Involuntary resignations
When does involuntary resignation occur?
Sometimes an employee will complain of illegal dismissal while the employer argues that the employee was not dismissed at all, but actually resigned voluntarily.
The employee says that he was put in such an unfair, untenable position from which he was forced to resign so that, under the law, he was actually dismissed. The employer, on the other hand, denies the employee’s claim.
How does the employer prove that there was no illegal dismissal?
When is a resignation not a resignation?
When is an action a valid exercise of management prerogatives?
Constructive dismissal
Constructive dismissal is an involuntary resignation by the employee due to the harsh, hostile, and unfavorable conditions set by the employer and which arises when a clear discrimination, insensibility, or disdain by an employer exists and has become unbearable to the employee.
Was there constructive dismissal?
Constructive dismissal exists where there is a cessation of work, because “continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank or a diminution in pay” and other benefits.[1]
This means that there is constructive dismissal when an employee, without either due process or valid cause, is being transferred to a lower position from that which he currently holds.
In this situation, the employer must be able to prove that there was no constructive dismissal.
But the employer has a resignation letter signed by the employee.
Is a resignation letter by itself proof enough that an employee voluntarily resigned?
A resignation letter is not proof enough that the employee resigned.
Not necessarily. The employer should not rely on the mere fact of a resignation letter. The Supreme Court has ruled that a resignation letter alone does not suffice in these circumstances.
The fact of filing a resignation letter alone does not shift the burden of proving that the employee’s dismissal was for a just and valid cause from the employer to the employee. In Mora v. Avesco, we ruled that should the employer interpose the defense of resignation, it is still incumbent upon the employer to prove that the employee voluntarily resigned.[2]
Should an employer interpose the defense of resignation in an illegal dismissal case, it is incumbent on the employer to prove not only the overt act of resignation but also the employee’s willing intent to resign, that is, that the act was voluntary.[3]
Are words of gratitude in the employee’s resignation letter definite proof that he resigned voluntarily?
Words of thanks in a resignation letter are not enough to prove voluntary resignation.
Let’s say that the resignation letter signed by the employee also thanks the employer for the opportunity of having worked at the company. The resignation letter reads:
Dear Sir,
It is with much reluctance and regret that I must ask to be released from my position of Sales Engineer at Avesco Marketing. For the past seven years, I cannot forget how much this company has meant to me.
With this regard, I’m tendering my resignation effective April 25, 2003. Please extend to Mr. Jimmy Tang my appreciation of his kindness during the time I served.
Is this proof positive that he resigned voluntarily?
Again, not necessarily. The totality of the circumstances will be taken into account.
A polite resignation letter is to be expected due to possible professional repercussions.
Polite language in a resignation letter is to be expected in view of its possible professional repercussions in the future. But that an employee was being civil and professional in a resignation letter does not preclude that he was not coerced in the circumstances.
The Supreme Court has rejected mere reliance on the language of a resignation letter in a situation like this:
… While resignation letters containing words of gratitude may indicate that the employees were not coerced into resignation, this fact alone is not conclusive proof that they intelligently, freely and voluntarily resigned. To rule that resignation letters couched in terms of gratitude are, by themselves, conclusive proof that the employees intended to relinquish their posts would open the floodgates to possible abuse. In order to withstand the test of validity, resignations must be made voluntarily and with the intention of relinquishing the office, coupled with an act of relinquishment. Therefore, in order to determine whether the employees truly intended to resign from their respective posts, we cannot merely rely on the tenor of the resignation letters but must take into consideration the totality of circumstances in each particular case.[4]
What does jurisprudence say?
Constructive dismissal includes situations where the employee submitted a courtesy resignation letter because it was demanded of him even when he did not wish to leave his post. These situations are akin to that in ICT Marketing Services, Inc. vs. Sales where the Supreme Court ruled that:
[P]etitioner immediately filed a complaint for illegal dismissal. Resignation, it has been held, is inconsistent with the filing of a complaint. Thus, private respondent corporation’s mere assertion that petitioner voluntarily resigned without offering convincing evidence to prove it, is not sufficient to discharge the burden of proving such an assertion. It is worthy to note that the fact of filing a resignation letter alone does not shift the burden of proof and it is still incumbent upon the employer to prove that the employee voluntarily resigned.
