Paulino Ungos III

Lawyer | Law Professor | Author

Tag: 2021-03

  • The Seafarer Received His Medical Report When the Parties Filed Their Position Papers

    On March 13, 2013, Leobert signed a 10-month contract as an Assistant Cook with Holland America Line Westours, Inc. (Holland America) through its agent, United Philippine Lines, Inc. (UPL). Leobert boarded the “MS Zuiderdam” on March 27, 2013.

    Leobert claimed that while performing his duties as an Assistant Cook, he experienced severe pain in his left shoulder, prompting him to notify his superior. He was advised to go to the infirmary, where the ship doctor prescribed pain relievers and advised him to rest for a few days. Leobert then requested an offshore consultation, but Holland America chose medical repatriation. Leobert was medically repatriated and arrived in the Philippines on April 10, 2013.

    Leobert reported to UPL for his post-disembarkation medical check-up on April 10, 2013, and was referred to Shiphealth, Inc., (Shiphealth) where he was advised to undergo physical therapy sessions. He was referred to the University Physicians Medical Center, Inc. after his condition did not improve, and he underwent medical tests. He then returned to Shiphealth and was instructed to obtain his medical records from UPL. He was told verbally that he was fit to work, but he was unable to obtain any documentation of his medical evaluation from UPL.

    From September 10, 2013 to October 8, 2013, Leobert sought medical advice from Seamen’s Hospital, where it was recommended that he undergo arthroscopic surgery. He also spoke with Dr. Cesar H. Garcia, an orthopedist who specializes in bone and joint diseases, who determined that Leobert was unfit to work as a seaman due to his shoulder injury. Leobert claimed that he was forced to seek medical help from independent doctors because Shiphealth and UPL refused to provide him with his medical records, and that he sought medical help from other doctors on his own initiative.

    On September 11, 2013, Leobert filed a complaint against Holland America and UPL, believing he was entitled to permanent total disability benefits.

    According to Holland America and UPL, Leobert was diagnosed with “Grade 10 — ankylosis of the shoulder joint not permitting arm to be raised above a level with a shoulder and/or irreducible fracture or faulty union collar bone” on June 14, 2013. However, Holland America and UPL claimed that Leobert was only entitled to US$12,090.00.

    Holland America and UPL also claimed that because Leobert failed to demonstrate that the company-designated physician’s assessment was tainted with bias, malice, or bad faith, and he failed to comply with the procedure under Section 20 (A) (3) of the POEA Standard Employment Contract for challenging the company-designated physician’s assessment, he was only entitled to the benefits resulting from the company-designated physician’s findings.

    Was Leobert entitled to permanent total disability benefits?

    The Supreme Court ruled in the affirmative.

    The Court noted that Holland America and UPL did not deny that Leobert’s injuries were work-related, but instead argued that Leobert was only entitled to disability benefits under Grade 10. Because Leobert failed to initiate the process to have the conflicting assessments of the company-designated physician and his own doctor referred to a third doctor, Holland America and UPL argued that the company-designated physician’s assessment is valid and should be relied on instead of the seafarer’s own doctor.

    While the Court recognized the conflict resolution procedure prescribed in Section 20 (A) (3) of the POEA Standard Employment Contract, it clarified that a seafarer’s failure to follow such procedure is only taken against him if it is first demonstrated that the seafarer was notified of the company-designated physician’s assessment. According to the Court, only after the seafarer has been duly and properly informed of the medical assessment can he decide whether or not he agrees with it. If he does not agree, he can begin the process of referring the assessment to his personal physician, after which the conflicting assessments are referred to a third doctor.

    The Court stressed its ruling in Gere v. Anglo-Eastern Crew Management Phils., Inc.1G.R. Nos. 226656 & 226713, April 23, 2018. in that the company-designated physician is mandated to issue a medical certificate, which should be personally received by the seafarer, or, if not practicable, sent to him/her by any other means sanctioned by present rules. Proper notice is one of the cornerstones of due process, the Court said, and the seafarer must be accorded the same especially so in cases where his/her well-being is at stake. If the seafarer is not notified of the evaluation of the company-designated physician after the lapse of the 120 or 240 day period from the date the seafarer first reported to the said physician, the Court states that by operation of law, the seafarer is deemed entitled to permanent total disability benefits.

    In the present case, the Court determined that Leobert was only shown the assessment of his impediment after Holland America and UPL had filed their position paper. Since the final and valid assessment of Leobert’s condition was not issued within the 120 or 240-day period, the Court ruled that Leobert was legally entitled to permanent total disability benefits.

