Constructive dismissal

Dear Atty. Shalie,

I have been an account officer for a small private enterprise. For more than five years, my employer trusted me with the company’s finances, from billing to collection to disbursement. During the pandemic, it had been incurring losses and deficits, such that the owners could not keep up with its payables and dues. I have been sending reports to them, but the fact is, the company had been heavily exposed to debts and other accountabilities. I received a show-cause notice to explain the current issues in the company’s financial status. I was also placed under preventive suspension. Later, I was informed that the owners decided to hire the services of an external firm, in my stead. Can I file a case against my employers for constructive dismissal, as I have already been prevented to work and was even barred from any access to my work station, without any decision yet as to the charges against me?

Albert

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Dear Albert,

Under our labor laws, the employer has the right to place an employee charged with an administrative case under preventive suspension, to prevent the latter from tampering with evidence and/or threatening witnesses against him and to make sure that he does not use his office to influence the nature of testimonies to be given. This may be resorted to as a provisional action to offenses where the continued presence of the respondent poses grave or imminent danger to the life and security of the employer and fellow employees.

In recognizing an employer’s exercise of its management prerogatives, the law requires that “in constructive dismissal cases, the employee has the burden to prove first the fact of dismissal by substantial evidence.” Bare allegations of constructive dismissal, when uncorroborated by the evidence on record, cannot be given credence. Only where the employee establishes a case of constructive dismissal, that the burden of proof shifts to the employer, to show that its management prerogative is exercised for legitimate grounds, out of business necessity and not as mere subterfuge to get rid of the employee.

In your case, it appears that you had access to your employer’s property and records, as their accountant. Since you hold a highly sensitive position and office, this may have been the consideration, when you were placed under preventive suspension. Under existing rules, you should be able to receive your salary and other benefits, after the 30-day period of preventive suspension, unless your employment has been terminated for cause. Otherwise, you may rightfully charge your employer for constructive dismissal, if it failed to resolve your case indefinitely.

Atty. Shale Obinque