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Dismissal Story
(Part V)
Resignation, Suspension of
Operations & Retirement

A. Resignation

a. Resignation – focus is on service of NOTICE, not on cause. No just or

authorized cause required. Employer has no control because of
involuntary servitude provision. Employment can only be reasonably
regulate

i. One month notice required

aa. violatation of notice rule – less than 15 days; dismissal
too harsh a penalty to impose.

ii. grounds are:

aa. serious insult to the employee

bb. inhuman and unbearable treatment
cc. commission of offense or crime
dd. other analogous causes

iii. withdrawal of resignation – resignation is withdrawable at any

time before acceptance.

aa. after acceptance – can only withdraw with the

conformity of the employer.

bb. Does employee have to say he is resigning – in one case,

intemperate letter was considered as intent to resign that
the employer accepted.

iv. Resignation pay – none provided by law – employee must

depend on practice or contract.
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aa. potential issue is discrimination – if given to others

amounting to practice, must be given to all

bb. Question – how do you get out of a practice – should

suffice if announcement is made but this must be
prospective.

B. Constructive Dismissal

a. Concept – consequence of action of employer that, without

actually dismissing an employee, nevertheless has the effect of
dismissal because of change in the employment relationship.

i. Eg. – unjustified demotion in rank and pay; unjustified

transfer to an inconvenient post; intolerable condition for
continuation of employment relationship.
1. To determi ne if CD has occurred, use Analytical
Frame work.

a. Indications of intent to change nature of

relationship;
b. Evidence
c. Management justification for its move.

ii. CD resulting from preventive suspension for more than 30

days – divided rulings.

1. Track One - is constructive dismissal - (Hyatt Fast

Services case).

2. Track Two – no constructive dismissal – after 30 days,

employer liable to pay wages of employee

3. JADB view – depends on the circumstances. Use the

Analytical Framework and assess.

C. Suspension of Operations or Lay – Off

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i. Under Art 301 – suspension of operations (implying total

cessation) is allowed (for employer’s own reason) for a
period of 6 months or to enable the employee to fulfill a
military or civic duty.

1. Employer reason – should be made in good faith and

without motivation contrary to law or employer’s
labor obligation.

2. Employer obligation – to allow return of employee –

no later than 1 month after operations resume or
when military or civic duty is completed.

3. If lay-off is directed for selected employees (i.e., for

less than all of the employee force) – this can be done
depending on employer’s justification.

a. If the lay-off exceeds 6 months, there may be

resulting dismissal under retrenchment
situation and separation pay is required.