Romualdez-Marcos vs Comelec

ROMUALDEZ-MARCOS vs. COMELEC

G.R. No. 119976, September 18, 1995

FACTS:

Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy (COC) for the position of Representative of the First District of Leyte, stating that she is 7-months resident in the said district. Private respondent Montejo, incumbent Representative and a candidate for the same position, filed a Petition for Cancellation and Disqualification, alleging that petitioner did not meet the constitutional one-year residency requirement. Petitioner thus amended her COC, changing “seven” months to “since childhood.” The provincial election supervisor refused to admit the amended COC for the reason that it was filed out of time. Petitioner, thus, filed her amended COC with COMELEC in division.

The COMELEC Second Division found the petition for disqualification meritorious and struck off the amended as well as original COCs. In ruling thus, COMELEC in division found that when petitioner chose to stay in Ilocos and later on in Manila, coupled with her intention to stay there by registering as a voter there and expressly declaring that she is a resident of that place, she is deemed to have abandoned Tacloban City, where she spent her childhood and school days, as her place of domicile. The COMELEC en banc affirmed this ruling.

During the pendency of the disqualification case, petitioner won in the election. But the COMELEC suspended her proclamation.  

ISSUES:

1. Whether or not petitioner was a resident, for election purposes, of the First District of Leyte for a period of one year at the time of the May 9, 1995 elections.

2. Whether or not the COMELEC properly exercised its jurisdiction in disqualifying petitioner outside the period mandated by the Omnibus Election Code for disqualification cases under Article 78 of the said Code.

3) Whether or not the House of Representatives Electoral Tribunal assumed exclusive jurisdiction over the question of petitioner's qualifications after the May 8, 1995 elections.

HELD:

Domicile vs. Residence

In Ong vs. Republic, this court took the concept of domicile to mean an individual's "permanent home", "a place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent." Based on the foregoing, domicile includes the twin elements of "the fact of residing or physical presence in a fixed place" and animus manendi, or the intention of returning there permanently.

Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a given area, community or country. The essential distinction between residence and domicile in law is that residence involves the intent to leave when the purpose for which the resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a person's intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established it is residence. It is thus, quite perfectly normal for an individual to have different residences in various places. However, a person can only have a single domicile, unless, for various reasons, he successfully abandons his domicile in favor of another domicile of choice. In Uytengsu vs. Republic, we laid this distinction quite clearly:

There is a difference between domicile and residence. "Residence" is used to indicate a place of abode, whether permanent or temporary; "domicile" denotes a fixed permanent residence to which, when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for the same purpose at any time, but he may have numerous places of residence. His place of residence is generally his place of domicile, but it is not by any means necessarily so since no length of residence without intention of remaining will constitute domicile.

1. YES. Imelda Romualdez-Marcos was a resident of the First District of Leyte for election purposes, and therefore possessed the necessary residence qualifications to run in Leyte as a candidate for a seat in the House of Representatives for the following reasons:

a. Minor follows the domicile of his parents. As domicile, once acquired is retained until a new one is gained, it follows that in spite of the fact of petitioner's being born in Manila, Tacloban, Leyte was her domicile of origin by operation of law. This domicile was established when her father brought his family back to Leyte.

b. Domicile of origin is not easily lost. To successfully effect a change of domicile, one must demonstrate:

      1. An actual removal or an actual change of domicile;

2. A bona fide intention of abandoning the former place of residence and establishing a new one; and

 3. Acts which correspond with the purpose.

In the absence of clear and positive proof based on these criteria, the residence of origin should be deemed to continue. Only with evidence showing concurrence of all three requirements can the presumption of continuity or residence be rebutted, for a change of residence requires an actual and deliberate abandonment, and one cannot have two legal residences at the same time.

Petitioner held various residences for different purposes during the last four decades. None of these purposes unequivocally point to an intention to abandon her domicile of origin in Tacloban, Leyte.

c. It cannot be correctly argued that petitioner lost her domicile of origin by operation of law as a result of her marriage to the late President Ferdinand E. Marcos in 1952.

[A wife does not automatically gain the husband’s domicile.] What petitioner gained upon marriage was actual residence. She did not lose her domicile of origin. The term residence may mean one thing in civil law (or under the Civil Code) and quite another thing in political law. What stands clear is that insofar as the Civil Code is concerned-affecting the rights and obligations of husband and wife — the term residence should only be interpreted to mean "actual residence." The inescapable conclusion derived from this unambiguous civil law delineation therefore, is that when petitioner married the former President in 1954, she kept her domicile of origin and merely gained a new home, not a domicilium necessarium.

d. Even assuming for the sake of argument that petitioner gained a new "domicile" after her marriage and only acquired a right to choose a new one after her husband died, petitioner's acts following her return to the country clearly indicate that she not only impliedly but expressly chose her domicile of origin (assuming this was lost by operation of law) as her domicile. This "choice" was unequivocally expressed in her letters to the Chairman of the PCGG when petitioner sought the PCGG's permission to "rehabilitate (our) ancestral house in Tacloban and Farm in Olot, Leyte. . . to make them livable for the Marcos family to have a home in our homeland." Furthermore, petitioner obtained her residence certificate in 1992 in Tacloban, Leyte, while living in her brother's house, an act which supports the domiciliary intention clearly manifested in her letters to the PCGG Chairman.

