6/7/2020 E-Library - Information At Your Fingertips: Printer Friendly the crew members.[22] Thus, for failure to observe the requirement of due process, petitioners were held liable to indemnify respondent nominal damages.[23] Both parties filed their respective motions for partial reconsideration, but both were denied by the NLRC in a Resolution dated November 21, 2011.[24] Unsatisfied, respondent elevated the matter to the CA via petition for certiorari.[25] The CA Ruling In its Decision[26] dated January 31, 2013, the CA found that the NLRC gravely abused its discretion in holding that there was just cause for respondent's dismissal from employment as the same is not supported by substantial evidence.[27] According to the CA, the unnotarized Crew Behavior Report, which was the sole basis of the LA and NLRC in holding that respondent was dismissed for just cause cannot be given credence in the absence of any other corroborative evidence.[28] The CA further held that said report, although signed by four (4) other crew members of the vessel, cannot be considered credible because the charges against respondent were based on acts witnessed only by Captain Buton.[29] The CA also noted that the report cited only one case of incompetence and negligence of respondent;[30] but the rules are explicit that negligence must not only be gross but also habitual to warrant the employee's separation from employment.[31] The CA further held that petitioners failed to show that the failure of respondent to observe safety precautions during the mooring operations was willful and deliberate and that respondent repeatedly committed mistakes or failed to perform his duties.[32] As regards respondent's alleged intoxication, the CA found the same wanting of proof and insufficient to warrant respondent's dismissal.[33] The CA noted that the Crew Behavior Report indicated that respondent was caught drinking after his duty; Section 33(6), however, requires drunkenness to be committed while on duty to warrant the dismissal of an employee.[34] Lastly, the CA ruled that the award of attorney's fees of ten percent (10%) of the total award is justified under Article 111 of the Labor Code.[35] However, the CA found no basis for respondent's claim for moral and exemplary damages as there is absence of clear and convincing proof that his dismissal was attended by fraud or bad faith.[36] Thus the dispositive portion of the CA Decision reads: WHEREFORE, the petition is granted and public respondent NLRC's Decision dated September 15, 2011 and Resolution dated November 21, 2011 are set aside. Petitioner's dismissal from employment is hereby declared illegal, and private respondents are ordered to pay petitioner the unexpired portion of his employment contract and attorney's fees of 10% of said award. SO ORDERED.[37] elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/63428 3/11