An employee who alleges to have been dismissed from service has the burden of proof. The rule is that before resolving the legality or illegality of dismissal, the fact of dismissal must first be established.

It is axiomatic that in illegal dismissal cases, the employer bears the burden of proving that the termination was for a valid or authorized cause. However, there are cases wherein the facts and the evidence do not establish prima facie that the employee was dismissed from employment.

Before the employer is obliged to prove that the dismissal was legal, the employee must first establish by substantial evidence the fact of his dismissal from service. If there is no dismissal, then there can be no question as to the legality or illegality thereof.

In a case where the employee alleged that when he failed to report for work on December 24, 2014, he was verbally terminated by the company. The employee claimed that company’s representative confirmed his termination. On the other hand, the company contended that the he just stopped reporting for work after he left his work on December 23, 2014.

The employee’s bare claim of having been dismissed from employment by the company, unsubstantiated by impartial and independent evidence, is insufficient to establish such fact of dismissal.

Bare and unsubstantiated allegations do not constitute substantial evidence and have no probative value. It must be emphasized that aside from the allegation that he was verbally terminated from his work, respondent failed to present any competent evidence showing that he was prevented from returning to his work.

The alleged representative did not issue any statement to corroborate the claimed termination of the employee. That he was refused to be given his salary covering the period from December 15, 2014 to December 22, 2014 did not at all prove the fact of his termination.

The Supreme Court (SC) ruled that it must be taken into account that salaries of employees may not be released for myriad of reasons. Termination may only be one of them. The basic rule of evidence that each party must prove his affirmative allegation, that mere allegation is not evidence. The Court must also stress that the evidence presented to show the employee’s termination from employment must be clear, positive, and convincing.

Absent any showing of an overt or positive act proving that the company had dismissed the employee, the latter’s claim of illegal dismissal cannot be sustained — as the same would be self-serving, conjectural, and of no probative value. [See Atienza vs. Saluta, June 17, 2019, G.R. No. 233413]

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The rule is that one who alleges a fact has the burden of proving it; thus, the employees are burdened to prove their allegation that the employer dismissed them from their employment. It must be stressed that the evidence to prove this fact must be clear, positive and convincing. (Machica vs. Roosevelt Services Center, Inc., 523 Phil. 199 (2006))

The rule that the employer bears the burden of proof in illegal dismissal cases finds no application here because the employer denies having dismissed the employees.

There can be no question as to the legality or illegality of a dismissal if the employee has not discharged his burden to prove the fact of dismissal by substantial evidence.

While it is true that in constructive dismissal cases, the employer is charged with the burden of proving that its conduct and action or the transfer of an employee are for valid and legitimate grounds such as genuine business necessity. However, it is likewise true that in constructive dismissal cases, the employee has the burden to prove first the fact of dismissal by substantial evidence.

Only then when the dismissal is established that the burden shifts to the employer to prove that the dismissal was for just and/or authorized cause. The logic is simple — if there is no dismissal, there can be no question as to its legality or illegality. [Galang vs. Boie Takeda Chemicals Inc., 790 Phil. 582, 599 (2016)]

In a case where the employee relied primarily on his allegations that he was misled by the Company into resigning and that he was actually retrenched, these uncorroborated and self-serving allegations, especially considering the existence of a resignation letter and a quitclaim (both bearing his signature), fall short of the evidence required under the law to discharge the burden to prove that he was dismissed by the Company.

In Gemina, Jr. vs. Bankwise, Inc., the SC ruled that the employee had indeed failed to state circumstances substantiating his claim of constructive dismissal as the employee therein had not claimed to have suffered a demotion in rank or diminution in pay or other benefits. Instead, the said employee only claimed to have been subjected to several acts of harassment by several officers of the employer-company, including being asked to take a forced leave of absence, demanding back the employee’s service vehicle, and delaying the release of employee’s salaries and allowances in order to compel him to quit employment.

Before the employer must bear the burden of proving that the dismissal was legal, the employee must first establish by substantial evidence the fact of his dismissal from service. Bare allegations of constructive dismissal, when uncorroborated by the evidence on record, cannot be given credence.

Where the claim is that of construction dismissal, an act, to be considered as amounting to constructive dismissal, there must be a display of utter discrimination or insensibility on the part of the employer so intense that it becomes unbearable for the employee to continue with his employment.

Where the circumstances relayed by employee in constructive dismissal case were not clear-cut indications of bad faith or some malicious design on the part of employer to make his working environment insufferable, the burden is not discharged.

