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574 Phil. 441


[ G.R. No. 172038, April 14, 2008 ]




This petition for review on certiorari[1] seeks to set aside the November 26, 2004 decision[2] and March 9, 2006 resolution[3] of the Court of Appeals (CA) in CA-G.R. SP No. 74097. 

Respondent Elite Shipping A.S. hired petitioner Dante D. de la Cruz as third engineer for the vessel M/S Arktis Morning through its local agency in the Philippines, co-respondent Maersk Filipinas Crewing Inc. The contract of employment was for a period of nine months, starting April 19, 1999, with a monthly basic salary of US$1,004.00 plus other benefits. 

Petitioner was deployed to Jebel Ali, United Arab Emirates and boarded M/S Arktis Morning on May 14, 1999. 

In a logbook entry dated June 18, 1999, chief engineer Normann Per Nielsen expressed his dissatisfaction over petitioner's performance:
3rd Eng. Dante D. de la Cruz has[,] since he signed on[,] not been able to live up to the company's SMS job describtion (sic) for 3rd Engineer[.] Today he has been informed that if he do[es] not improve his Job/Working performance within [a] short time he will be signed off according to CBA Article 1 (7).
Said Article 1 (7) of the collective bargaining agreement (CBA) between respondent Elite Shipping A.S. and its employees reads:
(7) The first sixty (60) days of service is to be considered a probationary period which entitles a shipowner or his representative, i.e.[,] the master of the vessel[,] to terminate the contract by giving fourteen (14) days of written notice.
This entry was followed by another one dated June 26, 1999 which was similar in content.

On June 27, 1999, petitioner was informed of his discharge through a notice captioned "Notice according to CBA Article 1 (7)," to wit:
To: 3rd engineer Dante D. de la Cruz 

Pls. be informed that you will be discharged according to CBA article 1 (7) in first possible port. Reason for the decision is, as you have been informed by chief engineer Per Nielsen on several occasions, he [does] not find you qualified for the position as 3rd engineer onboard this vessel. The chief engineer has also made 2 entries in the engine logbook, regarding your insufficient job/working, which you are well aware of.
Petitioner was then made to disembark at the port of Houston, Texas and was repatriated to Manila on July 17, 1999.

Petitioner thereafter filed a complaint for illegal dismissal with claims for the monetary equivalent of the unexpired portion of his contract, damages and attorney's fees in the National Labor Relations Commission (NLRC) on September 21, 1999.

The labor arbiter (LA) ruled that petitioner was dismissed without just cause and due process as the logbook entry (which respondents claimed to be the first notice to petitioner) was vague. It failed to expound on or state the details of petitioner's shortcomings or infractions. As such, petitioner was deprived of a real or meaningful opportunity to explain his side. Hence, the LA ruled that petitioner was entitled to a monetary equivalent of salaries for three months, moral and exemplary damages and attorney's fees. 

On appeal, the NLRC upheld the LA's finding of illegal dismissal but deleted the award of moral and exemplary damages. Respondents moved for reconsideration. It was denied. 

Thereafter, respondents filed a petition for certiorari (under Rule 65) with the CA. It granted the petition. It held that, although the findings of fact of the LA and NLRC were entitled to great respect, this rule was inapplicable because the NLRC committed grave abuse of discretion in upholding the LA's decision. The findings were not only unsupported by substantial evidence but were also based solely on the ground that the logbook entries were vague and without concrete standards. 

The CA deemed the logbook entries to be sufficient compliance with the first notice requirement of the law. It was a written appraisal of petitioner's poor job performance coupled with a warning that should he fail to improve his performance, he would be signed off in accordance with the provisions of the CBA. It reasoned that a probationary employee may be dismissed at anytime during the probationary period for failure to live up to the expectations of the employer. 

Petitioner filed a motion for reconsideration of the CA decision. It was denied. Hence, this petition.

The main issue raised before us is whether or not petitioner was illegally dismissed by respondents. 

Before addressing the merits of the controversy, we need to settle two preliminary issues. First, respondents interposed in their comment that the present petition should be dismissed outright as the motion for extension of time to file this petition for review was filed late. 

