Constructive dismissal

Constructive dismissal occurs not when the employee ceases to report for work, but when the unwarranted acts of the employer are committed to the end that the employee’s continued employment shall become so intolerable

(Third sequel to the April 17, 2021 issue: “Extra waiters are regular employees”)

Petitioner Allan Regala alleged that he was hired by respondent Manila Hotel Corp. (MHC) sometime in 2000 as one of its waiters assigned to the Food and Beverage Department. He was later assigned as cook helper at MHC’s chocolate room/cookies kitchen during the period from Oct. 18, 2004 to June 26, 2006. Starting Dec. 2, 2009, MHC reduced his regular work days for two days from the normal five-day work week. Thus, he filed a complaint claiming among others, constructive dismissal.

MHC denied Regala’s claim. It alleged that he is a mere freelance or “extra waiter” engaged on a short-term basis. It employs extra waiters at fixed and/or determinable periods, particularly when there are temporary spikes in the volume of its business. It relies on loose referrals from each employee and on a list of waiters who have expressed interest in parttime or temporary engagement. Regala’s supposed severance from service simply resulted from the expiration of his fixedterm employment contract.

Was Regala constructively dismissed from employment?

Ruling: Yes.

(Author’s note: The last three issues of this column contained the Supreme Court ruling that Regala is a regular employee and as such cannot be dismissed from the service without a valid cause).

Nor can it be said that MHC’s defenses were responsive to Regala’s allegations as they did not address the propriety or impropriety of the reduction of his regular work days. Notably, on this point, what is clear to this Court is that MHC failed to deny Regala’s allegation of constructive dismissal. Nor did it present any controverting evidence to prove otherwise. It is worth noting that, Section 11 , Rule 8 of the Rules of Court, which supplements the National Labor Relations Commissions’ Rules of Procedure, provides that allegations which are not specifically denied are deemed admitted.

In any event, this Court will look into the merits of Regala’s allegations in resolving the issue of constructive dismissal.

The fact that Regala may have continued reporting for work does not rule out constructive dismissal, nor does it operate as a waiver. Thus, in The Orchard Golf and Country Club v. Francisco, 706 Phil. 4 79, 499(20 13) this Court held that:

Constructive dismissal occurs not when the employee ceases to report for work, but when the unwarranted acts of the employer are committed to the end that the employee’s continued employment shall become so intolerable. In these difficult times, an employee may be left with no choice but to continue with his employment despite abuses committed against him by the employer, and even during the pendency of a labor dispute between them.

There is constructive dismissal where “there is cessation of work because ‘continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank or a diminution in pay’ and other benefits. Aptly called a dismissal in disguise or an act amounting to dismissal but made to appear as if it were not, constructive dismissal may, likewise, exist if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment.”

Patently, the reduction of Regala’s regular work days from five days to two days resulted in a diminution in pay. Regala’s change in his work schedule resulting in the diminution of his take home salary is, therefore, tantamount to constructive dismissal.

Considering the foregoing recitals, the fact of constructive dismissal should be reckoned on Dec. 2, 2009, or from the time Regala was made to accept the changes of his work schedule which thereby resulted in the diminution of his take home pay. (Allan Regala vs. Manila Hotel Corp., G.R. 204684, Oct. 5, 2020).