"Constructive dismissal 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." It is a "dismissal in disguise or an act
amounting to dismissal but made to appear as if it were not." Constructive dismissal
may likewise exist 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." "Constructive dismissal
exists when the employee involuntarily resigns due to the harsh, hostile, and
unfavorable conditions set by the employer." "The test of constructive dismissal is
whether a reasonable person in the employees position would have felt compelled to
give up his position under the circumstances."
For a termination of employment on the ground of abandonment to be valid, the
employer "must prove, by substantial evidence, the concurrence of [the employees]
failure to report for work for no valid reason and his categorical intention to discontinue
employment." In the present case, it appears that there is no intention to abandon
employment; respondents repeated absence were caused by Angs oppressive treatment
and indifference which respondents simply grew tired of and wanted a break from.
Indeed, an employee cannot be expected to work efficiently in an atmosphere where the
employers hostility pervades; certainly, it is too stressful and depressing the threat of
immediate termination from work, if not aggression, is a heavy burden carried on the
employees shoulder. Respondents may have stayed away from work to cool off, but not
necessarily to abandon their employment. The fact remains that respondents returned
to work, but then their time cards had been torn to pieces. (G.R. No. 185549
August 7, 2013, VICENTE ANG, PETITIONER, vs. CEFERINO SAN JOAQUIN,
JR., AND DIOSDADO FERNANDEZ, RESPONDENTS.)

Besides, as correctly held by the CA, the immediate filing of the labor case negates the
claim of abandonment. Employees who immediately protest their dismissal, as by filing
a labor case, cannot logically be said to have abandoned their employment.
(Megaforce Security and Allied Services, Inc. v. Lactao, G.R. No. 160940,
July 21, 2008, 559 SCRA 110, 118.)

Case law holds that constructive dismissal occurs when there is 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.
Respondents sudden, arbitrary and unfounded adoption of the two-day work scheme
which greatly reduced petitioners salaries renders it liable for constructive dismissal.

Respecting the appellate courts ruling that petitioners "simply disappeared" from their
work, hence, they are guilty of abandonment, the same does not lie.1avvphi1
Absence must be accompanied by overt acts unerringly pointing to the fact that the
employee simply does not want to work anymore. And the burden of proof to show
that there was unjustified refusal to go back to work rests on the employer.
xxxx
Abandonment is a matter of intention and cannot lightly be inferred or legally presumed
from certain equivocal acts. For abandonment to exist, two requisites must concur: first,
the employee must have failed to report for work or must have been absent without valid
or justifiable reason; and second, there must have been a clear intention on the part of
the employee to sever the employer-employee relationship as manifested by some overt
acts. The second element is the more determinative factor. Abandonment as a just
ground for dismissal thus requires clear, willful, deliberate, and unjustified refusal of the
employee to resume employment. Mere absence or failure to report for work, even after
notice to return, is not tantamount to abandonment. (Emphasis and underscoring
supplied) (G.R. No. 177059, March 13, 2009, FE LA ROSA, OFELIA VELEZ,
CELY DOMINGO, JONA NATIVIDAD and EDGAR DE LEON, Petitioners, vs.
AMBASSADOR HOTEL, Respondent.)

Upon the other hand, petitioners immediate filing of complaints for illegal suspension
and illegal dismissal after the implementation of the questioned work scheme, which
scheme was adopted soon after petitioners complaints against respondent for violation
of labor standards laws were found meritorious, negates respondents claim of
abandonment. An employee who takes steps to protest his dismissal cannot by logic be
said to have abandoned his work. (Samarca v. Arc-Men Industries, Inc., G.R. No.
146118, October 8, 2003, 413 SCRA 162, 168.)

After a painstaking review of the records, we uphold the findings of the Labor Arbiter
and of the NLRC that petitioner was constructively dismissed. Constructive dismissal or
a constructive discharge has been defined as quitting because continued employment is
rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank
and a diminution in pay. In the instant case, there is constructive dismissal because the
continued employment of petitioner is rendered impossible so as to foreclose any choice
on his part except to resign from such employment.
In cases of constructive dismissal, the burden of proof is on the employer to show that
the employee was dismissed for a valid and a just cause.