In his petition, petitioner indicated that he received a copy of the CA resolution (dated March 9, 2006) denying his motion for reconsideration on March 24, 2006. He, therefore, had until April 8, 2006 to appeal said resolution to this Court or to file a motion for extension of time to file the petition. However, as April 8, 2006 fell on a Saturday, petitioner deemed it sufficient compliance to file his motion for extension on April 10, 2006, in accordance with Section 1, Rule 22 of the Rules of Court:
SECTION 1. How to compute time. - xxx If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day.
Respondents countered that A.M. No. 00-2-14-SC dated February 29, 2000 (Re: Computation of Time When the Last Day Falls on Saturday, Sunday or Legal Holiday and a Motion for Extension on Next Working Day is Granted) clarified that the aforementioned rule is applicable only to the filing of pleadings other than motions for extension of time, such that when a party seeks an extension to file a desired pleading, the provision no longer applies and the motion should be filed on the due date itself, regardless of the fact that it falls on a Saturday, Sunday or legal holiday.

Respondents' contention is incorrect. 

A.M. No. 00-2-14-SC provides:

Whereas, the aforecited provision [Section 1, Rule 22 of the Rules of Court] applies in the matter of filing of pleadings in courts when the due date falls on a Saturday, Sunday or legal holiday, in which case, the filing of the said pleading on the next working day is deemed on time; 

Whereas, the question has been raised if the period is extended ipso jure to the next working day immediately following where the last day of the period is a Saturday, Sunday or legal holiday so that when a motion for extension of time is filed, the period of extension is to be reckoned from the next working day and not from the original expiration of the period. 

NOW THEREFORE, the Court Resolves, for the guidance of the Bench and the Bar, to declare that Section 1, Rule 22 speaks only of "the last day of the period" so that when a party seeks an extension and the same is granted, the due date ceases to be the last day and hence, the provision no longer applies. Any extension of time to file the required pleading should therefore be counted from the expiration of the period regardless of the fact that said due date is a Saturday, Sunday or legal holiday. (emphasis supplied)
Section 1, Rule 22, as clarified by the circular, is clear. Should a party desire to file any pleading, even a motion for extension of time to file a pleading, and the last day falls on a Saturday, Sunday or a legal holiday, he may do so on the next working day. This is what petitioner did in the case at bar. 

However, according to the same circular, the petition for review on certiorari was indeed filed out of time. The provision states that in case a motion for extension is granted, the due date for the extended period shall be counted from the original due date, not from the next working day on which the motion for extension was filed. In Luz v. National Amnesty Commission,[4] we had occasion to expound on the matter. In that case, we held that the extension granted by the court should be tacked to the original period and commences immediately after the expiration of such period. 

In the case at bar, although petitioner's filing of the motion for extension was within the period provided by law, the filing of the petition itself was not on time. Petitioner was granted an additional period of 30 days within which to file the petition. Reckoned from the original period, he should have filed it on May 8, 2006. Instead, he did so only on May 11, 2006, that is, 3 days late. 

Nevertheless, we will gloss over this technicality and resolve the case on its merits in the exercise of this Court's equity jurisdiction as we have done in a number of cases.[5]

Well settled is the rule that litigations should, as much as possible, be decided on their merits and not on technicalities.[6] In accordance with this legal precept, this Court has ruled that being a few days late in the filing of the petition for review does not automatically warrant the dismissal thereof,[7] specially where strong considerations of substantial justice are manifest in the petition.[8] Such is the case here.

The second preliminary issue we need to address is the matter of this Court's jurisdiction in petitions for review on certiorari under Rule 45. It should be noted that our jurisdiction in such cases is limited only to questions of law. It does not extend to questions of fact. This doctrine applies with greater force in labor cases.[9] As such, the findings of fact of the CA are binding and conclusive upon this Court. However, this rule is not absolute but admits of certain exceptions. Factual findings may be reviewed in a case when the findings of fact of the LA and the NLRC are in conflict with those of the CA.[10] In this case, the LA and the NLRC held that respondents did not comply with the notice requirement; the CA found otherwise. Thus, although the instant petition involves a question of fact, that is, whether or not the notice requirement was met, we can still rule on it. 

Now, the merits of the instant controversy. 

The CA committed an error in holding that petitioner was not illegally dismissed.  The contrary findings and conclusions made by the LA and the NLRC were supported by jurisprudence and the evidence on record. 

