaibi lasted until April 2012.

    While on board MV Algosaibi 42 in December 2010, Apolinario suddenly experienced dizziness. As his condition did not improve, he was sent to As Salama Hospital in Al-Khobar, Kingdom of Saudi Arabia where he was found to have high glucose and cholesterol. Apolinario notes that he was given medicine by the doctor and was advised to observe proper diet and avoid stress. After taking the doctor’s advice, his medical condition improved and he was able to perform his work well.

    However, after 2 years, particularly in January 2012, Apolinario alleged that his dizziness recurred, accompanied by the blurring of his vision. On 2 April 2012, he stated that he returned to As Salama Hospital where he was diagnosed to have diabetes mellitus and dislipedemia.

    In 11 April 2012, Apolinario was repatriated in Manila.

    Apolinario claims that he immediately reported to the office of 88 Aces to get his unpaid wages and for him to be referred to the company physician. However, 88 Aces viewed that his repatriation happened because he completed his 6-month Philippine Overseas Employment Administration standard employment contract. Thus it declined to shoulder his medical expenses. Apolinario no longer insisted on treatment and just continued taking the medicine given by the Kingdom of Saudi Arabia doctor.

    Although Apolinario felt well, his illness recurred on 2 August 2013. Apolinario then consulted Dr. Joseph Glenn Dimatatac, an internal medicine physician, who informed him that his illness was indeed diabetes mellitus.

    On 17 March 2015, Apolinario consulted Dr. Rufo Luna, the Municipal Health Officer of the Municipality of San Jose, who declared him to be physically unfit to continue work due to his hyperglycemia. Consequently, Apolinario demanded, albeit unsuccessfully, the payment of his disability benefits from his employer.

    Apolinario filed his Request for Single Entry Approach at the National Labor Relations Commission on 25 March 2015. Then, on 8 May 2015, he filed a Complaint against Khalifa Algosaibi, 88 Aces, and Jocson (Respondents) before the Office of the Labor Arbiter for the payment of disability benefits.

    Respondents, on the other hand, denied liability for the following reasons:

    • Apolinario filed his Complaint 5 years after the completion of his employment contract in August 2010. Thus, his cause of action had already prescribed, not having been filed within the 3-year prescriptive period set by law.
    • Apolinario finished his 6-month employment contract in August 2010 without any medical issue whatsoever.
    • Apolinario actually failed to comply with the 3-day post-employment medical examination requirement.

    RULING:

    RE: Prescription

    Under the standard employment contract of the Philippine Overseas Employment Administration, a contract between an employer and a seafarer ceases upon its completion, when the seafarer signs off from the vessel and arrives at the point of hire.1Section 2, Philippine Overseas Employment Administration Memorandum Circular No. 10, Series of 2010 (Amended Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-Board Ocean-Going Ships [October 26, 2010])

    In this case, while Apolinario’s 6-month contract may have ended as early as August 2010, he nonetheless was able to sign off from MV Algosaibi 42 and arrive at the point of hire only on 11 April 2012.

    (Significance: A seafarer’s cause of action arises upon his disembarkation from the vessel.)

    As Apolinario’s disembarkation from the Algosaibi 42 was on 11 April 2012, he had three years from the date, or until April 11, 2015, to make a claim for disability benefits.

    Apolinario had requested for a Single Entry Approach2The Single Entry Approach is an administrative approach to provide an accessible, speedy, and inexpensive settlement of complaints arising from employer-employee relationship to prevent cases from ripening into full blown disputes. All labor and employment disputes undergo this 30-day mandatory conciliation-mediation process. before the National Labor Relations Commission as early as 25 March 2015.

    The fact that Apolinario filed his Complaint before the Office of the Labor Arbiter only on 8 May 2015 is of no moment. Since the Single Entry Approach is a pre-requisite to the filing of a Complaint before the Office of the Labor Arbiter, the date when Apolinario should be deemed to have instituted his claim was when he instituted his Request for Single Entry Approach on 25 March 2015. Considering that the expiration of Apolinario’s cause of action was on 11 April 2015, his claim was filed well within the 3-year prescriptive period.

    RE: Disability benefits

    The Supreme Court ruled that Apolinario is entitled to permanent total disability benefits.

