This case has been cited 1 times or more.
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2006-12-14 |
AUSTRIA-MARTINEZ, J. |
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| 6. If the vessel arrives at a convenient port within a period of three (3) months before the expiration of the Contract, the master/employer may repatriate the seaman from such port provided that the seaman shall be paid all his earned wages. In addition, the seaman shall also be paid his leave pay for the entire contract period plus a termination pay equivalent to one (1) month of his basic pay, provided, however, that this mode of termination may only be exercised by the master/employer if the original contact period of the seaman is at least ten (10) months; provided, further, that the conditions for this mode of termination shall not apply to dismissal for cause. The Court agrees with private respondent's contention that petitioners' arguments are misplaced. Petitioners may not use the above-quoted provision as basis for terminating private respondent's employment because it is incongruent with their primary defense that the latter's dismissal from employment was for cause. Petitioners may not claim that they ended private respondent's services because he is guilty of desertion and at the same time argue that they exercised their option to prematurely terminate his employment, even without cause, simply because they have the right to do so under their contract. These grounds for termination are inconsistent with each other such that the use of one necessarily negates resort to the other. Besides, it appears from the records that petitioners' alternative defense was pleaded merely as an afterthought because it was only in their appeal with the NLRC that they raised this defense. The only defense raised by petitioners in their Answer with Counterclaim filed with the office of the Labor Arbiter is that private respondent was dismissed from employment by reason of desertion.[23] Under the Rules of Court,[24] which is applicable in a suppletory character in labor cases before the Labor Arbiter or the NLRC pursuant to Section 3, Rule I of the New Rules of Procedure of the NLRC[25], defenses which are not raised either in a motion to dismiss or in the answer are deemed waived.[26] | |||||