An employer has the burden of proving that an employee's dismissal was for a just cause. Failure to show this necessarily means that the dismissal was unjustified and therefore illegal.[11] Furthermore, not only must the dismissal be for a cause provided by law, it should also comply with the rudimentary requirements of due process, that is, the opportunity to be heard and to defend oneself.[12]

These requirements are of equal application to cases of Filipino seamen recruited to work on board foreign vessels. Procedural due process requires that a seaman must be given a written notice of the charges against him and afforded a formal investigation where he can defend himself personally or through a representative before he can be dismissed and disembarked from the vessel.[13] The employer is bound to furnish him two notices:  (1) the written charge and (2) the written notice of dismissal (in case that is the penalty imposed).[14] This is in accordance with the POEA Revised Standard Employment Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean-Going Vessels (POEA Revised Standard Employment Terms and Conditions). 

Section 17 of the POEA Revised Standard Employment Terms and Conditions laid down the disciplinary procedures to be taken against erring seafarers:

The Master shall comply with the following disciplinary procedures against an erring seafarer:
  1. The Master shall furnish the seafarer with a written notice containing the following:

    1. Grounds for the charges as listed in Section 31 of this Contract.

    2. Date, time and place for a formal investigation of the charges against the seafarer concerned.

  2. 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. An entry on the investigation shall be entered into the ship's logbook.

  3. 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, with copies furnished to the Philippine agent.
xxx                   xxx                   xxx
Furthermore, the notice must state with particularity the acts or omissions for which his dismissal is being sought.[15]

Contrary to respondents' claim, the logbook entries did not substantially comply with the first notice, or the written notice of charge(s). It did not state the particular acts or omissions for which petitioner was charged. The statement therein that petitioner had "not been able to live up to the company's SMS job description for 3rd Engineer" and that he had "been informed that if he [does] not improve his job/working performance within [a] short time he will have to be signed off according to CBA Article 1 (7)" was couched in terms too general for legal comfort. 

The CA held that the logbook entries were sufficient to enable petitioner to explain his side or to contest the negative assessment of his performance and were clearly intended to inform him to improve the same. We cannot fathom how the CA arrived at such a conclusion. The entries did not contain any information at all as to why he was even being warned of discharge in the first place. Even we were left to speculate as to what really transpired, calling for such an extreme course of action from the chief engineer. The entries raised more questions than answers. 

How exactly was he unable to live up to the company's SMS job description of a third engineer? Respondents should have indicated the grounds for the threatened termination, the specific acts or omissions illustrating the same, along with the date and the approximate time of their occurrence. For how else could petitioner be expected to meet the charges against him if all he was given as reason for his discharge was a vague and general accusation such as that handed down by the chief engineer? Even if the chief engineer verbally informed him of what his specific shortcomings were, as insisted upon by respondents, the POEA Revised Standard Employment Terms and Conditions and jurisprudence require that the charges be put in writing. 

The same thing may be said of the written notice of dismissal. It sorely lacked the necessary details that should accompany it. Instead of delving into the grounds for petitioner's discharge, it merely echoed the logbook entries by nebulously justifying his dismissal on the ground that the chief engineer "[did] not find [petitioner] qualified for the position as 3rd engineer." Much like the first notice, it barely made mention of the grounds for his discharge. Again, we were left in the dark as to the nature of the acts or omissions relied upon as basis for the termination of petitioner's employment. 

These ambiguities, attributable solely to respondents, should be resolved against them. 

Moreover, we observed that the records were devoid of any proof indicating that petitioner was ever given an opportunity to present his side. In their comment, respondents in fact admitted not having conducted any formal investigation:
A formal investigation in this case was not necessary because the findings against petitioner were not in the form of infractions that ought to be investigated. The issue against petitioner was the quality of his work as 3rd Engineer. Having been duly notified of his shortcomings, it devolved upon the petitioner to improve the quality of his work in order to pass his probationary period and be a regular employee. But petitioner did not.
They also insisted that as petitioner was served notice of his termination, the same constituted sufficient compliance with the requirement of notice and due process as the notice gave him an opportunity to defend himself.[16]

Clearly, respondents were unmindful of the requirements explicitly laid down by law and jurisprudence. Anything short of complying with the same amounts to a dismissal.  Thus, no amount of justification from respondents can move us now to declare the dismissal as being in accordance with the procedural requirements provided for by law. It cannot be overemphasized that sufficient notice should be given as part of due process because a worker's employment is his property in the constitutional sense.[17]

As to the substantive aspect of the requirement, suffice it to say that respondents dismally failed to prove that petitioner's termination from employment was for cause. As the logbook entries were too general and vague, we cannot even reach any conclusion on whether or not respondents had a valid cause to discharge petitioner.  Not only was petitioner's dismissal procedurally flawed, it was also without just cause. 