    Under the Philippine Overseas Employment Administration Standard Employment Contract, those illnesses, such as diabetes mellitus, which are not listed as an occupational disease are disputably presumed as work-related.3Section 20 (A) (4), Philippine Overseas Employment Administration Memorandum Circular No. 10, Series of 2010 (Amended Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-Board Ocean-Going Ships [October 26, 2010])

    According to the Court, the effect of the legal presumption in favor of the seafarer is to create a burden on the part of the employer to present evidence to overcome the prima facie case of work-relatedness. Absent any evidence from the employer to defeat the legal presumption, the prima facie case of work-relatedness prevails.

    To reinforce the prima facie case in his favor, Apolinario stated that during the existence of his contract, he experienced recurring dizziness and was diagnosed at As Salama Hospital in Al-Khobar Saudi Arabia to have contracted diabetes mellitus. In fact, while on board the vessel, he was twice sent to As Salama Hospital in Al-Khobar Saudi Arabia for medical treatment. To support his claim, Apolinario presented the medical record issued by the hospital and the different medical certificates of his physicians after his repatriation in Manila stating that he is already physically unfit to return to work due to his diabetes mellitus.

    On the other hand, the Supreme Court found that respondents failed to present a scintilla of proof to establish the lack of casual connection between Apolinario’s disease and his employment as a seafarer.

    The Court stated that had respondents granted Apolinario’s request to undergo a post-employment medical check-up, they could have presented a medical finding to contradict the presumption of work-relatedness of Apolinario’s illness. The post-employment medical check-up could have been the proper basis to determine the seafarer’s illness, whether it was work-related, or its specific grading of disability. Having failed to present any evidence to defeat the presumption of work-relatedness of Apolinario’s diabetes mellitus, the prima facie case that it is work-related prevails.

    Nonetheless, the Supreme Court clarified that the presumption provided under Section 20 (A) (4) is only limited to the “work-relatedness” of an illness. It does not cover and extend to compensability. In this sense, there exists a fine line between the work-relatedness of an illness and the matter of compensability. Work-relatedness merely relates to the assumption that the seafarer’s illness, albeit not listed as an occupational disease, may have been contracted during and in connection with one’s work, whereas compensability pertains to the entitlement to receive compensation and benefits upon a showing that a seafarer’s work conditions caused or at least increased the risk of contracting the disease.

    The Supreme Court noted the medically accepted finding that stress has major effects on a person’s metabolic activity. The effects of stress on glucose metabolism are mediated by a variety of counter-regulatory hormones that are released in response to stress and that result in elevated blood glucose levels and decreased insulin action. In diabetes, because of a relative or absolute lack of insulin, the increase in blood glucose on account of stress cannot be adequately metabolized. Thus, stress is a potential contributor to chronic hyperglycemia in diabetes.

    In this case, to prove that his work conditions caused or at least increased the risk of contracting the disease, Apolinario showed that part of his duties as an Ordinary Seaman in MV Algosaibi 42 involved strenuous workload such as assist in the handling and operation of all deck gear such as topping, cradling and housing of booms; aid the carpenter in the repair work when requested; scale and chip paint, handle lines in the mooring of the ship, assist in the actual tying up and letting go of the vessel and stand as a lookout in the vessel. Apolinario further stated that while inside the vessel for several months, he was exposed to physical and psychological stress due to rush jobs, lack of sleep, heat stress, emergency works and homesickness for being away from his family. From the above enumeration of Apolinario’s duties on board the vessel, he was certainly exposed to various strain and stress — physical, mental and emotional.

    Respondents failed to adduce any contrary medical findings from the company-designated physician to show that Apolinario’s illness was not caused or aggravated by his working conditions on board the vessel. There was also no showing that Apolinario is predisposed to the illness by reason of genetics, obesity or old age. Thus, the Supreme Court considered that the stress and strains he was exposed to on board contributed, even to a small degree, to the development of his disease. Inasmuch as compensability is the entitlement to receive disability compensation upon a showing that a seafarer’s work conditions caused or at least increased the risk of contracting the disease, Apolinario’s disease was thus declared compensable.

