How do we fight 'Constructive Dismissal'?

[basti08]

In employment law, constructive dismissal, also called constructive discharge, occurs when employees resign because their employer's behaviour has become so intolerable or heinous or made life so difficult that the employee has no choice but to resign. Since the resignation was not truly voluntary, it is in effect a termination. For example, when an employer makes life extremely difficult for an employee to attempt to have the employee resign rather than outright firing the employee, the employer is trying to effect a constructive discharge.
The exact legal consequences differ between different countries, but generally a constructive dismissal leads to the employee's obligations ending and the employee acquiring the right to make claims against the employer.

Typical causes
The person causing the dismissal does not need the authority to dismiss, as long as they acted in the course of employment.[3][10]
[edit]Grounds
Constructive dismissal is typically caused by:-
unilateral contract changes by the employer such as:
deliberate[11] cuts in pay or status (even temporary[12]),
persistent delayed wages,
refusal of holiday,[13]
withdrawal of car,[14]
suspension without pay (or even on full pay[15]),
dramatic changes to duties, hours[16] or location (beyond reasonable daily travelling distance[17]), or
breach of contract in the form of bullying, e.g.:
ignoring complaints,[18]
persistent unwanted amorous advances,[19]
bullying and swearing,[20]
verbal abuse (typically referring to gender,[21] size[22] or incompetence[1]),
singling out for no pay rise,[23]
criticising in front of subordinates,[10]
lack of support (e.g. forcing to do two peoples' jobs),[24]
failure to notify a woman on maternity leave of a vacancy,[25]
refusal to confirm continuity on TUPE transfer,[26]
revealing secret complaints in a reference (even ones required by a regulator[27]), or
breaches such as:
behaviour which is arbitrary, capricious, inequitable, intolerable or outside good industrial practice,[28]
offering an incentive to resign to avoid performance managing capability,[29]
refusal to look for an alternative role due to workplace stress,[30]
disproportionate disciplinary penalty,[31]
employer cons employee into resigning.

How do we fight this? My sister is facing one right now. She's having a hard time dealing with two new gay bosses who she thinks wants her out of the office.
She have rendered more than a hundred hours of OT last month, yet was only granted 5 hours be paid. She at most of the time being asked to re-do every work that she has done only a few minutes before shift ends thus extending her work hours to yet another 4 (at the minimum)or so hours and would refuse to check her work prior to avoid mistakes. My sister is getting sick of the unsound work hours she's recently been complying. Worse is with all those OTs, not all is being approved to be paid. She's really having an emotional, moral, mental and physical (due to stress and fatigue) beating up every day of her workday. The most recent was last Saturday which is her rest day, she was asked to come to office for an important datas to be fixed. My sister came in at 8AM, her two bosses came in at 5PM and then started to make her life miserable again. And yet again, asked to do what she did all over again,,,from ground up. In short, at around 4am Sunday, with my sister's very weak senses already, sleepy eyes and demoralized feeling, she was later on allowed to go home.



I just wanna beat her bosses head to death!!!!

[_Qwerty_]

an employee needs to serve 30 days notice if he/she wants to resign, however, under part B of article 285 of the labor code, resignation of employee with just cause, the employee does not need to serve a written notice.

Just Causes for Termination by the Employee

*Serious insult by the employer or his or her representative on the honor and person of the employee;
*Inhuman and unbearable treatment accorded the employee by the employer or his or her representative;
*Commission of a crime by the employer or his or her representative against the person of the employee or any of the immediate members of his or her family; and
*Other analogous causes.

If the employee has concrete proof of the injustice done to her, then she can file a case at NLRC for separation pay, which is 1 month salary for every year of service.

[_Qwerty_]

you can also read this case.. G.R. No. 170087

Constructive dismissal is an involuntary resignation resulting in cessation of work resorted to when continued employment becomes impossible, unreasonable or unlikely; when there is a demotion in rank or a diminution in pay; or when a clear discrimination, insensibility or disdain by an employer becomes unbearable to an employee.

http://sc.judiciary.gov.ph/jurisprud...002/150092.htm

In Globe Telecom, Inc. v. Florendo-Flores, we ruled that where an employee ceases to work due to a demotion of rank or a diminution of pay, an unreasonable situation arises which creates an adverse working environment rendering it impossible for such employee to continue working for her employer. Hence, her severance from the company was not of her own making and therefore amounted to an illegal termination of employment.

[_Qwerty_]

G.R. No. 177937

Thus, as an illegally or constructively dismissed employee, respondent is entitled to: (1) either reinstatement, if viable, or separation pay, if reinstatement is no longer viable; and (2) backwages. These two reliefs are separate and distinct from each other and are awarded conjunctively.