While the decision to transfer employees to other areas of its operations forms part of
the well recognized prerogatives of management, it must be stressed, however, that the
managerial prerogative to transfer personnel must not be exercised with grave abuse of
discretion, bearing in mind the basic elements of justice and fair play. Having the right
should not be confused with the manner in which that right is exercised. Thus it cannot
be used as a subterfuge by the employer to rid himself of an undesirable worker.
In the instant case, while petitioners transfer was valid, the manner by which
respondent unjustifiably prevented him from returning to work on several occasions
runs counter to the claim of good faith on the part of respondent corporation. By
reporting for work, petitioner manifested his willingness to comply with the regulations
of the corporation and his desire to continue working for the latter. However, he was
barred from entering the premises without any explanation. This is a clear manifestation
of disdain and insensibility on the part of an employer towards a particular employee
and a veritable hallmark of constructive dismissal.
While the decision to transfer employees to other areas of its operations forms part of
the well recognized prerogatives of management, it must be stressed, however, that the
managerial prerogative to transfer personnel must not be exercised with grave abuse of
discretion, bearing in mind the basic elements of justice and fair play. Having the right
should not be confused with the manner in which that right is exercised. Thus it cannot
be used as a subterfuge by the employer to rid himself of an undesirable worker. (G.R.
No. 171392, October 30, 2006, RUPERTO SULDAO, petitioner, vs.
CIMECH SYSTEM CONSTRUCTION, INC. and ENGR. RODOLFO S.
LABUCAY, respondents.)

Thus, an illegally dismissed employee is entitled to two reliefs: backwages and

reinstatement. The two reliefs provided are separate and distinct. In instances where
reinstatement is no longer feasible because of strained relations between the employee
and the employer, separation pay is granted. In effect, an illegally dismissed employee is
entitled to either reinstatement, if viable, or separation pay if reinstatement is no longer
viable, and backwages. (Golden Ace Builders v. Talde ,G.R. No. 187200, May 5,
2010, 620 SCRA 283, referring to Macasero v. Southern Industrial Gases
Philippines, G.R. No. 178524, January 30, 2009, 577 SCRA 500.)

"The accepted doctrine is that separation pay may avail in lieu of reinstatement if
reinstatement is no longer practical or in the best interest of the parties. Separation pay
in lieu of reinstatement may likewise be awarded if the employee decides not to be
reinstated." x x x. (Golden Ace Builders v. Talde ,G.R. No. 187200, May 5,
2010, 620 SCRA 283)

Under the doctrine of strained relations, the payment of separation pay is considered an
acceptable alternative to reinstatement when the latter option is no longer desirable or
viable. On one hand, such payment liberates the employee from what could be a highly
oppressive work environment. On the other hand, it releases the employer from the
grossly unpalatable obligation of maintaining in its employ a worker it could no longer
trust. (Id. at 289-290, citing Velasco v. NLRC, 525 Phil. 749, 761 (2006) and
Coca-Cola Bottlers Phils. Inc. v. Daniel, 499 Phil. 491, 511 [2005])

Constructive Dismissal
Constructive dismissal is an employers act amounting to dismissal but made to appear
as if it were not a dismissal in disguise. In most cases of constructive dismissal, the
employee is allowed to continue to work, but is simply reassigned, or demoted, or his
pay diminished without a valid reason to do so.
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 or the employee that it could foreclose any choice by him except
to forego his continued employment. (Hyatt Taxi Services case, G.R. No. 143204,
June 26, 2001.)
Constructive dismissal is an involuntary resignation resulting in cessation of work
resorted to when continued employment becomes impossible, unreasonable or unlikely;
when there is a demotion in rank or a diminution in pay; or when a clear discrimination,
insensibility or disdain by an employer becomes unbearable to an employee.
Diminution of pay. A diminution of pay is prejudicial to the employee and amounts to
constructive dismissal. (Francisco vs. NLRC)
Transfer of employee amounting to constructive dismissal. A transfer amounts to
constructive dismissal when the transfer is unreasonable, unlikely, inconvenient,
impossible, or prejudicial to the employee. (Phil. Industrial Security Agency Corp.
vs. Aguinaldo, G.R. No. 149974, June 15, 2005.)
Constructive dismissal exists where there is 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" Globe Telecom, Inc. v. Florendo-Flores,
438 Phil. 756, 766 (2002) citing Philippine Japan Active Carbon
Corporation v. NLRC, et al., 253 Phil. 149, 152, (1989).