Therefore, we believe and so hold that petitioner was constructively dismissed from employment. Constructive dismissal exists when the resignation on the part of the employee was involuntary due to the harsh, hostile and unfavorable conditions set by the employer. The test for constructive dismissal is whether a reasonable person in the employee’s position would feel compelled to give up his employment under the prevailing circumstances. With the decision of the private respondent corporation to transfer and to thereafter placed [sic] her on floating status, petitioner felt that she was being discriminated and this perception compelled her to resign. It is clear from her resignation letter that the petitioner felt oppressed by the situation created by the private respondent corporation, and this forced her to surrender her position.[5]
The text of the resignation may offer clues to show the circumstances of the resignation.
The text of the resignation letter can, in fact, offer other clues which show that the resignation was effectively imposed by the employer on the employee.
For example, if the resignation letter itself alludes to circumstances supportive of the claim of constructive dismissal, this can be held against the employer.
Due process and management prerogatives
This leads us to ask certain questions.
For example, was the employee afforded the right to address the issues which are the cause for the demotion?
Due process should be followed.
Due process should be followed. If, without due process, an employee is removed from his position and offered only a transfer to a lower ranked position, this does indicate constructive dismissal.[6]
Arbitrariness or unfairness by the employer can show that there was not resignation, but constructive dismissal. There is no abandonment of employment nor a resignation in the real sense, but instead constructive dismissal, defined as an involuntary resignation resorted to when — under these circumstances — continued employment is rendered impossible, unreasonable or unlikely.[7]
Working conditions or structures may be such that an employee may have no recourse other than resignation.
There is constructive dismissal if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it would foreclose any choice by him except to forego his continued employment. It exists where there is cessation of work because continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank and a diminution in pay.[8]
The law respects that there are managerial prerogatives to transfer an employee from one office to another within the business establishment, but these prerogatives are subject to clear limitations provided by law. Such prerogatives do not allow a demotion in rank or diminution of salary, benefits and other privileges, and the action must not be motivated by discrimination, made in bad faith, or effected as a form of punishment or demotion without sufficient cause.
The employer has to show proof that a transfer is justified.
The employer bears the burden of showing that the transfer is not unreasonable, inconvenient or prejudicial to the employee; and does not involve a demotion in rank or a diminution of his salaries, privileges and other benefits. Should the employer fail to overcome this burden of proof, the employee’s transfer shall be tantamount to constructive dismissal.
Constructive dismissal is defined as quitting because continued employment is rendered impossible, unreasonable or unlikely; when there is a demotion in rank or a diminution of pay. Likewise, constructive dismissal exists when an act of clear discrimination, insensibility or disdain by an employer becomes unbearable to the employee, leaving him with no option but to forego his continued employment.
A transfer should be supported by valid reasons.
A transfer is defined as a movement from one position to another which is of equivalent rank, level or salary, without break in service. Promotion, on the other hand, is the advancement from one position to another with an increase in duties and responsibilities as authorized by law, and usually accompanied by an increase in salary. Conversely, demotion involves a situation in which an employee is relegated to a subordinate or less important position constituting a reduction to a lower grade or rank, with a corresponding decrease in duties and responsibilities, and usually accompanied by a decrease in salary.[9]
Removing an employee from his position should be supported by valid reasons and follow due process or else it will be questioned for violating labor law. Documentation of these reasons and following due process are important in order for an employer to overcome claims of constructive dismissal.
To avoid these charges, it is important that the employer have clear disciplinary processes in place. It is equally important that these processes be followed.
References
[1] SME Bank, Inc. vs. De Guzman, G.R. No. 184517, October 8, 2013.
[2] Peñaflor vs. Outdoor Clothing Manufacturing Corporation, G.R. No. 177114 , April 13, 2010 citing Mora vs. Avesco, G.R. No. 177414, November 14, 2008, 571 SCRA 226.
[3] Mora vs. Avesco, supra.
[4] SME Bank, Inc. vs. De Guzman, G.R. No. 184517, October 8, 2013.
[5] ICT Marketing Services, Inc. vs. Sales, G.R. 202090, September 9, 2015.
[6] McMer Corporation, Inc. vs. NLRC, G.R. No. 193421, June 4, 2014.
[7] Francisco vs. NLRC, G.R. No. 170087, August 31, 2006 citing Globe Telecom, Inc. v. Florendo-Flores, 438 Phil. 756 (2002).
