De La Cruz vs NLRC : 115527 : August 18, 1997 : J. Padilla : First Div... 5 of 8 http://sc.judiciary.gov.ph/jurisprudence/1997/aug1997/115527.htm In a separate comment,[12] the Solicitor-General notes that despite the NLRCs finding that the petitioners dismissal were in disregard of due process of law and that there was no abandonment of work committed by petitioners, the NLRC held that both parties were at fault, giving both of them no recourse at law. Whatever the NLRC meant in such a cryptic statement was not explained in its decision. The Solicitor-General surmises that the alleged fault imputed to petitioners was in their act of complaining to the CSR that delayed the scheduled departure of the vessel, since the absence of some of the crew, who were then complaining to the CSR, rendered the vessel unseaworthy and unable to leave as scheduled.[13] Be that as it may, the Solicitor-General invokes the ruling laid down by this Court in Wallem Philippine Shipping v. Minister of Labor (102 SCRA 835 [1981]), Virjen Shipping and Marine Services v. NLRC (125 SCRA 577 [1983]), and Susara v. Benipayo (176 SCRA 465 [1989]), which held that complaints by seamen to the ITF or similar organizations to protect and uphold their rights are protected activities under the right to freedom of expression and cannot be a just cause for termination of employment. In its separate comment,[14] the NLRC contends otherwise. The NLRC argues that the filing of the petition for certiorari by petitioners was premature since petitioners did not file a motion for reconsideration of the NLRC decision. And even assuming arguendo that petitioners can properly file a petition for certiorari under Rule 65, the same should be dismissed because petitioners have raised only factual issues in their petition. The petition is impressed with merit. Under Art. 282 of the Labor Code, an employer may terminate an employment for any of the following causes: (a) serious misconduct or wilfull disobedience by the employee of the lawful orders of his employer or representative in connection with his work; (b) gross and habitual neglect by the employee of his duties; (c) fraud or wilfull breach by the employee of the trust reposed in him by his employer or duly authorized representative; (d) commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; (e) other causes analogous to the foregoing. In termination cases, the employer has the burden of proof to establish the existence of a valid cause in order to effect a valid dismissal. A valid dismissal, in turn, presupposes not only the validity of its cause, but also the validity of the manner by which the dismissal is done. The POEA held that petitioners sought the intervention of the ITF/CSR without prior resort to the grievance machinery provision in their seamans contract and this action constitutes a serious breach of such contract for which a penalty of dismissal is in order. However, the masters report prepared by Capt. Takemoto disclosed that petitioners expressed their intentions to resume work aboard the M/V white Castle provided the captain would sign an ITF prepared agreement condoning the incident; that is in seeking the CSR intervention shortly before the vessels departure for Tokyo, Japan. The captain reported that he finally decided to swallow their (petitioners) unreasonable demands to save the situation, which seems to imply that the fate of the vessel was at the mercy of petitioners. Upon the other hand, the statement also lends credence to petitioners claim that the captain assured them that the incident would have no adverse effect on their employment. Unknown to petitioners, the captain reneged on their agreement and requested the shipowners that petitioners be replaced upon the vessels arrival in 1/24/2016 11:10 PM