Constructive dismissal may, likewise, exist 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. Hyatt
Taxi Services, Inc. v. Catinoy, 412 Phil. 295, 306 (2001).
In cases of a transfer of an employee, the rule is settled that the employer is charged
with the burden of proving that its conduct and action are for valid and legitimate
grounds such as genuine business necessity and that the transfer is not unreasonable,
inconvenient or prejudicial to the employee. If the employer cannot overcome this
burden of proof, the employees transfer shall be tantamount to unlawful constructive
dismissal. Westmont Pharmaceuticals, Inc. v. Samaniego, 518 Phil. 41, 51
(2006).
Although there is no reduction of the salary of petitioner, constructive dismissal is still
present because continued employment of petitioner is rendered, at the very least,
unreasonable. Mendiola vs. Court of Appeals, 497 SCRA 346.
Preventive suspension which last beyond the maximum period allowed by the
Implementing Rules amounts to constructive dismissal. Maricalum Mining
Coporation vs. Decorion, 487 SCRA 182.
Constructive dismissal exists as an involuntary resignation on the part of the employee
due to the harsh, hostile and unfavorable conditions set by the employer-it is an act
amounting to dismissl but made to appear as if it were not-a dismissal in disguise.
Aguilar vs. Burger Machine Holdings Corporation, 506 SCRA 266.
The test of constructive dismissal is whether a reasonable person in the employees
position would have felt compelled to give up his position under the circumstances. Id.;
CRC Agricultural Trading vs NLRC, 609 SCRA 138.
The failure of petitioner to give respondent work assignement beyond the reasonable
six-month period makes it liable for constructive dismissal. Id.
The rules is settled the off-detailing is not equivalent to dismissal, so long as such
status does not continue beyond a reasonable time and that it is only when such a
floating status lasts for more than six months that the employee my be considered to
have been constructively dismissed. Nippon Housing Phil., Inc. Vs. Leynes, 655
SCRA 77

Constructive dismissal
Constructive dismissal exists where there is 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. Aptly called a dismissal in
disguise or an act amounting to dismissal but made to appear as if it were
not, constructive dismissal may, likewise, exist 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. In cases of a transfer of an employee, the rule is settled that the employer
is charged with the burden of proving that its conduct and action are for valid and
legitimate grounds such as genuine business necessity and that the transfer is not
unreasonable, inconvenient or prejudicial to the employee. If the employer cannot
overcome this burden of proof, the employees transfer shall be tantamount to unlawful
constructive dismissal. Jonathan V. Morales vs. Harbour Centre Port Terminal,
Inc., G.R. No. 174208, January 25, 2011.

In constructive dismissal cases, the employer has the burden of proving that the transfer
of an employee is for just or valid ground, such as genuine business necessity. The
employer must demonstrate that the transfer is not unreasonable, inconvenient, or
prejudicial to the employee and that the transfer does not involve a demotion in rank or
a employees salary and other benefits. If the employer fails to overcome this burden of
proof, the employees transfer is tantamount to unlawful constructive dismissal. [Merck
Sharp and Dohme (Philippines) v. Robles, G.R. No. 176506, November 25, 2009]
Petitioners failed to satisfy the burden of proving that the transfer was based on just or
valid ground. Petitioners bare assertions of imminent threat from the respondents are
mere accusations which are not substantiated by any proof. The Supreme Court agreed
with the Court of Appeals in ruling that the transfer of respondents amounted to a
demotion. Julies Bakeshop and/or Edgar Reyes vs. Henry Arnaiz, et. al., G.R.
No. 173882, February 15, 2012.

Constructive dismissal 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. Constructive dismissal is a dismissal in
disguise or an act amounting to dismissal but made to appear as if it were not. In
constructive dismissal cases, the employer is, concededly, 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. In the instant case, the overt act
relied upon by petitioner is not only a doubtful occurrence but is, if it did transpire, even
consistent with the dismissal from employment posited by the respondent. The factual appraisal
of the Court of Appeals is correct. Petitioner was displeased after incurring expenses for
respondents medical check-up and, it is credible that, thereafter, respondent was prevented entry
into the work premises. This is tantamount to constructive dismissal. The Supreme Court
agreed with the Court of appeals that the incredibility of petitioners submission about
abandonment of work renders credible the position of respondent that she was

prevented from entering the property. This was even corroborated by the affidavits of
Siarot and Mendoza which were made part of the records of this case. Ma. Melissa A.
Galang vs. Julia Malasuqui, G.R. No. 174173, March 7, 2012.