[robot.sonic]

mas ok pa siguro mag resign na lang. matagal din yang kaso sa labor. mas stressful. may kakilala ako na nagfile ng labor case. mas malaki pa nagastos nya sa mga pamasahe + other expenses compared sa binibigay ng court.

[_Qwerty_]

may mga free lawyers naman sa PAO.. depende kasi kung ilang years na sister mo don.. kung matagal na at more than 10 yrs na.. malaki din sana makukuha sa separation pay..

mas ok pa siguro mag resign na lang. matagal din yang kaso sa labor. mas stressful. may kakilala ako na nagfile ng labor case. mas malaki pa nagastos nya sa mga pamasahe + other expenses compared sa binibigay ng court.

[basti08]

It's not about the money *robot.sonic, parang nakakainis lang na nagagawa nila yun, tapos makakalusot na sya.

btw, in this company, my sister was pirated cause of her exemplary work record. tapos etong mga bagong bading nyang boss kung pag initan sya eh 'WAGAS' talaga ampotek! btw, may offer naman na sya sa ibang company. actually, it was her company before bago sya lumipat sa current company nya. we were thinking of ways to call the attention of, i guess, authorities or management, for them to know some of the bosses practices of bullying their subordinates. btw, my sister isn't just any ordinary employee. her position is in managerial level, she's lucky that she doesn't get to commute to go home on mornights she's released from office. pano na lang kung ang pumalit sa kapatid ko eh hindi masyadong nakaka angat sa buhay? tapos papauwiin nila ng gabi, pag tatrabahuhin nila ng 18-20hrs a day? kawawa naman. para sana hindi na maulit.

[basti08]

may mga free lawyers naman sa PAO.. depende kasi kung ilang years na sister mo don.. kung matagal na at more than 10 yrs na.. malaki din sana makukuha sa separation pay..

qwerty, thanks for the info bro. actually, palipat lipat ang sister ko sa mga insurance companies. bihira ang nagtatagal ng 2-3 years sa company sa position nya. thrice na sya na pirate, in the past 5 years. 5 years pa lang sya nagtatrabaho. she's just 25.

[basti08]

tapos eto lang total OT nya

[robot.sonic]

It's not about the money *robot.sonic, parang nakakainis lang na nagagawa nila yun, tapos makakalusot na sya.

tama. pero stressful din ang pumunta sa korte. ubos oras.

kinausap nya ba ba ang HR para i question kung bakit hinde inaapprove yung 100 hours na OT nya? gawa na sya ng written letter para may evidence sya.

best dyan ay kumausap ng lawyer para ma guide kung ano ang best thing to do.

[_Qwerty_]

managers are not paid overtime diba?

[Altis6453]

I'm a bit rusty, but...

1. Your sister has not in fact resigned yet, so there is no "constructive dismissal".

2. Your sister is a "managerial employee" as you said, so technically she is not, under the Labor Code, entitled to overtime pay --- unless this form of compensation is so stipulated in her employment contract.

3. If she is receiving bad treatment from her "gay bosses" as you narrated, there are 3 possible legal remedies she can take:

- File a case against her bosses for violation of the Violence Against Women and Children Law (RA 9262)

- File a case against her bosses for unjust vexation (although this is a longshot)

- File a grievance with the company against her bosses (supposing a mechanism is in place).

I would suggest you consult a good labor lawyer before acting.

Good luck.

[basti08]

I'm a bit rusty, but...

1. Your sister has not in fact resigned yet, so there is no "constructive dismissal".

2. Your sister is a "managerial employee" as you said, so technically she is not, under the Labor Code, entitled to overtime pay --- unless this form of compensation is so stipulated in her employment contract.

3. If she is receiving bad treatment from her "gay bosses" as you narrated, there are 3 possible legal remedies she can take:

- File a case against her bosses for violation of the Violence Against Women and Children Law (RA 9262)

- File a case against her bosses for unjust vexation (although this is a longshot)

- File a grievance with the company against her bosses (supposing a mechanism is in place).

I would suggest you consult a good labor lawyer before acting.

Good luck.

1. She will be resigning some time soon.
2. My sister is a Risk Management Analyst. Calculating risk of insuring an applicant, some technical stuffs, reinsurance of policy holders etc. Entry level executive position. But she is entitled to an overtime pay as stated on her contract.

3. Thanks for the pieces of advice, my sentiments as well.

[timrev]

naku stressful yan ipatira mo nalang sa labas...

[wowiesy]

1. She will be resigning some time soon.
2. My sister is a Risk Management Analyst. Calculating risk of insuring an applicant, some technical stuffs, reinsurance of policy holders etc. Entry level executive position. But she is entitled to an overtime pay as stated on her contract.

