What Is Illegal Dismissal

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box What Is Illegal DismissalTermination by the employer of its employees is one act tolerated by law. But, once an employee is terminated without any valid and justifiable cause, there is an illegal dismissal.

When can there be an Illegal Dismissal

There can be an illegal dismissal if the following circumstances are present:

1. The dismissal is without just cause and whether or not due process was observed.
2. The dismissal is for authorized cause and whether or not due process was observed.

If the dismissal is with just or authorized cause but procedural due process was not complied with, the dismissal done to the employee is legal nevertheless the employer is liable to pay for damages.

Just causes for dismissal of an employee are those serious wrongdoings or conduct of an employee, either against the employer or the company itself. Essentially, it is the employee himself who creates the cause for his dismissal.

On the other hand, authorized causes are those which arise not from the wrongful acts of the employee but from the employer’s plan to take some cost cutting programs or labor saving device. Naturally, the dismissal is initiated by the employer.

Case on Illegal Dismissal

In a recent case decided by the Supreme Court, an employee was dismissed due to his alleged absenteeism from the office. But since the employer has failed to produce proofs of the employee’s absenteeism and the fact that the employee was still able to collect his salaries after his alleged absences casts doubts on the truthfulness of such charge. In an illegal dismissal case, the onus probandi rests on the employer to prove that the dismissal of an employee is for a valid cause. (Real vs. Sangu Phils., Inc. and/or Kiichi Abe, G. R. No. 168757, January 2011).

Moreover, petitioner’s dismissal was affected without due process of law. Since in this case, petitioner’s dismissal was affected through a board resolution and all that petitioner received was a letter informing him of the board’s decision to terminate him, the abovementioned procedure is clearly not complied with. (Real vs. Sangu Phils., Inc. and/or Kiichi Abe, G. R. No. 168757, January 2011).

Reliefs of an Illegally Dismissed Employee

An illegally dismissed employee can claim for reinstatement, full backwages, damages, other benefits which rightfully belongs to him and attorney’s fee.
These claims should be stated in a complaint filed with the concerned tribunal.

What Is Constructive Dismissal

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dismissal 300x198 What Is Constructive DismissalConstructive dismissal is defined as quitting because continued employment is rendered impossible, unreasonable or unlikely. (Philippine Japan Active Carbon Corporation vs. NLRC, G. R. No. 83239, March 8, 1989). This exercise of an employer is considered illegal.

Usually, constructive dismissal happens when an employee is reassigned to another work, demoted, or transferred. There may be constructive dismissal if there is diminution of pay to employees or if the employee is preventively suspended. If these circumstances are coupled with bad faith or discrimination, the act of the employer amounts to constructive dismissal.

In one case, the employee was demoted from being a security guard to a common laborer in a sugar plantation. His salary was decreased as he was paid either on a daily or piece work basis instead of his previous salary which is on a monthly basis.

Resignation not Voluntary

Even if the employee has resigned, still the employee can contest the unemployment. In a case of constructive dismissal, the law deemed the employee not to have voluntarily ceased to work but was only compelled to leave his post due to the prevailing harsh, discriminatory and unfavorable circumstances.

Burden of Proof on the Employer

In case of constructive dismissal, the employer has the burden of proving that the transfer and demotion of an employee are for valid and legitimate grounds such as genuine business necessity. Particularly, for a transfer not to be considered a constructive dismissal, the employer must be able to show that such transfer is not unreasonable, inconvenient, or prejudicial to the employee; nor does it involve a demotion in rank or a diminution of his salaries, privileges and other benefits. Failure of the employer to overcome this burden of proof, the employee’s demotion shall no doubt be tantamount to unlawful constructive dismissal. (Philippine Industrial Security Agency Corp. vs. Aguinaldo, G. R. No. 149974, June 15, 2005)

Relief of a Constructively Dismissed Employee

Employees who have been constructively dismissed can file an action for illegal dismissal and claim for benefits that were unlawfully withheld from him. Claim includes those which an illegally dismissed employee can demand.