[8] Dreamland Hotel Resort vs. Johnson, G.R. No. 191455, March 12, 2014.
[9] Norkis Trading Co. Inc. vs. Gnilo, G.R. No. 159730, February 11, 2008.
Hi, a quick question, i was deducted from my salary due to the complainant won the case for illegal dismissal. However, i was hired in the Company the case was already filed by the complainant at the NLRC. In short, my participation when our retainer called me about the decision of the Labor Arbiter (LA) in favour the complainant. The reason why they include me in the charges due to our legal retainer failed to submit on time the position paper. She just only file a motion for extension/submit position paper. I just inform by the accounting officer i have a deduction Php 1,500.00 per month, i did not sign any documents nor i gave consent.
Thank you 🙂
Salary deductions are only valid if authorized by the law, if the employee voluntarily agrees with the deduction, and ordered by a competent authority. In your case, you did not sign any consent, and there is no court order against you. You were deducted simple because of the complainant’s won case where you weren’t hire yet during the case was filed. You can raise this concern with the DOLE for illegal deduction if they refuse to provide reasonable and lawful explanation why such deduction is executed.
good day my boss constantly telling me when i will resign from the company and sometimes challenge me when to resign, is this a form of constructive dismissal? thank you.
It can be treated as constructive dismissal this can be seen as harassment on your part as it creates a hostile working environment where you feel you have no choice but to leave.
good morning sir,
what if the head of office reassign an employee to another unit (island based office) because he/she was against to the corrupt doings of the office, can it be considered a constractive dismissal? can the employee appeal to his/her reassignment to other unit? what will be the punishment to the head of office if the reassignment is proven to be a constractive dismissal?
thanks!
under the law, employers may transfer or reassign an employee, provided it is for legitimate business reason and not discriminatory. In this case, this is a form banishment and may be considered discriminatory and potentially constructive dismissal. The employee may file a complaints against the employer and may face administrative sanctions. But if the employee proves that reassignment is done only in good faith and without prejudice.
Is it valid for a municipal mayor to order administrative aide III or Clerk I and Administrative Assistant I to be abolished from their post-office of assignment to clean and sweep the shorline and streets for the reason that they did not vote her during the election? From the day she assumed her position, we had already received a total of three (3) orders/memo for work assignment. What could possibly be our action to take on this matter? What can you advice to us? Thanks in advance.
This is a form of personal grudge against the government employee. This raises serious legal and administrative concern. If this sounds injustice, you may seek legal assistance from the Office of the Ombudsman, they handle cases and complaints against public officials for abuse of authority.
What if an employee verbally advised that she will resign from her post because she is due to go abroad. However, with the COVID situation, her plans were delayed indefinitely. At this point, she still has not submitted her resignation letter but her boss asks her to submit one since they have already hired a new person to take her position. Are these grounds for constructive dismissal?
A verbal statement of intent to resign is not binding unless a formal resignation letter is submitted. Since the employee, only verbally expressed intent to resign and did not submit due to COVID concerns. It may not be considered as constructive dismissal. But if the employer is pressuring her to submit, it may be considered.
Hi,
We are currently working for company A, which in turn consults for company B. The contract between A and B is over, and B wants to hire us.
Our company A is telling us to resign ASAP so company B can begin the process of hiring us.
The problem is many of us have years of tenure in this company and submitting a resignation would prevent us from receiving our severance pay, which is substantial.
Does Company A owe us severance pay in this case? I feel like Company B wanting to hire us is a separate matter and Company A is still, in effect, firing us, so they should pay us the severance.
If you resign voluntarily, you generally forfeit severance pay except other mandatory pay. If the employer ends your employment because the consulting contract with Company B has expired, this is not resignation, it’s termination. In such cases, employees may be entitled to separation pay.
Sirs,
I sent a comment to understand a friend’s work dilemma so that I can probably refer her to you or a lawyer.
Today, I checked if there was a feedback but I am not seeing the comment anymore.
Please advise. Thank you.
You may raise your concern directly via email, as we respond more quickly there.
Sir,
A colleague, who is a manager in her company, approached me and expressed her sentiments that every time her boss, a female director, is stressed, her boss yells and rants.