3. Thanks for the pieces of advice, my sentiments as well.

you have a contract naman.. my advice.. you can put this in writing.. addressed to HR... tipong ipa clarify mo how your sister's OT is supposed to be computed given that your contract provides for it.. and to give a concrete example is yung mga OT entries na pinakita mo dito sa forum na to...

kung mag respond ang HR, most likely ipa meet ka.. whether HR or possible Finance group na ang magpaliwanag ng computation.... from that meeting.. try mo isummarize yung meeting.. then put it as a minutes ng meeting ng sister mo at nung kung sino man ang nag paliwanag sa kanya... na pirmado din ng ka meeting nya.... after that. the question would be bakit hindi inapply sa kanya yung ganung computation... lalabas dyan would be yung approval ng OT.... that may be a tough issue.. but at least.. documented na... pag umakyat na sister mo sa upper management (above dun sa bading na bossing nya).. documented na...

you can use that pa to file with DOLE / NLRC... pero suggest ko.. sa ganyang trabahao sa insurance.. makakakuha pa naman sya ng maayos sa iba.... leave na lang if ever.. word will get around.. baka paglipat nya matatakan pa sya.... tutal madali nya naman mabawi yung kikitain nya sa ibang company..

[basti08]

Yun nga eh... it's sad na kapag you take a stand to fight for your right, pwedeng ikasama mo pa. since sa insurance industry eh maliit lang at magkakakilala sila.

kung pwede lang sana eh ipapa- ████████████████████████ tignan ko lang ang tapang ng mga beking yon! [COMMENT BLOCKED.] (ʀᴀ ɴᴏ. 10175) bastusan na rin lang hahaha!

[robot.sonic]

Malamang ang nangyari dyan ay di nasunod ng sister mo yung Rule No. 1 of the 48 Rules of Power.

"Never outshine the Master. "

Nainsecure si bading... Natakot para sa position nya.

The 48 Laws of Power

[basti08]

Malamang ang nangyari dyan ay di nasunod ng sister mo yung Rule No. 1 of the 48 Rules of Power.

"Never outshine the Master. "

Nainsecure si bading... Natakot para sa position nya.

The 48 Laws of Power

*robot.sonic, actually very few ang katulad ng sister ko sa field nya. she's one of the few na marunong mag program ng datas. hindi lahat nakakagawa nun according to my sister, in which i believe her claim. wala sa character ng sister ko ang magbuhat ng bangko unless telling the truth accidentally insinuates it.

last that my sister told me, eh may ipapasok daw kasing bagong staff to supplement her. pero ang hula nya wala naman talaga opening. at pwesto nya ang gustong ipamigay. :twak: kasi ang tagal nang sinabi na hired na. mag 2 months na, hindi pa din nakakapasok. lalaki kasi na gwaping, atenista at conyo daw. anong laban nya? eh taga DLSU sya, babae pa! hahaha hay jokla! "JOKE!!!"

[wowiesy]

Yun nga eh... it's sad na kapag you take a stand to fight for your right, pwedeng ikasama mo pa. since sa insurance industry eh maliit lang at magkakakilala sila.

kung pwede lang sana eh ipapa- ████████████████████████ tignan ko lang ang tapang ng mga beking yon! [COMMENT BLOCKED.] (ʀᴀ ɴᴏ. 10175) bastusan na rin lang hahaha!

di naman lagi fight for your right lang eh... in the big picture... you have to weigh things... use it only as necessary... pero baseline pa rin.... communicate the issue properly to the right people... that is a way to fight for your right.... tignan kung hanggang saan aabot...

di naman lahat ng gyera kailangan ilaban.. choose your battles kung baga... but to allow you to choose your battles.. mag iipon ka rin ng leverage... yung contract mo, then yung proper communication mo to have the computation explained properly can be considered leverage later....

ibang usapan pa yung kung talagang ifile mo sa NLRC or DOLE..

[robot.sonic]

pag resign ng kapaid mo, hintayin nya na lang ang pagbagsak ng manager nya.

ganyan din yung manager ng gf ko. ang prinomote yung mga ka close nya kahit mas magaling pa gf ko. ngayong pumapalpak na yung mga prinomote nya, kung ano ano na lang ang ginagawang actions para pagtakpan yung kapalpakan ng mga kaclose nya. at nakequestion na yung manager kung bakit napromote yung mga yun.

stressed yung manager. absent na daw ng absent.

yung mga ganyang insurance companies malamang nakaretainer yan sa malalaking law firms. Di basta basta uurong yan sa labor case kasi nothing to loose naman sila. bayad yung law firm kahit may kaso o wala.