In Gan vs. Galderma Philippines, Inc., the SC held that where the employee alleges that he involuntarily resigned due to circumstances in his employment that are tantamount to constructive dismissal, the employee must prove his allegations with particularity.

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An employee who claims that he is entitled to separation pay even if he resigned, has to provide proof of such entitlement. Where he failed to prove that a contract, to that effect, exists between him and the Company, it cannot be granted.

In our jurisdiction, a contract is defined in Article 1305 of the Civil Code as a meeting of the minds. This means that a contract may exist in any mode, whether written or not. If the claimant utterly failed to show that he has a perfected contract with the Company regarding his separation pay then he is not entitled to separation pay after he resigned.

Can the employee who believes he is entitled to it just write the employer and claim separation pay for his resignation?

The case of Italkarat is instructive. The Supreme Court (SC) held that to prove that the company owed him separation pay, Juraldine primarily relied on his resignation letter and the subsequent demand letter written by his lawyer. The CA incorrectly appreciated the resignation letter as one demanding for separation pay. The contents of the said resignation letter would reveal that Juraldine merely believed that he was entitled to separation pay and was not even demanding for a certain amount. In short, his

resignation was irrevocable and is patently unconditional.

Juraldine, while he believed to be entitled to separation pay, never intended to revoke his resignation. In fact, as already mentioned, the supposed separation pay does not appear to be the primary reason why Juraldine tendered his resignation as the totality of circumstances would show that he was already intending to resign and work abroad even before San Pedro allegedly talked with him and even before the Company’s supposed announcement made sometime in the last quarter of the year 2008 to retrench some workers.

Likewise, the subsequent demand letter appears to be the result of Juraldine’s disappointment when the amount reflected in the check he received did not match his expectations, which were purely based on his own belief to what he was entitled to, and is a mere afterthought. It must be reiterated that he who asserts a fact must prove such fact through evidence. In this case, Juraldine merely presented his bare and self-serving allegations, which were actually belied by the totality of evidence on record. He did not even present anything that would evince that there was a contract between him and the Company regarding his separation pay.

Juraldine did not prove that there exists a Company practice wherein resignees were given separation pay.

Aside from contract, Juraldine alternatively argued that it was a company practice to give resignees separation pay. To prove his allegations, Juraldine relied on affidavits of two former employees of the Company. The Company, on the other hand, also presented affidavits of its own, accompanied with the final payslips of former employees who have resigned.

Hence, the SC found that there was no company practice. The evidence would show that the affidavits presented by Juraldine were made by former employees who were not in the same department or job position as him. While the SC did not hastily conclude that the affiants are perjuring themselves (it may be possible that they were indeed given separation pay), these affidavits are not sufficient in proving that the Company gives separation pay as a matter of practice especially given the evidence presented by the Company, which paints a different picture.

The SC was inclined to give more weight to the Company’s affidavits as these were accompanied by the final payslips of former employees who have resigned, especially considering that at the time of resignation of one of these former employees, Gaylord Nebril, occupied the same job position as Juraldine when the latter resigned, which is maintenance director. This is compared to the job positions of Accountant and worker at the Lacquering and Wax Department held by Ms. Clarita A. Pangandayon and Ms. Evelyn A. Abella, respectively.

A company’s practice of paying separation pay to resignees must be proven to exist as this is an exception to the general rule that employees who voluntarily resign are not entitled to separation pay.

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Where the fact of employee’s dismissal from service is undisputed by the parties, the crux of the issue therefore lies on whether the supposed transgressions of employee are supported by substantial evidence, and whether they are considered just causes for their dismissal.

In the case of JR Hauling Services vs. Solamo, (G.R. No. 214294, September 30, 2020), the Supreme Court held that it is a well-established rule that the party-litigant who alleges the existence of a fact or thing necessary to establish his/her claim has the burden of proving the same by the amount of evidence required by law, which, in labor proceedings, is substantial evidence, or “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

In the hierarchy of evidentiary values, proof beyond reasonable doubt is placed at the highest level, followed by clear and convincing evidence, preponderance of evidence, and substantial evidence, in that order.

Thus, in the hierarchy of evidence, it is the least demanding. Corollarily, the ground for the dismissal of an employee does not require proof beyond reasonable doubt.

The quantum of proof required is merely substantial evidence – which only entails evidence to support a conclusion, “even if other minds, equally reasonable, might conceivably opine otherwise.” Accordingly, requiring a quantum of proof that is over and above substantial evidence is contrary to law.