    RE: Reportorial Requirement

    While the requirement to report within three working days from repatriation appears to be indispensable in character, the Supreme Court enumerated the established exceptions to this rule:

    • when the seafarer is incapacitated to report to the employer upon his repatriation; and
    • when the employer inadvertently or deliberately refused to submit the seafarer to a post-employment medical examination by a company-designated physician.4Falcon Maritime and Allied Services, Inc., et al. v. Angelito B. Pangasian, G.R. No. 223295, March 13, 2019.

    Here, Apolinario avers that two days after his repatriation to Manila on 11 April 2012, he reported to the office of 88 Aces to get his unpaid wages and for him to be referred to the company designated physician. However, since his repatriation was due to the completion of his six-month Philippine Overseas Employment Administration-approved employment contract, he was told by 88 Aces through Jocson that they could not shoulder his medical expenses. Having been denied to undergo the post medical examination, Apolinario just continued taking the medicine given to him by the doctor in Saudi Arabia.

    Between the two conflicting allegations from Apolinario and respondents, the Supreme Court resolved the doubt in favor of Apolinario. Besides, the factual backdrop of the case supports Apolinario’s allegation that he requested to be referred to a company designated physician. It noted that Apolinario repeatedly experienced dizziness and headaches, and needed medical attention while on board MV Algosaibi 42. In fact, because of his recurring sickness, he was examined twice at As Salama Hospital in Al-Khobar Saudi Arabia and even underwent thorough treatment thereat 10 days prior to his repatriation to Manila. Given Apolinario’s sensitive medical condition days prior to his repatriation, The Court doubted respondents’ allegation that Apolinario did not request to be referred to post-employment medical examination when he arrived in Manila. Apolinario’s medical condition during and after his employment on board lends credence to his claim that he asked to be medically examined by a company-designated physician but he was prevented so by respondents.

    According to the Supreme Court, respondents had the opportunity to refer Apolinario to a company-designated physician, but they chose to escape their responsibility. Between the non-existent medical assessment of the company-designated physician and the medical assessment of Apolinario’s doctor of choice — stating that his disability is permanent and total — the latter evidently stands. Absent a certification from the company-designated physician, the law steps in to conclusively characterize his disability as total and permanent.

    Further Reading:

    • Zonio, Jr. v. 88 Aces Maritime Services, Inc., G.R. No. 239052, October 16, 2019.

  • Well Aware of Her Fixed-Term Employment

    Madelyn narrated that in April 2010, the school engaged her as a releasing clerk in its book sale, tasking her with the inventory and release of books to the school’s students.

    In July 2010, Madelyn worked as a filing clerk at the school’s Human Resources Department, where she updated employees’ files, delivered memoranda to different departments, and assisted in school programs. In April 2011, she was posted back as a releasing clerk. She held this position until July 14, 2011.

    On July 15, 2011, she worked as a secretary at the school’s Technical-Vocational Training Center (Claretech), which taught vocational and technical skills to underprivileged students. There she prepared materials, assisted in the delivery of correspondence to other departments, and encoded and filed documents.

    In May 2013, the school asked Madelyn to sign a Probationary Employment Contract covering the period of January 16, 2013 to July 15, 2013. When the contract expired, she was told that her tenure would expire on July 31, 2013 because of a change in school administration and due to cost-cutting.

    But Madelyn was able to work for the school starting August 1, 2013 as a substitute teacher aide at the school’s Child Study Center. When the permanent teacher aide returned on October 25, 2013, Madelyn stopped working for the school.

    Madelyn repeatedly pleaded to be reinstated at least as a checker at the school’s water station, but the school denied her requests.

    Thus, Madelyn filed her Complaint, claiming that she had been a regular employee since she performed various jobs that were usually necessary and desirable in the usual business of the school.

    The school denied Madelyn’s claims averring that she was merely a part-time fixed-term contractual employee whom the school accommodated because her husband was its longtime driver. It also argued that Madelyn was well aware of her fixed-term employment as confirmed by her application letters and biodata, which showed her employment’s duration.

    Moreover, the school claimed that Madelyn’s position at Claretech was not a plantilla position because the department was only at its experimental stage, merely relying on donations and the school’s marketing research fund. When Claretech began incurring deficits, the clerical functions were allegedly absorbed by the administrator’s functions, dissolving Madelyn’s position.

