6/8/2020 E-Library - Information At Your Fingertips: Printer Friendly In this petition, we are called upon to resolve two basic issues: The first concerns what percentage to use in computing the incentive bonus which petitioner is entitled to. In the memorandum entitled Employment Conditions for Filipino Seafarers Serving Onboard Vessels of Bergesen D.Y. ASA (Employment Conditions Memorandum), Radio Officers are entitled to re-employment bonus equivalent to a certain percentage of their basic wage per month of actual service. If the employee served onboard a bulk carrier, he is entitled to 8% of his basic wage per month of actual service. Alternatively, if service was done onboard a gas carrier tanker, the employee is entitled to 10% of his basic wage per month of actual service. The NLRC and the Court of Appeals both agree that petitioner failed to adduce concrete proof to show that M/V HEROS is a Gas/LPG Tanker and not a bulk carrier. Hence, the Court of Appeals upheld the use of 8% by the NLRC as multiplier to compute the incentive bonus. Respondent company argues that petitioner failed to allege the nature of M/V HEROS at the earliest opportunity, belatedly alleging this information in the Motion for Reconsideration with the NLRC. Petitioner insists that M/V HEROS is a Gas/LPG Tanker which entitles him to 10% of his basic wage as incentive bonus; and that the Court of Appeals erred in ruling that it was petitioner’s burden to prove the classification of M/V HEROS. We rule in petitioner’s favor. The registration papers, which contain the vessel classification of M/V HEROS, are the conclusive evidence that petitioner needs to prove his allegation. However, these are in the custody of respondent company or its mother company, Bergesen D.Y. ASA. Interestingly, respondent company never presented the registration papers in evidence. We find that respondent company’s failure to controvert the allegation, when it had the opportunity and resources to do so, works in favor of petitioner. Time and again we have held that should doubts exist between the evidence presented by the employer and the employee, the scales of justice must be tilted in favor of the latter.[10] Moreover, the law creates the presumption that evidence willfully suppressed would be adverse if produced.[11] Consequently, the amount of incentive bonus termed as re-employment bonus which petitioner is entitled to should be computed as follows: Salary per month = US$929.00 No. of months of actual service = 16 months Rate = 10% of basic wage US$929.00/month x 16 months x 10% = US$1,486.40 The second and third grounds raised in this petition are related, based on petitioner’s allegation that he should be considered a regular employee of respondent company, having been employed onboard the latter’s different vessels for the span of 10 years. Hence, petitioner claims that he is entitled to backwages or at the very least separation elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/45621 5/8