At one point, she expressed openly her frustrations because she felt lost on what to do and her directions; immediately after that, she was transferred to another boss, a male boss, on that same day. According to her, she’s happy and content with her new boss specially on how this boss handles people.
After a month or so, her old boss talked to her to start reporting back her again – disclosing that her old boss already talked to the management about her transfer back.
For about 1.5 months, everything sounds alright because my colleague haven’t called me – I assumed things are better.
A couple of days back, she called me that her old boss started ranting and yelling again after being okay for a while. This time it sounded worse. She was crying because her old lady boss is not just back to yelling and ranting again – there were harsh comments included. She narrated that on several occasions, she was asked to help another team finish their tasks – she spent late night shifts just to help and finish on time. According to her despite her efforts to help, when she asked for Work From Home (WFH) because she is not feeling well and showing signs of possible NCOVID19 symptoms – she was asked to send an email to the CEO about her requests despite. One thing that makes feel unfairly treated is that when another another office mate went on WFH, it was approved immediately by her lady boss and no email was required to be sent to the CEO.
Despite her feeling of being unfairly treated, she followed the instructions to send an email requesting to do WFH and was approved by the CEO. And she did WFH for 2 days.
Her old lady boss knowing about the email called her and shouted and yelled at her, telling her that she was not sick at all – implying that she was just faking it.
At a later week, her old lady boss her called her that she was not helping the team at all and all the help she did for that another team was actually done by that another office mate who was approved to go on WFH. Later in her story, she mentioned that her old lady boss asked her to resign instead or her WFH will not be disapproved and she go on leave without pay.
This is where she completely lost all her emotions, she said. She asked for my advice whether she should just resign but she badly need that job to support her family and kids. I advised her to pray and continue to work for her family and try ignoring her lady boss yelling and ranting.
Sir, if she resigns will that be constructive dismissal? What should be her course of actions? What hard proof does she needs?
Above all these, I tried to comfort her that specially in these times, it’s very difficult to lose one’s job and she should continue to work and when this pandemic is over, she could look for opportunities where the work environment is healthy.
Please advise sir. I just came across this sight when it just hit me how to help her further.
very helpful and informative.your generous intention to help us in distress situation can even save lives due to anxiety and depression or other health complications tjat might arise. i send also an email.hope it merits your kind attention.
more power
We are pleased to hear this good comment of yours.
Nagfile po kami ng grave misconduct and ellegal dismissal against detachment commander, on process na po xa, then ng mgreport po ako sa office i was forced to signed the suspention ( aug 1-aug 10) effectivity date & show cause. Aug. 10 po ako ngreport so tps n ng arw n yun ung sespention ko, BUT all i know po is on floating status na ako kc my relieve of order na ako ng aug. 1. Pinapapasok na po nila ako habang on going ang imbistigation. Sadly ung tg complain ko nkaduty pa kc good performance nmn dw sabi ng manager sa workplace ko hnd tama po ba yun? Ayaw ko po muna pumasok kc nttkot ako na paggising ko ang 25 yrs ko s company ay mawala ng gnun ganun nlng feeling ko kc operation manager n ang nkakalaban ko in favor sa comander ko. Any legal advice po
Dapat may malinaw na Notice to Explain (NTE) at Notice of Suspension na pirmado ng authorized officer. Kung pinapapirma ka ng suspension na tapos na ang effectivity date, irregular iyon. Sa security agencies, puwedeng i-relieve ang guard at ilagay sa floating status kung walang assignment. Pero kung pinapapasok ka habang ongoing ang imbestigasyon, dapat malinaw ang status mo. Bago ka ma-dismiss, kailangan ng dalawang notice rule — NTE at Notice of Decision. Hindi puwedeng basta-basta pilitin kang pumirma o pumasok nang walang malinaw na proseso.
Sir, I was involved in a fight during the company event and my colleague hit me in the forehead. I was in shocked in a while and decided to pin her down. I file an internal complaint re: the matter and because of this I was given a notice of termination or voluntary resignation. So I choose voluntary resignation to keep my name clean and without a record. Can this be a ground for me to file a constructive dismissal?
You may argue that the voluntary resignation was not entirely vonlutary, it was made to avoid harsher outcome and you were pressured to resign under the threat of termination.
Very informative and helpful. Thank you.
Good day Sir.
