It does not cover instances where employees are forced to resign with the use of threats, intimidation, coercion, manipulation, or where dismissal is imposed as a penalty for an offense.Forced or coerced resignation is illegal and considered “constructive” dismissal – a dismissal in disguise.
Philippine laws only grant separation pay to those who were dismissed from service not due to their own fault or negligence but for reasons that are beyond their control, i.e.
business closure, cessation of operation, retrenchment (reduction of costs) to prevent losses, etc.
In such cases, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the investigation and/or hearing, to dismiss the worker.
May an employee question the legality of his or her dismissal? The legality of a dismissal may be questioned before the Labor Arbiter of a Regional Arbitration Branch of the National Labor Relations Commission (NLRC) of the Philippines, through a complaint for illegal dismissal.
Just cause involves a two-notice rule while authorized cause requires a 30-day notice.
If due process is not accorded to the employee before termination of the employment or the termination itself is declared illegal, the employee is entitled to receive reinstatement and full backwages (Art. If reinstatement is no longer possible where the dismissal was unjust, separation pay may be granted.
In establishments with a collective bargaining agreement (CBA), the dismissal may be questioned through the grievance machinery established under the CBA.
If the complaint is not resolved at this level, it may be submitted to voluntary arbitration.
-The employee must elaborate, support, or substantiate their complaint that they were dismissed without valid cause.
In cases of illegal dismissal, who has the duty of proving that the dismissal is valid? What is the sanction if the employer failed to observe procedural due process in cases of legal and authorized termination?