Transfer of Employee and Constructive DismissalAtty Elvin
Transfer of employee, no doubt, is part of management prerogatives. However, this should be done due to exigencies of business and in good faith. Otherwise, this can result in constructive dismissal.
The managerial prerogative to transfer personnel must be exercised without 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.
Read the book on 44 Rules on Employee Transfer and Demotion
Thus, it cannot be used as a subterfuge by the employer to rid himself of an undesirable worker. In particular, the employer must be able to show that the 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.
Should the employer fail to overcome this burden of proof, the employee’s transfer shall be tantamount to constructive dismissal, which has been defined as a quitting because continued employment is rendered impossible, unreasonable or unlikely; as an offer involving a demotion in rank and diminution in pay.
Likewise, constructive dismissal exists when an act of clear discrimination, insensibility or disdain by an employer has become so unbearable to the employee leaving him with no option but to forego with his continued employment.
However, in the case of Suldao vs. Cimech System Construction, Inc., it was held that while the employee’s transfer was valid, the manner by which the employer unjustifiably prevented him from returning to work on several occasions runs counter to the claim of good faith on the part of the corporation. By reporting for work, the employee 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.
Thus, the Court held that 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 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.
The post is based on the book Guide to Valid Dismissal of Employees Second Edition (pp. 107-109).