Employee Constructively Dismissed may be Allowed to Keep Coming to Work

Constructive dismissal is 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.

In Siemens Philippines, Inc. vs. Domingo, [582 Phil. 86 (2008)] it was declared that “an employee who is forced to surrender his position through the employer’s unfair or unreasonable acts is deemed to have been illegally terminated and such termination is deemed to be involuntary.”

Constructive dismissal does not always involve forthright dismissal or diminution in rank, compensation, benefit and privileges. There may be 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 could foreclose any choice by him except to forego his continued employment.

As a reminder, the Supreme Court states the doctrine in Aguilar vs. Burger Machine Holdings Corporation, [536 Phil. 985 (2006)] to wit –

“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. Based on the factual considerations in the instant case, we hold that the hostile and unreasonable working conditions of petitioner justified the finding of the Labor Arbiter and the NLRC that petitioner was constructively dismissed. Petitioner’s performance may not have been exceptional as he ranked 14th in the quality food service control survey for the 1st quarter of 2002. But he was certainly not grossly inefficient as Burger Machine pictured him to be. In fact, he received several citations and was able to comply with the directive to reduce his shortages for the month of November 2001. From all indications, there is really no ground to dismiss petitioner for gross inefficiency. And, as Burger Machine saw it, the only way to get rid of the latter was to constructively dismiss him.”

No employee should be subjected to constant harassment, ridicule and inhumane treatment on the basis of management prerogative or even for poor performance at work.

The means does not justify the end; thus, the same should be in accordance with the norms of due process.

Again, the employee who is constructively dismissed may be allowed to keep on coming to work. Constructive dismissal is therefore a dismissal in disguise. 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. [Uniwide Sales Warehouse Club vs. NLRC, G.R. No. 154503, February 29, 2008]

Learn how to Validly Terminate Employee in the Philippines with this Tutorial Video of Atty. Elvin

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