Illegally terminated

A LAW EACH DAY (KEEPS TROUBLE AWAY) - Jose C. Sison - The Philippine Star

Under RA 8042 or the “Migrant Workers and Overseas Filipinos Act” which was passed on July 15, 1995, an overseas worker who has been terminated from employment without just or valid cause shall be entitled, among others, to his salaries for the unexpired portion of the employment contract or for three months for every year of the unexpired term, whichever is less.

Does this mean that if the three months’ salary is the lesser amount, the overseas worker will get only three months’ salary even if the unexpired portion of his contract is more than three months? This is answered in this case of Jerry.

Jerry was hired as Chief Cook Steward on a Greek vessel for a contract period of 10 months with a monthly salary of US$600. Once on board the vessel, he was assigned not only as Chief Cook Steward but also as assistant cook and messman, in addition to performing various inventory and requisition jobs.

Because of his additional assignments he began to feel sick just a little over a month on the job, constraining him to request for medical attention. The master of the vessel initially refused his request but subsequently relented and had him examined after the ship’s arrival at port in Europe.

The examining physician did not apprise Jerry about the diagnosis. Neither did he issue a medical certificate. Jerry was told that he would just forward the results to his superior.

Upon his return to the vessel, he was ordered to prepare for immediate repatriation the following day as he was said to be suffering from a disease of unknown origin. So less than two months on the job, Jerry was repatriated to the Philippines. He was handed his Seaman’s Service Record Book showing the cause of his discharge as “mutual consent.” It was based in the vessel’s deck log wherein an entry was unilaterally made by the master of the vessel purporting to show that Jerry himself asked for his repatriation. Jerry denied this and sued the company for illegal dismissal.

And true enough, Jerry’s dismissal before the expiration of his contract was found to be in violation of the Standard Employment Contract. The shipping company was ordered to pay the unexpired portion of the contract or $5,100. The company questioned such order of payment, arguing that under RA 8042, they should pay only three months’ salary of Jerry or $1,800 since this is the lesser amount. Is the company correct?

No. The issue of whether the overseas worker is entitled to his salaries for the unexpired portion of his employment contract or for three months’ salary, whichever is less, comes into play only when the employment contract concerned has a term of at least one year or more. This is evident form the words “for every year of the unexpired term” which follows the words “salaries for three months.”

In this case, Jerry’s contract period is less than one year. So he is entitled not only to three months’ salary but for the unexpired portion of his contract. To follow the company’s thinking that Jerry is entitled to three months’ salary only simply because it is the lesser amount is to completely disregard and overlook some words used in the statute while giving effect to some.

This is contrary to the well-established rule in legal hermeneutics that, in interpreting a statute, care should be taken that every part or word thereof be given effect, since the lawmaking body is presumed to know the meaning of the words employed in the statute and to have used them advisedly.

(Marsaman Manning Agency Inc. et. al. vs. NLRC et. al. GR. No. 127195 Aug. 25, 1999.)

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