    Was Madelyn engaged under a fixed-term employment?

    The Supreme Court ruled in the negative.

    The Supreme Court reiterated the principles in Brent School v. Zamora which recognized the validity of fixed-term employment under both the Civil Code and the Labor Code of the Philippines, as follows:

    Brent recognized that the Civil Code and the Labor Code of the Philippines allow the execution of fixed-term employment contracts. But when periods have been imposed to prevent an employee from acquiring his or her security of tenure, the contract effectively runs counter to public policy and morals, and must, therefore, be disregarded.

    In drawing the line, Brent laid down the criteria under which a fixed-term employment cannot be deemed in circumvention of the security of tenure:

    • When the parties have knowingly and voluntarily agreed upon a fixed period of employment “without any force, duress[,] or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent”; or
    • When “it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms” with the employer not having exercised any moral dominance over the employee.

    The rationale behind this safeguard is that when a prospective employee, on account of special skills or market forces, is in a position to make demands upon the prospective employer, such prospective employee needs less protection than the ordinary worker. Lesser limitations on the parties’ freedom of contract are thus required for the protection of the employee.

    The Supreme Court has emphasized that Brent is the exception rather than the general rule, and a fixed-term employment is recognized as valid only under certain circumstances, particularly when a fixed-term is an essential and natural appurtenance.

    Moreover, the Court held that in determining the validity of a fixed-term employment, the level of protection accorded to labor is ascertained based on the nature of the work, qualifications of the employee, and other relevant circumstances.

    Hence, the criteria limit the application of Brent to particular cases where the employer and the employee are on a more or less equal footing in entering into the contract. If none of the aforementioned criteria are present, the Court will strike down a fixed-term employment contract.

    In the present case, the Supreme Court found no contract evidencing Madelyn’s fixed-term employment. The Court said that this militated against the school’s assertion of fixed-term employment. According to the Court, the decisive determinant in fixed-term employments is the day certain agreed upon by the parties for the commencement and termination of their employment relationship. For the Court no day certain was agreed upon by the parties.

    The Court noted that the school persistently asserted that Madelyn should have known that her employment was only for a fixed term given the circumstances and nature of her job. However, the Court found that the school failed to present the contracts for the positions held by Madelyn. The Court said that absent any contract, it cannot be said that Madelyn was informed of the nature of her employment, as well as the duration and scope of her work. A fixed-term employment, the Court said, cannot be held valid based on mere allegations and speculations.

    Furthermore, although the school argued that she executed a Memorandum of Agreement that provided for the terms of her employment, the Court found that such agreement referred to her engagement as a substitute teacher aide. As for the rest of the positions she held, the school failed to provide any contract.

    The Court ruled even then the criteria in Brent were absent. According to the Court the school did not deal with Madelyn in more or less equal terms with no moral dominance on its part. Madelyn’s whole family depended on the school. Her husband was the school’s longtime driver and their children were its scholars. Madelyn was a high school graduate whose ordinary qualifications compelled her to accept the various positions offered by the school. The Court said that given these circumstances, Madelyn was not in a position to bargain on the terms of her employment. It could not be said that no moral dominance was exerted by the school merely because both parties benefitted from the fixed-term employment.

    The Court added that there could be no genuine freedom to contract when a fixed-term employment is used as a vehicle to exploit the economic disadvantage of workers like Madelyn. Plain wage earners should not be faulted for tolerating jobs they desperately need. Brent recognized the validity of fixed-term employments only within the context that employers and employees are on an equal footing. That employees agree to be repeatedly hired on a fixed-term basis only reveals the deeper problem of poverty and growing economic inequality between labor and capital.

    The Court declared that Madelyn was a regular employee of the school for her repeated engagement under contract of hire was indicative of the necessity and desirability of her work. Her services as a clerk at the book sale, as a secretary at Claretech, and as a substitute teacher aide were found to be necessary and desirable to the school’s business as an educational institution. The school’s repeated hiring of Madelyn for over three (3) years only strengthened the conclusion that her services are necessary and desirable to its business.

    Further reading:

    • Claret School of Quezon City v. Sinday, G.R. No. 226358, October 9, 2019.