We have a supervisor who underwent to a Performance Improvement Plan, due to poor performance. This PIP is for one month, and a weekly evaluation was done and discussed with the supervisor.
fist two weeks shows no improvement, but the 3rd and 4th week show a minimal improvement. It was suggested that the PIP be extended for another month to give the employee an opportunity to improve. However, before the result of the PIP is discussed to the employee, including the suggestion to extend the PIP, the employee submitted his resignation. When the PIP result and suggested extension was discussed to the employee, he declined it and insisted on resigning.
Management then accepted his resignation.
after a week, we received a notice from NLRC for SENA, because the employee filed a complaint of constructive dismissal.
Based on the above situation, i dont think that the employee was constructively dismissed. is my assumption of the situation correct?
Thank you for your reply.
Note that this is based on the facts given. This can change if more information is presented.
Yes, this does not appear to be constructive dismissal.
Good day sir!
First week of October I received show cause order from my district manager , the letter has no signature from those who send it, yet I replied because I might be waiving my rights if I didn’t have to. The allegations were baseless and my district manager informed me that when the hearing or investigation starts I am no longer allowed to resign and might be terminated. Supposedly the hearing will be on the 3rd week of November but it was cancelled, the union follow up the hearing yet they delayed it. After 51 days I received again a letter from another person inviting me for an inquiry about case that was brought out to them. The letter is general, they didn’t mrention the agenda on the email. When I appear they asked about the allegation and I was surprised because I didn’t received any notice to explain on the new allegation.
Is their action tantamount to harassment and can i file constructive dismissal?
Yes, you can file complaint and use the circumstances such as denial of due process, and constructive dismissal.
Sir,
What if the employer or a higher rank authority in the company yells and insults an employee often rendering the conditions within the company unbearable that the employee opted to resign than stay and get yelled at, bullied and harassed constantly? Can that be considered constructive dismissal? Thank you.
M.Pineda
It does depend on the facts of your case, but it can be, if sufficiently proven with evidence.
The Supreme Court has said:
“In a plethora of cases, we have defined constructive dismissal as a cessation of work because continued employment is rendered impossible, unreasonable or unlikely; when there is a demotion in rank or diminution in pay or both; or when a clear discrimination, insensibility, or disdain by an employer becomes unbearable to the employee.
The test of constructive dismissal is whether a reasonable person in the employee’s position would have felt compelled to give up his position under the circumstances. It is an act amounting to dismissal but made to appear as if it were not. Constructive dismissal is, therefore, a dismissal in disguise. As such, the law recognizes and resolves this situation in favor of employees in order to protect their rights and interests from the coercive acts of the employer. In fact, the employee who is constructively dismissed may be allowed to keep on coming to work.
Thank you for the reply, Sir. This is very helpful. Not just the reply but the whole site in general. Please continue giving information, however informal, to the public.. Thank you again.
very informative and enlightening and very timely as well.
im a 62 yo callcenter agent in makati city and has been on floating status from 03/20 up to the present.that is nearly 6 months.i am contemplating on filing constructive dismissal.
do you offer free legal assistance?
thank you. —
Unfortunately, we do not provide free legal assistance. But you can seek legal aid from PAO or DOLE.
Sir, will it be considered a constructive dismissal if the manager who’s been the trustee of the employer or the boss constantly yelling, intimidating, making the employee uneasy in doing his work? Sometimes telling him to just resign if he can no longer perform his duties, but always being pressured by the manager the boss’s trustee?
Yes, this can fall under constructive dismissal provided these circumstances are proved with evidence.
My brother was a government employee SG 22 in Department of Agriculture. He was arrested and charged for violation of RA9165 Visiting Drug Den but No Bail Bond Recommended. His superior PARO at DA told him on d phone that the RD was quite disappointed that he put the office in a bad in light. They adviced him to resign if not a parallel administrative case maybe filed against him. They convince him to resign so he could still get his claim and can return to government service after his criminal case is dismissed. While in prison, he was visited by DA employee who gave him a prepared resignation letter which he signed. My brother was not in the right frame of mind when he signed it. His reason for signing was that his criminal case already overwhelmed him that any possible additional admin case, to him, was no longer bearable. Can this be constructive dismissal?
Only the Civil Service Commission can determine if this is a form of constructive dismissal. If your brother thinks that he compelled by threats with administrative charges, then he may complaint with the CSC.