Constructive dismissal occurs when there is cessation of work because continued employment is rendered impossible, unreasonable, or unlikely as when there is a demotion in rank or diminution in pay or when a clear discrimination, insensibility, or disdain by an employer becomes unbearable to the employee leaving the latter with no other option but to quit. (Tan Brothers Corporation of Basilan City vs. Escudero G.R. No. 188711, July 3, 2013 citing The University of Immaculate Conception vs. NLRC, G.R. No. 181146, January 26, 2011.)
Constructive dismissal defined is dismissal in disguise. Constructive dismissal is defined as quitting or cessation of work because continued employment is rendered impossible, unreasonable or unlikely; when there is a demotion in rank or a diminution of 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 (Gemina Jr. vs. Bankwise Inc. (Thrift Bank), G.R. No. 175365, October 23, 2013.)
The test is whether a reasonable person in the employee’s position would have felt compelled to give up his position under the circumstances.
In the Tan case, the Court held that the fact that the employee was deprived of office space, was not
given further work assignment and was not paid her salaries until she was left with no choice but stop reporting for work all combine to make out a clear case of constructive dismissal.
There is involuntary resignation due to the harsh, hostile, and unfavorable conditions set by the employer.
The test of constructive dismissal is whether a rea- sonable person in the employee’s position would have felt compelled to give up his employment/position under the circumstances.
On the other hand, resignation is the voluntary act of an employee who is in a situation where one believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and one has no other choice but to dissociate oneself from employment. It is a formal pronouncement or relinquishment of an office, with the intention of relinquishing the office accompanied by the act of relinquishment. As the intent to relinquish must concur with the overt act of relinquishment, the acts of the employee before and after the alleged resignation must be considered in determining whether he or she, in fact, intended to sever his or her employment.
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In one case, the employees reasoned out that their failure to report for work was due to harassment or discrimination which resulted in constructive dismissal.
The Court however, held that the employees having failed to substantiate their claim of constructive dismissal, should be deemed to have abandoned their work, thus, their dismissal is warranted. Abandonment is the deliberate and unjustified refusal of an employee to resume his employment, without any intention of returning. It is a form of neglect of duty, hence, a just cause for termination of employment by the employer. For abandonment to be a valid ground for dismissal, two elements must then be satisfied: (1) the failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever the employer-employee relationship. The second element is the more determinative factor and must be evinced by overt facts.