II. Likewise, the Court of Appeals erred in not upholding petitioners’
right to pre-terminate private respondent’s employment.
x x x x
III. The private respondent is not entitled to other money claims,
particularly as to the award of attorney’s fees.[9]
As to their first assigned error, petitioners contend that the CA erred in
affirming the findings of the NLRC that Rusel’s act of jumping ship does not
establish any intent on his part to abandon his job and never return. Petitioners
argue that Rusel’s very act of jumping from the vessel and swimming to shore is
evidence of highest degree that he has no intention of returning to his
job. Petitioners further contend that if Rusel was indeed suffering from unbearable
and unmitigated pain, it is unlikely that he is able to swim two (2) nautical miles,
which is the distance between their ship and the shore, considering that he needed
to use his limbs in swimming. Petitioners further assert that it is error on the part of
the CA to disregard the entries contained in the logbook and in the Marine Note
Protest evidencing Rusels’ offense of desertion because while these pieces of
evidence were belatedly presented, the settled rule is that additional evidence may
be admitted on appeal in labor cases. Petitioners also contend that Rusel’s act of
desertion is a grave and serious offense and considering the nature and situs of
employment as well as the nationality of the employer, the twin requirements of
notice and hearing before an employee can be validly terminated may be dispensed
with.
As to their second assigned error, petitioners contend that assuming, for the
sake of argument, that Rusel is not guilty of desertion, they invoked the alternative
defense that the termination of his employment was validly made pursuant to
petitioners’ right to exercise their prerogative to pre-terminate such employment in
accordance with Section 19(C) of the Standard Terms and Conditions Governing
the Employment of Filipino Seafarers On-Board Ocean-Going Vessels, which
provision was incorporated in Rusel’s Contract of Employment with
petitioners. Petitioners assert that despite the fact that this issue was raised before
the CA, the appellate court failed to resolve the same.
Anent the last assigned error, petitioners argue that it is error on the part of
the CA to affirm the award of living allowance, overtime pay, vacation pay and