Dear Atty. Kathy,

We have an employee who is under investigation for poor performance for two consecutive years. The employee is asking if the Company will allow him to resign instead, since he knows the imposable penalty is employment termination, and he does not want to tarnish his employment records. May we allow the employee to resign? We are concerned that the employee might suddenly claim constructive dismissal because his decision to resign came at a time he was under investigation for poor performance.

Angela

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Dear Angela,

Giving the employee the option to resign, instead of being dismissed for poor performance, is an option that may be done at the discretion of the employer. As decided by the Supreme Court, that the employer did not pursue the administrative investigation proceedings for poor performance does not cast doubt on the voluntary nature of an employee’s resignation. A decision to give a graceful exit to an employee rather than to file an action for redress is perfectly within the discretion of an employer. It is not uncommon that an employee is permitted to resign to save face after the exposure of his/her malfeasance.

In your narration, you mentioned that the employee is asking to resign because he does not want to tarnish his employment records. Under the said circumstances, that the Company will no longer pursue the investigation against the employee should be considered as an act of compassion, and does not constitute dismissal, legal or illegal.

Thus, you may give the employee a graceful exit and allow the employee to resign while he is under investigation for poor performance. However, whether or not there is constructive dismissal will depend on proof that the employee was forced to resign, if any.

(Gil Sambu Jarabelo vs Household Goods Patrons Inc., et al., G.R. No. 223163, 2 December 2020.)

Atty. Kathy Larios