ln labor cases, strict adherence with the technical rules is not required. This liberal
policy, however. should still conform with the rudiments of equitable principles of law.
For instance, belated submission of evidence may only be allowed if the delay is
adequately justified and the evidence is clearly material to establish the patty's cause.
The rule is that it is within the ambit of the employers prerogative to transfer an
employee for valid reasons and according to the requirement of its business, provided
that the transfer does not result in demotion in rank or diminution of salary, benefits
and other privileges. This Court has always considered the managements prerogative to
transfer its employees in pursuit of its legitimate interests. But this prerogative should
be exercised without grave abuse of discretion and with due regard to the basic elements
of justice and fair play, such that if there is a showing that the transfer was unnecessary
or inconvenient and prejudicial to the employee, it cannot be upheld.
Here, while we find that the transfer of Cagalawan neither entails any demotion in rank
since he did not have tenurial security over the position of head of the disconnection
crew, nor result to diminution in pay as this was not sufficiently proven by him,
MORESCO IIs evidence is nevertheless not enough to show that said transfer was
required by the exigency of the electric cooperatives business interest. Simply stated,
the evidence sought to be admitted by MORESCO II is not substantial to prove that
there was a genuine business urgency that necessitated the transfer.
When there is doubt between the evidence submitted by the employer and that
submitted by the employee, the scales of justice must be tilted in favor of the employee.
This is consistent with the rule that an employers cause could only succeed on the
strength of its own evidence and not on the weakness of the employees evidence. Thus,
MORESCO II cannot rely on the weakness of Ortizs certification in order to give more
credit to its own evidence. Self-serving and unsubstantiated declarations are not
sufficient where the quantum of evidence required to establish a fact is substantial
evidence, described as more than a mere scintilla. The evidence must be real and
substantial, and not merely apparent. MORESCO II has miserably failed to discharge
the onus of proving the validity of Cagalawans transfer. Misamis Oriental II
Electric Service Cooperative (MORESCO II) vs. Virgilio M. Cagalawan. G.R.
No. 175170,September 5, 2012

Constructive dismissal exists when the resignation on title 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 petitioner felt oppressed by the situation created by the private
respondent corporation, and this forced her to surrender her position.
(ICT
MAJRKETING SERVICES, INC. (NOW KNOWN AS SYKES MARKETING
SERVICES, INC.), PETITIONER, VS. MARIPHIL L. SALES, RESPONDENT,
G.R. No. 202090, September 09, 2015)
In Superstar Security Agency, Inc. and/or Col. Andrada v. NLRC, the Court ruled that
placing an employee on temporary "off-detail" is not equivalent to dismissal provided
that such temporary inactivity should continue only for a period of six (6) months. In
security agency parlance, being placed "off-detail" or on "floating status" means "waiting
to be posted." In Salvaloza v. NLRC, the Court further explained the nature of the
"floating status," to wit:
Temporary "off-detail" or "floating status" is the period of time when security guards are
in between assignments or when they are made to wait after being relieved from a
previous post until they are transferred to a new one. It takes place when the security
agency's clients decide not to renew their contracts with the agency, resulting in a
situation where the available posts under its existing contracts are less than the number
of guards in its roster. It also happens in instances where contracts for security services
stipulate that the client may request the agency for the replacement of the guards
assigned to it even for want of cause, such that the replaced security guard may be
placed on temporary "off-detail" if there are no available posts under the agency's
existing contracts. During such time, the security guard does not receive any salary or
any financial assistance provided by law. It does not constitute a dismissal, as the
assignments primarily depend on the contracts entered into by the security agencies
with third parties, so long as such status does not continue beyond a reasonable
time. When such a "floating status" lasts for more than six (6) months, the
employee
may
be
considered
to
have
been
constructively
dismissed. (Emphasis supplied)

Relative thereto, 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,or when 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. (VICENTE
C. TATEL, PETITIONER, VS. JLFP INVESTIGATION SECURITY AGENCY, INC., JOSE
LUIS F. PAMINTUAN, AND/OR PAOLO C. TURNO, RESPONDENTS, G.R. No.
206942, February 25, 2015)