Lastly, petitioner and respondents were at odds over the former's employment status when he was discharged from the vessel. It was petitioner's position that he was already a regular employee when his services were terminated; respondents, on the other hand, insisted that he was then still on probationary status. This, according to respondents, entitled them to dismiss him in accordance with the provisions of Article 1 (7) of the CBA (which allows the master to terminate the contract of one under probation by merely serving a written notice 14 days prior to the contemplated discharge) and the requirements on the termination of a probationary employee's employment as laid down in Manila Hotel Corporation v. NLRC.[18]

It is well to remind both parties that, as early as Brent School, Inc. v. Zamora,[19] we already held that seafarers are not covered by the term regular employment, as defined under Article 280 of the Labor Code. This was reiterated in Coyoca v. National Labor Relations Commission.[20] Instead, they are considered contractual employees whose rights and obligations are governed primarily by the POEA Standard Employment Contract for Filipino Seamen (POEA Standard Employment Contract), the Rules and Regulations Governing Overseas Employment, and, more importantly, by Republic Act No. 8042, otherwise known as The Migrant Workers and Overseas Filipinos Act of 1995.[21] Even the POEA Standard Employment Contract itself mandates that in no case shall a contract of employment concerning seamen exceed 12 months. 

It is an accepted maritime industry practice that the employment of seafarers is for a fixed period only. The Court acknowledges this to be for the mutual interest of both the seafarer and the employer. Seafarers cannot stay for a long and indefinite period of time at sea as limited access to shore activity during their employment has been shown to adversely affect them. Furthermore, the diversity in nationality, culture and language among the crew necessitates the limitation of the period of employment.[22]

While we recognize that petitioner was a registered member of the Associated Marine Officers and Seamen's Union of the Philippines which had a CBA with respondent Elite Shipping A.S. providing for a probationary period of employment, the CBA cannot override the provisions of the POEA Standard Employment Contract. The law is read into, and forms part of, contracts. And provisions in a contract are valid only if they are not contrary to law, morals, good customs, public order or public policy.[23]

In Millares v. NLRC,[24] this Court had occasion to rule on the use of the terms "permanent and probationary masters and employees" vis-à-vis contracts of enlistment of seafarers. In that case, petitioners made much of the fact that they were continually re-hired for 20 years by private respondent Esso International. By such circumstances, they claimed to have acquired regular status with all the rights and benefits appurtenant thereto. The Court quoted with favor the NLRC's explanation that the reference to permanent and probationary masters and employees was a misnomer. It did not change the fact that the contract for employment was for a definite period of time. In using the terms "probationary" and "permanent" vis-à-vis seafarers, what was really meant was "eligible for re-hire."

This is the only logical explanation possible as the parties cannot and should not violate the POEA's directive that a contract of enlistment must not exceed 12 months. 

WHEREFORE, the petition is hereby GRANTED. The November 26, 2004  decision and March 9, 2006 resolution of the Court of Appeals in CA-G.R. SP No. 74097 are REVERSED and SET ASIDE. The March 22, 2002 resolution of the National Labor Relations Commission in NLRC NCR CA No. 029139-01 is REINSTATED.


Associate Justice 


Chief Justice

ANTONIO T. CARPIO             
Associate Justice

(On Official Leave)
Associate Justice

Associate Justice

[1] Under Rule 45 of the Rules of Court.

[2] Penned by Associate Justice Portia Alino-Hormachuelos and concurred in by Associate Justices Rebecca De Guia-Salvador and Aurora Santiago-Lagman of the Seventh Division of the Court of Appeals. Rollo, pp. 311-324.

[3] Id., pp. 341-343.

[4] G.R. No. 159708, 24 September 2004, 439 SCRA 111, 115.

[5] Orata v. IAC, G.R. No. 73471, 8 May 1990, 185 SCRA 148, 152, citing St. Peter Memorial Park, Inc. v. Cleofas, 206 Phil 224, 233-234 (1983). In Ramos v. Bagasao, No. L-51552, 28 February 1980, 96 SCRA 395, we held that the delay of four (4) days in filing a notice of appeal and a motion for an extension of time to file a record on appeal can be excused on the basis of equity with the additional consideration that said record was then already with respondent judge.