Effect of Disqualification Case

2. It is a settled doctrine that a statute requiring rendition of judgment within a specified time is generally construed to be merely directory, "so that non-compliance with them does not invalidate the judgment on the theory that if the statute had intended such result it would have clearly indicated it." The difference between a mandatory and a directory provision is often made on grounds of necessity.

In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78 of B.P. 881, it is evident that the respondent Commission does not lose jurisdiction to hear and decide a pending disqualification case under Section 78 of B.P. 881 even after the elections.

Section 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.

HRET Jurisdiction

3. HRET's jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of members of Congress begins only after a candidate has become a member of the House of Representatives. Petitioner not being a member of the House of Representatives, it is obvious that the HRET at this point has no jurisdiction over the question.

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Guerrero vs Comelec

GUERRERO v. COMELEC

G.R. No. 137004, July 26, 2000

FACTS:

Guillermo Ruiz file a petition to disqualify respondent Rodolfo Fariñas as a candidate for the position of Congressman in the First District of Ilocos Norte. Ruiz alleged that Fariñas had been campaigning as a candidate for Congressman in the May 11, 1998 polls, despite his failure to file a certificate of candidacy for said office. On May 8, 1998 or 3 days before the election, Farinas filed his certificate of candidacy substituting candidate Chevylle Farinas who withdrew on April 3, 1998. On May 10, 1998, the COMELEC dismissed the petition of Ruiz.

After the election, Farinas was duly proclaimed winner. Ruiz filed a motion for reconsideration, contending that Farinas could not validly substitute for Chevylle Farinas, since the latter was not the official candidate of LAMMP, but was an independent candidate. On June 3, 1988, Farinas took his oath of office as a member of the House of Representatives. Comelec dismissed the MR on the ground that the matter is now within the exclusive jurisdiction of the House of Representative Electoral Tribunal.

ISSUES:

Did the COMELEC commit grave abuse of discretion in holding that the determination of the validity of the certificate of candidacy of respondent Fariñas is already within the exclusive jurisdiction of the Electoral Tribunal of the House of Representatives?

HELD:

There is no grave abuse of discretion on the part of the COMELEC when it held that its jurisdiction over the case had ceased with the assumption of office of respondent Farinas as Representative for the first district of Ilocos Norte. While COMELEC is vested with the power to declare valid or invalid a certificate of candidacy, its refusal to exercise that power following the proclamation and assumption of the position by Farinas is a recognition of the jurisdictional boundaries separating the COMELEC and the HRET. Under Art. VI, Sec. 17 of the Constitution, the HRET has sole and exclusive jurisdiction over all contests relative to the election, returns and qualifications of members of the House of Representatives. Thus, once a winning candidate has been proclaimed, taken his oath, and assumed office as a member of the House of Representatives, COMELEC’s jurisdiction over election contests relating to his election, returns and qualifications ends, and the HRET’s own jurisdiction begins. Thus, the COMELEC’s decision to discontinue exercising jurisdiction over the case is justifiable, in deference to the HRET’s own jurisdiction and functions.

In an electoral contest where the validity of the proclamation of a winning candidate who has taken his oath of office and assumed his post as Congressman is raised, that issue is best addressed to the HRET. The reason for this ruling is self-evident, for it avoids duplicity of proceedings and a clash of jurisdiction between constitutional bodies, with due regard to the people’s mandate.

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Disease as Ground for Termination

Article 284. Disease as ground for termination. An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as the health of his co-employees: Provided, That he is paid separation pay equivalent to at least one month salary or to one-half month salary for every year of service, whichever is greater, a fraction of at least six months being considered as one whole year.

What are the requisites for the ground of disease?

The following requisites must be complied with before termination of employment due to disease may be justified:

1. The employee is suffering from a disease;

2. His continued employment is either:

a. prohibited by law; or

b. prejudicial to his health; or

c. prejudicial to the health of his co-employees;

3. There is a certification by a competent public health authority that the disease is of such nature or at such stage that it cannot be cured within a period of six (6) months even with proper medical treatment; (Sec. 8, Rule I, Book VI, of the Omnibus Rules Implementing the Labor Code)

4. Notice of termination based on this ground should be served to the employee; and

5. Separation pay shall be paid to him in the amount equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year.

Is a medical certificate issued by company doctor acceptable?

A medical certificate issued by a company’s own physician is not an acceptable certificate for purposes of terminating an employment based on Article 284, it having been issued not by a “competent public health authority,” the person referred to in the law. (Cebu Royal Plant [San Miguel Corporation] vs. Hon. Deputy Minister of Labor, G. R. No. 58639, Aug. 12, 1987, 153 SCRA 38 [1987]).

