Dear Atty. Kathy,

I am being investigated by my employer for irregularities in the Accounting Department which I did not commit. However, I was already told that I should not report for work during the investigation since I am on preventive suspension. I still tried to go to work because my family needs the money, but I was not allowed to even enter the gate of the company. Do I have grounds file a case for illegal dismissal since I was already prevented from working? Due to the very unfair treatment to me, may I ask for separation pay instead of going back to my old job? I do not think I can still work with the Company given what they did to me.

Mya

Dear Mya,

In cases of illegal dismissal, the employer bears the burden of proof to prove that the termination was for a valid or authorized cause. But before the employer must bear the burden of proving that the dismissal was legal, the employee must first establish by substantial evidence that indeed he/she was dismissed. If there is no dismissal, then there can be no question as to the legality or illegality thereof.

Based solely on your narration, it does not appear that you were dismissed, but that you were only told not to report for work during the investigation since you are on preventive suspension. Filing an illegal dismissal case during the investigation would be premature, if not pre-emptive. In sum, since there is no dismissal, there is no ground for an illegal dismissal case.

With regard to separation pay, it is only awarded to a dismissed employee in the following instances: 1) in case of closure of establishment under Article 298 [formerly Article 283] of the Labor Code; 2) in case of termination due to disease or sickness under Article 299 [formerly Article 284] of the Labor Code; 3) as a measure of social justice in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character; 4) where the dismissed employee's position is no longer available; 5) when the continued relationship between the employer and the employee is no longer viable due to the strained relations between them; or 6) when the dismissed employee opted not to be reinstated, or the payment of separation benefits would be for the best interest of the parties involved.