Citing the case of Manila Electric Company vs. National Labor Relations Commission, the SC held further that the ground for an employer’s dismissal of an employee need be established only by substantial evidence, it not being required that the former’s evidence be of such degree as is required in criminal cases, i.e., proof beyond reasonable doubt.

It is absolutely of no consequence that the misconduct with which an employee may be charged also constitutes a criminal offense: theft, embezzlement, assault on another employee or company officer, arson, malicious mischief, etc.

The proceedings being administrative, the quantum of proof is governed by the substantial evidence rule and not, as the NLRC seems to imagine, by the rule governing judgments in criminal actions.

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Indeed, in illegal dismissal cases, the burden of proof is on the employer in proving the validity of dismissal. However, the fact of dismissal, if disputed, must be duly proven by the complainant.

The SC cited the holding in Machica vs. Roosevelt Services Center, Inc.:

“The rule is that one who alleges a fact has the burden of proving it; thus, petitioners were burdened to prove their allegation that respondents dismissed them from their employment. It must be stressed that the evidence to prove this fact must be clear, positive and convincing. The rule that the employer bears the burden of proof in illegal dismissal cases finds no application here because the respondents deny having dismissed the petitioners.”

Further, the SC held that there can be no question as to the legality or illegality of a dismissal if the employee has not discharged his burden to prove the fact of dismissal by substantial evidence, to wit:

“It is true that in constructive dismissal cases, the employer is charged with the burden of proving that

its conduct and action or the transfer of an employee are for valid and legitimate grounds such as genuine business necessity. However, it is likewise true that in constructive dismissal cases, the employee has the burden to prove first the fact of dismissal by substantial evidence. Only then when the dismissal is established that the burden shifts to the employer to prove that the dismissal was for just and/or authorized cause. The logic is simple — if there is no dismissal, there can be no question as to its legality or illegality.”

Applying the abovementioned principles in the present case, the employee clearly has the burden of proving that he was dismissed by the Company, in light of the Company’s allegation that he resigned voluntarily and was not dismissed.

Hence, The employee must first prove that he was actually dismissed by the Company before the legality of such dismissal can even be raised as an issue.

However, even a cursory perusal of the evidence on record would show that the employee failed to prove the fact of dismissal. He relied primarily on his allegations that he was misled by the Company into resigning and that he was actually retrenched. These uncorroborated and self-serving allegations, especially considering the existence of a resignation letter and a quitclaim (both bearing The employee’s signature), fall short of the evidence required under the law to discharge The employee’s burden to prove that he was dismissed by the Company.

The SC illustrates the point citing Gemina, Jr. vs. Bankwise, Inc., where the employee had indeed failed to state circumstances substantiating his claim of constructive dismissal as the employee therein had not claimed to have suffered a demotion in rank or diminution in pay or other benefits. Instead, the said employee only claimed to have been subjected to several acts of harassment by several officers of the employer-company, including being asked to take a forced leave of absence, demanding back the employee’s service vehicle, and delaying the release of employee’s salaries and allowances in order to compel him to quit employment.

Citing Philippine Rural Reconstruction Movement (PRRM) v. Pulgar, the SC ruled, that:

“It is a well-settled rule, however, that before the employer must bear the burden of proving that the dismissal was legal, the employee must first establish by substantial evidence the fact of his dismissal from service. Bare allegations of constructive dismissal, when uncorroborated by the evidence on record, cannot be given credence.”

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The answer is no.

Proceeding in labor is administrative in nature. All administrative determinations require only substantial proof and not clear and convincing evidence. (Segismundo vs. NLRC, G.R. No. 112203, December 13, 1994; Consolidated Food Corporation vs. NLRC, G.R. No. 118647, September 23, 1999; Manalo vs. Roldan Confesor, 215 SCRA 808.)

Substantial evidence is that amount of evidence which a reasonable mind might accept as adequate to justify a conclusion.

It is more than a mere scintilla; it is of a more substantial and relevant consequence and excludes vague, uncertain and irrelevant matter, implying a quality of proof which induces conviction and makes an

impression on reason.

In short, the quantum of evidence required in labor cases is less than that in criminal cases. As to level of difficulty, it is easier to prove a case in labor than in criminal court.

The value of understanding this concept from the perspective of the management or employer is to know what to prepare in case of labor dispute. Knowing the evidence to be presented to prove a position and the weight of such evidence will provide valuable insight in the preparation.

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