328 Phil. 161
ROMERO, J.:
"The issue to be resolved is whether or not complainant was illegally dismissed.Aggrieved, petitioner Stolt-Nielsen appealed to the National Labor Relations Commission (NLRC).
We rule in the affirmative.
Record shows that on April 26, 1990, complainant was directed by the master of the vessel to carry the luggage of an outgoing seaman offshore. Complainant, however, refused to obey the said order, hence, his dismissal from his employment.
Evaluating the reason for complainant's dismissal, we find the penalty imposed too severe considering the violation committed. To our mind, a warning would have been sufficient since this was the first offense committed. Moreover, as a radio officer, it is not one of his official duties to carry the luggage of outgoing seaman.
In the light of the foregoing, we hold that complainant's dismissal due to the aforesaid incident arbitrary, whimsical and contrary to human nature and experience, hence, not justified. Accordingly, he is entitled to his salaries for the unexpired portion of his contract computed as follows:1. Remaining portion of his contract -6 months & 3 daysComplainant's claim for day's leave with pay for the unexpired portion of the contract is hereby denied since the same is only given during actual service.
2. Basic salary -US$1,024.00
3. Fixed Overtime -420.00[1]
Total US$1,434.00
4. Salary/day =($1,434/30 days) = US$47.8/day
5. Salary for 3 days - ($47.8 x 3) = US$143.4
6. Salary for 6 months - ($1,434 x 6) = US$8,604.00
7. Salary for the unexpired portion of his contract
(basic salary + fixed O.T.)
for 6 months and 3 days
(US$8,604 + 143.4) = US$8,747.40
The claim for damages is hereby denied for want of jurisdiction.
Complainant is however entitled to five (5%) percent of the total award as and by way of attorney's fees.
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered ordering respondent to pay complainant the following or its peso equivalent at the time of payment:
1. EIGHT THOUSAND SEVEN HUNDRED FORTY SEVEN & 40/100 US DOLLARS (US$8,747.40) or its peso equivalent at the time of payment, as salaries for the unexpired portion of his contract.
2. Five percent (5%) of the total award as and by way of attorney's fees.
All other claims are hereby DENIED for lack of merit.
SO ORDERED."[2]
"2. The seaman binds himself to the following:It likewise adverts to Article XXIV, Section 1 of the CBA, viz:
'a. To faithfully comply with and observe the terms and conditions of this contract, violation of which shall be subject to disciplinary action pursuant to appendix 2 of this crew contract.
xxx xxx xxx
d. To be obedient to the lawful commands of the master or any person who shall succeed him.'"
"Authority of the MasterPetitioner contends that since the captain's order to assist the crew member who was being repatriated in carrying his baggage is lawful, private respondent's refusal to obey the command is willful, thus warranting his dismissal.
Section 1. It is understood and agreed that nothing contained in this is intended or shall be construed so as to restrict in any way the superiority of the Master or prevent the obedience of any member of the crew to any lawful order of any superior officer." (Underscoring ours)
Article 282 of the Labor Code provides in part:Willful disobedience of the employer's lawful orders, as a just cause for the dismissal of an employee, envisages the concurrence of at least two (2) requisites: the employee's assailed conduct must have been willful or intentional, the willfulness being characterized by a "wrongful and perverse attitude"; and the order violated must have been reasonable, lawful, made known to the employee and must pertain to the duties which he had been engaged to discharge.[4]
"Art. 282. Termination by Employer. - An employer may terminate an employment for any of the following causes: a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;xxx xxx xxx
"x x x We believe that not every case of insubordination or willful disobedience by an employee of a lawful work-connected order of the employer or its representative is reasonably penalized with dismissal. For one thing, Article 282 (a) refers to "serious misconduct or willful disobedience - - -". There must be reasonable proportionality between, on the one hand, the willful disobedience by the employee and, on the other hand, the penalty imposed therefor. x x x"In instant case, the POEA found that private respondent's actuation which led to his dismissal was the first and only act of disobedience during his service with the petitioner. Furthermore, examination of the circumstances surrounding private respondent's disobedience shows that the repatriated seaman's utterance of "makakasaksak ako" so instilled fear in private respondent that he was deterred from carrying out the order of the captain. Hence, his act could not be rightfully characterized as one motivated by a "wrongful and perverse attitude." Besides, said incident posed no serious or substantial danger to the well-being of his other co-employees or of the general public doing business with petitioner employer. Neither did such behavior threaten substantial prejudice to the business of his employer.
"Anent the overtime pay, complainant alleged that he is entitled thereto as the same is a fixed overtime pay. The respondents failed to controvert said allegations. In short, the complainant's claim for overtime pay was undisputed and for this reason, the grant of this claim must be upheld."[6]Petitioner, on the other hand, cites this Court's pronouncement in Cagampan v. NLRC,[7] thus:
"As regards the question of overtime pay, the NLRC cannot be faulted for disallowing the payment of said pay because it merely straightened out the distorted interpretation asserted by petitioners and defined the correct interpretation of the provision on overtime pay embodied in the contract conformably with settled doctrines on the matter. Notably, the NLRC ruling on the disallowance of overtime pay is ably supported by the fact that petitioners never produced any proof of actual performance of overtime work.WHEREFORE, the decision of the NLRC is hereby AFFIRMED with the modification that the award for overtime pay should be DELETED.
Petitioners have conveniently adopted the view that the "guaranteed or fixed overtime pay of 30% of the basic salary per month" embodied in their employment contract should be awarded to them as part of a "package benefit." They have theorized that even without sufficient evidence of actual rendition of overtime work, they would automatically be entitled to overtime pay. Their theory is erroneous for being illogical and unrealistic. Their thinking even runs counter to the intention behind the provision. The contract provision means that the fixed overtime pay of 30% would be the basis for computing the overtime pay if and when overtime work would be rendered. Simply stated, the rendition of overtime work and the submission of sufficient proof that said work was actually performed are conditions to be satisfied before a seaman could be entitled to overtime pay which should be computed on the basis of 30% of the basic monthly salary. In short, the contract provision guarantees the right to overtime pay but the entitlement to such benefit must first be established. Realistically speaking, a seaman, by the very nature of his job, stays on board a ship or vessel beyond the regular eight-hour work schedule. For the employer to give him overtime pay for the extra hours when he might be sleeping or attending to his personal chores or even just lulling away his time would be extremely unfair and unreasonable."
Petitioner's argument is well taken. A close scrutiny of the computation of the monetary award[8] shows that the award for overtime was for the remaining six (6) months and three (3) days of private respondent's contract at which time he was no longer rendering services as he had already been repatriated. In light of our aforequoted ruling in Cagampan v. NLRC, said award for overtime should be, as it is hereby, disallowed for being unjustified.