    Further reading:

    • United Philippine Lines, Inc. v. Ramos, G.R. No. 225171, March 18, 2021.

  • We Laid the Employee Off to Re-assess His Qualifications

    On August 13, 2012, Jayraldin was hired by The Results Company, Inc. (TRCI), a business process outsourcing company. Jayraldin started as a sales representative and was promoted several times until he became a team leader in 2014. As a team leader, Jayraldin had the duty of supervising TRCI’s agents.

    On December 30, 2014, Jayraldin received an email from TRCI, informing him of infractions allegedly committed by Ruby, an agent under his supervision. Allegedly, based on quality call monitoring, Ruby incorrectly processed a customer’s order and failed to fully apprise the customer of TRCI products.

    TRCI’s Operations Manager decided to give Ruby a final written warning. However, Jayraldin, together with TRCI’s program managers, recommended that Ruby only be subjected to coaching.

    Later, Jayraldin was handed a notice stating that he was grossly negligent in the performance of an assigned task and that he willfully disobeyed an order of a superior, when he failed to give Ruby a Notice to Explain and final warning. The same notice placed him under preventive suspension and summoned him to an administrative hearing.

    Jayraldin explained that all program managers recommended that Ruby be provided only with coaching and that he had fulfilled his duty to issue her a Notice to Explain.

    After administrative proceedings, Jayraldin was admonished with a warning that a similar violation of TRCI’s Code of Discipline might lead to his dismissal. Jayraldin was also placed on temporary lay-off. Specifically, he was subjected to re-profiling until he was ready for re-assignment to another account. During the lay-off, Jayraldin was not to receive any compensation.

    Jayraldin thus filed a complaint for constructive dismissal against TRCI.

    TRCI contended that it only exercised its management prerogative. According to TRCI, it temporarily laid Jayraldin off so that it could assess his qualifications and re-assign him to other accounts, if needed.

    Was Jayraldin constructively dismissed from employment?

    The Supreme Court found that Jayraldin was constructively dismissed from employment.

    The Court stated that constructive dismissal exists where there is cessation of work because continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank or a diminution in pay and other benefits. Aptly called a dismissal in disguise or an act amounting to dismissal but made to appear as if it were not, constructive dismissal may, likewise, exist if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment.1Morales v. Harbour Centre Port Terminal, Inc., G.R. No. 174208, January 25, 2012.

    With regard to transfer of an employee, the Court added that the employer is charged with the burden of proving that its conduct and action are for valid and legitimate grounds, such as genuine business necessity, and that the transfer is not unreasonable, inconvenient or prejudicial to the employee. If the employer cannot overcome this burden of proof, the employee’s transfer shall be tantamount to unlawful constructive dismissal.2Morales v. Harbour Centre Port Terminal, Inc., G.R. No. 174208, January 25, 2012.

    In the present case, while the Court noted that the infraction that led to Jayraldin’s re-profiling was his failure to inform his subordinate of the penalty given by the Operations Manager, it found nothing on record to show that Jayraldin’s infraction was detrimental to the account he handled such that TRCI had no choice but to re-profile him.

    The Court added that Jayraldin was in reality not even transferred to any account. According to the Court, Jayraldin was temporarily laid-off and treated like a new applicant where he would be assessed for other accounts to see if he was qualified. However, the Court found that in the interim, Jayraldin’s economic circumstances became murky. His compensation ceased for a period not to exceed six months as he awaited being accepted into a new account. Worse, he had no assurance whether he would be considered for another account.

    The Court was convinced that TRCI failed to prove any valid and legitimate ground to re-profile Jayraldin as its drastic action was not commensurate to his transgressions. TRCI just made it appear on paper that Jayraldin was still its employee, but in reality he no longer received benefits, was placed in such a situation without any legitimate ground, and was treated like a new applicant. For the Court, this was clearly a dismissal in disguise and tantamount to constructive dismissal.

    On TRCI’s argument that it exercised its management prerogative, the Court did not accept the same, in view of the prejudice against Jayraldin and the lack of legitimate ground to place him on temporary lay-off. According to the Court, although the exercise of management prerogative will ordinarily not be interfered with, it is not absolute and it is limited by law, collective bargaining agreement, and general principles of fair play and justice. Said the Court: “Indeed, having the right should not be confused with the manner in which that right is exercised.”

    As a result of being constructively dismissed, Jayraldin was awarded separation pay, backwages, and attorney’s fees.

    Further reading:

    • Ebus v. The Results Co., Inc., G.R. No. 244388, March 3, 2021.