Petitioner deployed, respondents to work on board the vessel MV Wisdom Star. Respondentsclaimed that Skippers failed to remit their respective allotments for almost five months, To date, however, Skippers only failed to remit the home allotment for the month of December 1998. Respondents were unceremoniously discharged from MV Wisdom Stars and immediately repatriated. Upon arrival in the Philippines, Respondents filed a complaint for illegal dismissal with the Labor Arbiter who dismissed herein action for lack of merit. Respondents’ filed an appeal to the NLRC who dismissed the appeal for lack of merit and affirmed the Labor Arbiter’s decision. The respondents appealed to the CA and granted the respondents petition and reversed the decisions of the Labor Arbiter and NLRC, Hence this petition.
a) Whether the Dismissal of the respondents is valid and the master’s telex message showing that the respondents voluntarily requested to be repatriated should be given due credence.
b) Whether the petitioners is liable to pay backwages and unremitted home allotment pay.
c) Whether the respondents is entitled with the award of attorney’s fees.
a) No, For a worker’s dismissal to be considered valid, it must comply with both procedural and substantive due process. The legality of the manner of dismissal constitutes procedural due process, while the legality of the act of dismissal constitutes substantive due process. Procedural due process in dismissal cases consists of the twin requirements of notice and hearing. The employer must furnish the employee with two written notices before the termination of employment can be effected: (1) the first notice apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the second notice informs the employee of the employer’s decision to dismiss him. Before the issuance of the second notice, the requirement of a hearing must be complied with by giving the worker an opportunity to be heard. It is not necessary that an actual hearing be conducted. Substantive due process, on the other hand, requires that dismissal by the employer be made under a just or authorized cause under Articles 282 to 284 of the Labor Code. In this case, there was no written notice furnished to Respondents regarding the cause of their dismissal. Cosmoship furnished a written notice (telex) to Skippers, the local manning agency, claiming that Respondents were repatriated because the latter voluntarily pre-terminated their contracts. This telex was given credibility and weight by the Labor Arbiter and NLRC in deciding that there was pre-termination of the employment contract “akin to resignation” and no illegal dismissal. However, as correctly ruled by the CA, the telex message is “a biased and self-serving document that does not satisfy the requirement of substantial evidence.” If, indeed, Respondents voluntarily pre-terminated their contracts, then Respondents should have submitted their written resignations.
b) Yes, Skippers effectively admitted non-remittance of home allotment pay for the month of December 1998 in its Position Paper. Skippers sought the repatriation expenses to be offset with the home allotment pay. However, since Respondents’ dismissal was illegal, their repatriation expenses were for the account of Skippers and could not be offset with the home allotment pay. Contrary to the claim of the Labor Arbiter and NLRC that the home allotment pay is in “the nature of extraordinary money where the burden of proof is shifted to the worker who must prove he is entitled to such monetary benefit,” Section 8 of POEA Memorandum Circular No. 55, series of 1996, states that the allotment actually constitutes at least eighty percent (80%) of the seafarer’s salary. The home allotment pay is not in the nature of an extraordinary money or benefit, but should actually be considered as salary which should be paid for services rendered. For this reason, such non-remittance of home allotment pay should be considered as unpaid salaries, and Skippers shall be liable to pay the home allotment pay of Respondents for the month of December 1998.
c) Yes, Article 2208 of the Civil Code provides for recovery of attorney’s fees and expenses of litigation states that, In the absence of stipulation, attorney’s fees and expenses of litigation, other than judicial costs, cannot be recovered, except: (2) When the defendant’s act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; and in Article 111 of the Labor Code provides for a maximum award of attorney’s fees in cases of recovery of wages which states that a. In cases of unlawful withholding of wages, the culpable party may be assessed attorney’s fees equivalent to ten percent of the amount of wages recovered. b. It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of wages, attorney’s fees which exceed ten percent of the amount of wages recovered. Since Respondents had to secure the services of the lawyer to recover their unpaid salaries and protect their interest, we agree with the CA’s imposition of attorney’s fees in the amount of ten percent (10%) of the total claims.