1. Resignation vs. Constructive Dismissal

RESIGNATION VERSUS CONSTRUCTIVE DISMISSAL

Resignation

Resignation is the voluntary act of an employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service, such that he has no other choice but to disassociate himself from his employment. (Cervantes v. PAL Maritime Corp., G.R. No. 175209, 2013)

To constitute a resignation, it must be unconditional and with the intent to operate as such. There must be an intention to relinquish a portion of the term of office accompanied by an act of relinquishment. (Azcor Manufacturing Inc. v. NLRC, G.R. No. 117963, 1999)

Resignation is inconsistent with the filing of a complaint for illegal dismissal. (Blue Angel Manpower and Security Services Inc. v Court of Appeals, G.R. No. 161196 2008)

The rule requiring an employee to stay or complete the 30-day period prior to the effectivity of his resignation becomes discretionary on the part of management as an employee who intends to resign may be allowed a shorter period before his resignation becomes effective. (Hechanova Bugay Vilchez Lawyers v. Matorre, G.R. No. 198261 2013)

Stipulations providing that either party may terminate a contract even without cause are legitimate if exercised in good faith. Thus, while either party has the right to terminate the contract at will, it cannot act purposely to injure the other. The monetary award provided in Section 10 of R.A. 8042 applies only to an illegally dismissed overseas contract worker or a worker dismissed from overseas employment without just, valid or authorized cause as defined by law or contract. It finds no application to cases in which the OFW was not illegally dismissed. (GBMLT Manpower Services vs Malinao, G.R. No. 189262, 2015)

Constructive Dismissal

• No formal dismissal
• The employee is placed in a situation by the employer such that his continued employment has become UNBEARABLE - Forced resignation.

Constructive dismissal exists when an act of clear discrimination, insensibility or disdain on the part of the employer has become so unbearable as to leave an employee with no choice but to forego continued employment.

Constructive dismissal occurs when:

• Continued employment is rendered impossible or unreasonable, resulting in an involuntary resignation
• Demotion in rank or diminution in pay
• Forced resignation to make it appear that no termination by the employer was done (Leonardo v. NLRC, G.R. No. 125303, June 16, 2000)

Test of Constructive dismissal: whether or not a reasonable person in the employee’s position would feel the need to give up his position

Note: Abandonment is incompatible with constructive dismissal.

It is the inherent prerogative of an employer to transfer and reassign its employees to meet the requirements of its business. Be that as it may, the prerogative of the management to transfer its employees must be exercised without grave abuse of discretion. The exercise of the prerogative should not defeat an employee's right to security of tenure. The employer’s privilege to transfer its employees to different workstations cannot be used as a subterfuge to rid itself of an undesirable worker. (Veterans Security Agency v. Vargas, G.R. No. 159293, 2005)

Instances of Constructive Dismissal

• There may be constructive dismissal if an act of an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment (Hyatt Taxi Services v. Catinoy, G.R. No. 143204, 2001)
• Continued employment is rendered impossible or unreasonable, resulting in an involuntary resignation;
• Demotion in rank or diminution in pay;
• Forced resignation to make it appear that no termination by the employer was done; (Leonardo v. NLRC, G.R. No. 125303, 2000)
• After 30 days of preventive suspension, the employer must reinstate the employee to his former or a substantially equivalent position, or may extend the suspension while paying the employee’s wages and other benefits during the extension. An unpaid extension may amount to constructive dismissal (Hyatt Taxi Services v. Catinoy, supra);
• Floating status of a security guard if it lasts for more than 6 months (Emeritus Security and Maintenance Systems v. Dailig, G.R. No. 204761, 2014)

Note: It is manifestly unfair and unacceptable to declare the mere lapse of the six-month period of floating status as a case of constructive dismissal without looking into the peculiar circumstances that resulted in the security guard’s failure to assume another post (Exocet Security and Allies Services Corp v. Serrano, G.R. no. 198538, 2014)

Jurisprudence: Resignation

Forced resignation must be substantiated by more than mere threats and allegations. (Mandapat v. AddForce Personnel Services, Inc., G.R. No. 180285, 2010)

A threat to sue the employee will not amount to forced resignation, as this is a legal act which will be decided by a competent authority. (Callanta v. NLRC, G.R. No. 105083, 1993)

A choice between investigation and resignation is not illegal. (Belaunzaran v. NLRC, G.R. 120038, 1996)

An employee who tenders her voluntary resignation, accepts separation pay and benefits cannot claim constructive dismissal. (Concrete Aggregates v. NLRC, G.R. No. 82458, 1989)

An employee may be considered constructively dismissed and at the same time legally dismissed, as when a complaint for sexual abuse is proven in the NLRC. This will amount to a termination with just cause but without due process (see the Agabon doctrine above). (Formantes v. Duncan Pharmaceuticals Inc., G.R. No. 170661, 2009)

ABANDONMENT

Voluntary Resignation or Termination of Employment

Acceptance of a mass voluntary resignation is not ULP. In a Philippine Airlines case, the courts said that the pilots’ protest retirement/resignation was not a concerted activity which was protected by law. They did not assume the status of strikers. They cannot, therefore, validly claim that the company committed unfair labor practice. When the pilots voluntarily terminated their employment relationship with the company, they cannot claim that they were dismissed. (Enriquez v. Zamora, G.R. No. 51382, 1986).