It is  the voluntary act of an employee who is in a  situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and he has then no other choice but to disassociate himself from employment. [Bance, et al. vs. University of St. Anthony, G.R. No. 202724, February 3, 2021]

The intent to relinquish must concur with the overt act of relinquishment; hence, the acts of the employee before and after the alleged resignation must be considered in determining whether he in fact intended to terminate his employment. In illegal dismissal cases, it  is a  fundamental rule that when an employer interposes the defense of resignation, on him necessarily rests the burden to prove that the employee indeed voluntarily resigned.

In the case of Bance, the SC resolved the situation where the employees resigned prior to the effectivity of their termination. Then they filed an illegal dismissal case.

What will happen to the labor case?

The complainants resigned prior to the effectivity date of the termination of their employment. There were ongoing investigations against them for the irregular acts they committed thereby placing them in a  difficult position. The SC found that from the wordings of the resignation letters, it could be implied that their resignations were voluntary.

Though not the sole test, the SC held that the wording of resignation letters may be considered as a factor, together with other circumstances, in assessing the voluntariness of a  resignation.

Also, to emphasize, petitioners did not contend or present countervailing evidence that their resignation was involuntary. Likewise, it is settled that there is  nothing reprehensible or illegal when the employer grants the employee a  chance to resign and save face rather than smear the latter’s employment record.”

Thus, because of the voluntary resignations of complainants prior to the termination of their employment, their complaints for illegal dismissal have no basis.

See here the procedure to observe when the employee refuses to receive employer’s notice.

In addition, the company should send another copy by registered mail and keep the registry receipt for future reference.

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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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In the case of Italkarat 18, Inc. vs. Gerasmio, G.R. No. 221411, September 28, 2020, the Supreme Court (SC) ruled that the complainant therein, Juraldine, failed to prove that a contract exists between him and the Company.

The SC held that 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. In this case, however, Juraldine utterly failed to show that he has a perfected contract with the Company regarding his separation pay.

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.

We have ruled that 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.

In this case, we agree with the NLRC’s findings 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.

The SC ruled that while it cannot 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.

In conclusion, considering that there was no dismissal involved in this case as Juraldine voluntarily resigned from work, his claims arising from his complaint for illegal dismissal must be denied. This includes his claim for separation pay as he failed to prove his entitlement thereto, either via contract or company practice.

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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.”

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

Read more on procedural due process discussion by Atty. Elvin:

Read more on procedural due process by Atty. Villanueva:

Twin Requirements of Notice and Hearing

Procedural Due Process for Other Types of Employment

Notice to Explain: Contents and Requirements