[6] Id., citing Galdo v. Rosete, No. L-47342, 25 July 1978, 84 SCRA 239, 242-243.

[7] Id., citing Serrano v. CA, No. L-46307, 9 October 1985, 139 SCRA 179, 186.

[8] Id.

[9] Skippers United Pacific, Inc. v. NLRC, G.R. No. 148893, 12 July 2006, 494 SCRA 661, 667.

[10] Bernardo v. CA, G.R. No. 124261, 27 May 2004, 429 SCRA 285, 299-300. In that case, we held that the findings of fact of administrative bodies, if based on substantial evidence, are controlling on the reviewing authority. It is not for the appellate court to substitute its own judgment for that of the administrative agency on the sufficiency of the evidence and the credibility of the witnesses. Administrative decisions on matters within their jurisdiction are entitled to respect and can only be set aside on proof of grave abuse of discretion, fraud or error of law.

[11] Skippers United Pacific, Inc. v. NLRC, supra, citing Pascua v. NLRC, 351 Phil 48, 62 (1998).

[12] Pascua v. NLRC, supra, 62-63.

[13] See Seahorse Maritime Corporation v. NLRC, G.R. No. 84712, 15 May 1989, 173 SCRA 390. In that case, the Court held that as private respondent Singian was not informed of the cause or causes of his dismissal and was not investigated nor given a chance to air his side, his dismissal was without due process. However, the Court also ruled that his dismissal was for cause as he was given to drunkenness, violent temper, insubordination and habitual absenteeism. The Court found that these charges were not seriously controverted.

[14] Skippers United Pacific, Inc. v NLRC, supra note 9, citing Skippers Pacific, Inc. v. Mira, 440 Phil 906, 919 (2002) and Tingson v. NLRC, G.R. No. 84702, 18 May 1990, 185 SCRA 498, 502, citing National Service Corporation v. NLRC, No. L-69870, 29 November 1988, 168 SCRA 122.

[15] Bondoc v. NLRC, 342 Phil 250, 258 (1997).

[16] Per position paper for respondent, rollo, p. 35; reply to complainant's position paper, id., p. 75; and respondent's rejoinder, id., p. 88. However, in their notice and memorandum of appeal to the NLRC, id., p. 127, respondents, probably sensing the fallacy of their argument, contended that, "[c]omplainant was first notified to improve his performance. Thereafter he was given a notice of termination. The first notice gave him an opportunity not only to  improve his performance[,] but more importantly[,] to defend himself."  This argument was reiterated in their petition for certiorari filed in the CA, id., p. 168.

[17] Zagala v. Mikado Philippines Corporation, G.R. No. 160863, 27 September 2006, 503 SCRA 581, 589; Coca-Cola Bottlers, Phils., Inc. v. Kapisanan ng Malayang Manggagawa sa Coca-Cola-FFW,  G.R. No. 148205, 28 February 2005, 452 SCRA 480, 500; Asuncion v. NLRC, et al., 414 Phil 329, 336 (2001) and Maneja v. NLRC, 353 Phil 45, 66 (1998).

[18] 225 Phil 127, 135 (1986). This case enumerated the limitations for  the termination of a probationary employee's employment, to wit:
  1. It must be exercised in accordance with the specific requirements of the contract;

  2. If a particular time is prescribed, the termination must be within such time and if formal notice is required, then that form must be used;

  3. The employer's dissatisfaction must be real and in good faith, not feigned so as to circumvent the contract or the law;

  4. There must be no unlawful discrimination in the dismissal.
[19] G.R. No. 48494, 5 February 1990, 181 SCRA 702, 714.

[20] 312 Phil 1137, 1144 (1995).

[21] Skippers United Pacific, Inc. v. NLRC, supra note 9, citing Ravago v. ESSO Eastern Marine, Ltd., G.R. No. 158324, 14 March 2005, 453 SCRA 381, 402.

[22] Pentagon International Shipping, Inc. v. Adelantar, G.R. No. 157373, 27 July 2004, 435 SCRA 342, 348, citing Millares v. NLRC, 434 Phil 524, 539 (2002).

[23] Civil Code, Art. 1306.

[24] Supra.

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