Legal advise for seafarer suing employer for failure to deploy because of medical condition

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Sir/Madam, I would like to ask your legal advise against my employer. I am a seafarer scheduled to join my vessel last February. Unfortunately it was cancelled due to my medical certificate. My crewing agency told me that I am unfit for deployment.

I was surprised because of this development and so I went back to the clinic to inquire, then I learned from the doctor that my crewing agency did not approve the recommendation of the doctor that I will continue my maintenance medication aboard the vessel.

Last year, I was diagnosed to have hypertension and diabetes and my medical certificate was marked "Fit for Sea service" upon presenting to the doctor the medicines I will bring with me aboard to last until my contract finished. The same procedure would have been in order but this time my crewing agency disapproved the doctor's recommendation which prompts the clinic to mark my medical clearance "unfit".

I have no problem performing my duties and responsibilities while on board the vessel, in fact I was recommended for promotion for a higher position. I went back to my crewing agency to plead for their reconsideration but the office was firmed in their decision without explaining to me the reason why they disapproved the doctor's recommendation. I work with this company for 8 long years and was devastated with their decision to dump me just like this. It was cruel and harsh. My company blatantly denied me my right for employment and earn a decent living to support my family.

My contract for my next assignment was already processed to POEA and the OEC will be expiring today, 24 March 2014. With this regard, I would like to pursue this case. Can I sue my crewing agency of failure to deploy? Can I ask them to honor my contract and pay me my potential earnings equivalent to the whole 3 months contract which was already processed in POEA? Thank you Sir/Madam for any legal advise and answers to my queries.


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Adelaimar C Arias-Jose
is a Legal expert in the Philippines
Let me see if I got the facts right: you are a seafarer and you have been working with the same crewing agency for 8 years. Last year, you were diagnosed with hypertension and diabetes and yet, you were classified as 'fit to work' so long as you took maintenance medication. This year, you already have a contract of employment and you were supposed to deploy on board a ship but the crewing agency refused to honor the doctor's recommendation that you were fit to work.

Your question is, whether you can sue the crewing agency for failing to deploy you?

My answer is: yes, you can sue for illegal dismissal because you have already been hired (as you said that you have already signed a contract of employment and your contract has already been processed by the POEA.

A contract of employment is binding once it has already been signed by the shipping company, the crewing agency and the seafarer. Of course, I have not seen your contract of employment. There may be a caveat there that the contract of employment will be considered binding only if you passed the physical examination. If there is no such caveat, then you are considered to have been hired.

You must also consider if hypertension and diabetes are conditions which prevent a seafarer from being hired -- is it a disability under your contract? Normally, hypertension and diabetes, when controlled by medication, cannot be considered a disability that prevents you from being considered as 'fit for work'.

If you find that in your previous contracts, hypertension and diabetes are not conditions that render you 'unfit for work' then the crewing agency should not have disregarded the doctor's recommendation.

I am assuming that the doctor who examined you is a doctor affiliated with the crewing agency. It was then their doctor who found you 'fit for work' -- and not your own personal doctor?

What happened is that by disregarding their own doctor's recommendation that you were fit for work, the crewing agency was actually terminating the binding contract of employment without just cause. This is a case of illegal dismissal. The crewing agency cannot claim that you are unfit for work if their doctor certified that you were fit for work. The crewing agency cannot claim that diabetes and hypertension are debilitating conditions that render you unfit for work if the previous year, they deployed you and allowed you to work as a seafarer even when they knew that you had those conditions. The act of the crewing agency was arbitrary and whimsical -- it was not based upon a fact and it was a breach of a valid contract of employment.

Under the law, when an OFW is dismissed without just cause, he is entitled to separation pay amounting to one month's salary for every year of the contract. Thus, if the contract is for two years, then you may get damages equivalent to two months' salary. If your contract is less than one year (I am assuming that a seafarer's contract is normally for 6-8 months only) then you will receive one month's salary.

In giving you this advice I relied upon the facts you described in your post and I have not seen any of the documents in your possession such as the contract of employment, medical certificate, any correspondences, etc. My advice is based on general principles of law and not based on an evaluation of any evidence you may have in your favor.

It will be better if you consulted with a lawyer who specializes in illegal dismissal of OFWs as this is a specialized branch of labor law. If you have documents in your possession, you may consult a lawyer and show him your documents and ask him to evaluate whether you have a cause of action against the crewing agency.

Good luck to you.
Antonio Alovera
is a seafarer in the Philippines
Good morning Atty. Bimbi,
Thank you so much for your legal assistance. Now I know how to act accordingly.
More power to you,
Synonymous Anonymous
is in the Philippines
Paano po kung nakapirma na ako ng kontrata at pagdating ko po sa barko ay yung trabaho ko ay hindi akma sa pinirmahan ko na kontrata at hinling ko po na umuwi na lang may habol po kaya ako? Salamat and more power!

About the author

Adelaimar C Arias-Jose

I am a graduate of the UP College of Law. Member of the Integrated Bar of the Philippines since 1995. I am currently involved in private practice in criminal, civil and labor law.
Profession: Lawyer
Adelaimar C. Arias-Jose
Office Address: #34 St. Michael Street
Philippines , Manila , Makati
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