Dear PAO,

My brother employs several workers in his small waterrefilling business. One of his employees submitted her resignation letter which my brother accepted. He asked her to sign a release and quitclaim and paid her all her unpaid benefits. Subsequently, my brother received a demand letter for separation pay from the said employee. She claims that her supervisor made her believe that she will receive a huge sum if she leaves their company. The supervisor denies this fact. However, the employee was unable to provide any evidence to her claim. Now, she is threatening to file a complaint for constructive illegal dismissal. We just want to know, can there be illegal dismissal if the employee cannot even prove that she was laid off?

Larry

Dear Larry,

Resignation is one of the recognized means of terminating an employment which is initiated by the employee. Under our law, an employee who opts to resign is not granted any separation pay.

The Labor Code of the Philippines, as amended and renumbered, provides when and how a private employee can resign, as well as its lawful causes, but nowhere does it reflect therein the endowment of separation pay in favor of the resigned employee. Article 300 of the Code states:

“ART. 300. (285) Termination by employee. –

“(a) An employee may terminate without just cause the employee-employer relationship by serving a written notice on the employer at least one (1) month in advance. The employer upon whom no such notice was served may hold the employee liable for damages.

“(b) An employee may put an end to the relationship without serving any notice on the employer for any of the following just causes: 1. Serious insult by the employer or his representative on the honor and person of the employee; 2. Inhuman and unbearable treatment accorded the employee by the employer or his representative; 3. Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family; and

“4. Other causes analogous to any of the foregoing.”

Accordingly, your brother’s employee is not entitled to separation pay if she, in fact, resigned from her post considering that such benefit is not granted by our law. Although there are two instances when a resigned employee may be entitled to separation pay, to wit: (1) if this benefit is expressly stipulated in the contract of employment, or (2) if there is an existing company practice to this effect, if she cannot prove either of these instances then she may not successfully demand for it.

Moreover, we submit that there can be no illegal dismissal if the employee herself cannot prove that he or she was dismissed in the first place. It is incumbent upon the employee to prove such fact of dismissal as it is only when this is established can the question of the legality or illegality of such dismissal be dealt with.

As explained by our Supreme Court, through Associate Justice Ramon Paul L. Hernando in the case of Italkarat 18, Inc. vs. Juraldine Gerasraio (GR 221411, Sept. 28, 2020):

“Indeed, in illegal dismissal cases, the burden of proof is on the employer in proving the validity of dismissal. However, the fact of dismissal, if disputed, must be duly proven by the complainant. xxx

“Based on the foregoing discussion, it is therefore not enough for Juraldine to allege that he was threatened and thereafter misled to resign in order for the tribunals and courts to rule that he was constructively dismissed. Juraldine must prove with particularity the alleged acts of coercion and intimidation which led him to resign. This, Juraldine failed to do. x x x

“To summarize, if the fact of dismissal is disputed, it is the complainant who should substantiate his claim for dismissal and the one burdened with the responsibility of proving that he was dismissed from employment, whether actually or constructively. Unless the fact of dismissal is proven, the validity or legality thereof

cannot even be an issue. In the present case, the fact of the matter is that it was Juraldine himself who resigned from his work, as shown by the resignation letter he submitted and the quitclaim that he acknowledged, and thus, he was never dismissed by the Company.” (Emphasis supplied).

We hope that we were able to answer your queries. This advice is based solely on the facts that you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.