What is meant by “competent public health authority”?

“Competent public health authority” refers to a government doctor whose medical specialization pertains to the disease being suffered by the employee. For instance, an employee who is sick of tuberculosis should consult a government-employed pulmonologist who is competent to make an opinion thereon. If the employee has cardiac symptoms, the competent physician in this case would be a cardiologist.

Medical certificate, an indispensable requisite.

In the absence of the required certification by a competent public health authority, the Supreme Court has consistently ruled against the validity of the employee’s dismissal. (Cruz vs. NLRC, G. R. No. 116384, Feb. 7, 2000).

In the 2003 case of Sy vs. CA, [G. R. No. 142293, February 27, 2003], the High Court reiterated its earlier ruling in Triple Eight Integrated Services, Inc. vs. NLRC, [299 SCRA 608, 614 1998], that the requirement for a medical certificate under Article 284 cannot be dispensed with; otherwise, it would sanction the unilateral and arbitrary determination by the employer of the gravity or extent of the employee’s illness and thus defeat the public policy in the protection of labor.

In the 2001 case of Cathay Pacific Airways, Ltd. vs. NLRC, [G. R. No. 141702-03, August 2, 2001], the dismissal of the employee based on a finding that she was suffering from asthma was declared illegal because of the absence of a certification by a competent public health authority that the disease is of such nature or at such a stage that it cannot be cured within a period of six (6) months even with proper medical treatment, a requirement under Section 8, Rule I, Book VI, of the Rules to Implement the Labor Code. Here, the employee was dismissed based only on the recommendation of its company doctors who concluded that she was afflicted with asthma. It did not likewise show proof that the employee’s asthma could not be cured in six (6) months even with proper medical treatment. On the contrary, when she returned to the company clinic five (5) days after her initial examination, the company doctor diagnosed her condition to have vastly improved.

In General Textile, Inc. vs. NLRC, [G. R. No. 102969, April 4, 1995], the termination of the employee due to PTB sickness was declared not justified in the absence of medical certificate issued by a competent public health authority that the disease is of such nature or at such a stage that it cannot be cured within a period of six (6) months even with proper medical treatment.

Medical certificate as evidence of illness

Medical certificates presented by an employee to prove (a) his illness, the nature and the duration of the procedures performed by the dentist on him; and (b) the period during which he was incapacitated to work are admissible in evidence and have probative weight even if not notarized. It is sufficient that the physician and the dentist who examined the employee, aside from their respective letterheads, had written their respective license numbers below their names and signatures, hence, they bear all the earmarks of regularity in their issuance and are entitled to full probative weight. Common sense dictates that an ordinary worker does not need to have these medical certificates to be notarized for proper presentation to his company to prove his ailment. It has been said that verification of documents is not necessary in order that the said documents could be considered as substantial evidence. (Union Motor Corporation vs. NLRC, G. R. No. 159738, Dec. 9, 2004)

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Medical certificate issued by Labor Attache and Ministry of Public Health of Kuwait, not sufficient.

In the 2001 case of ATCI Overseas Corporation vs. CA, [G. R. No. 143949, August 9, 2001], involving two (2) overseas Filipino workers who were recruited by the Ministry of Public Health of Kuwait to work as dental hygienists in that country for a period of 2 years but who were terminated after working for only two months based on alleged tuberculosis and heart disease, the Supreme Court, in declaring the termination as illegal, ruled that there is nothing in the records to show that petitioner complied with Sec. 8, Rule I, Book VI of the Rules to Implement the Labor Code before private respondent-doctors were dismissed. In the proceedings before the POEA, petitioner did not present any certification whatsoever. It was only when the case was appealed to the NLRC that petitioner belatedly introduced in evidence a letter from the Ministry stating that private respondents were found to be positive for tuberculosis and heart disease. In addition, petitioner presented a certification issued by the Philippine labor attache attesting to the fact that private respondents were subjected to a medical examination after their arrival in Kuwait and were found to be unfit for employment due to lung defects. The letter from the Ministry and the certification by the Philippine labor attache fall short of the demands of the Omnibus Rules. First of all, there is no finding that the disease allegedly afflicting private respondents is of such nature or at such a stage that it cannot be cured within a period of six (6) months with proper medical treatment. Secondly, even assuming that the letter from the Ministry complied with the Omnibus Rules, petitioner has not proven that the same was presented to private respondents prior to their termination. Rather, the letter appears to have been an afterthought, a belated, yet grossly unsuccessful attempt at compliance with Philippine laws, produced by petitioner after an adverse judgment was rendered against it by the POEA. Clearly, Sec. 8, Rule I, Book VI, of the Omnibus Rules was not complied with, thus making private respondents’ dismissal illegal.

Who should procure the certificate?

It devolves upon the employer the obligation to obtain a certificate from a competent public authority that the employee’s disease is at such stage or of such nature that it cannot be cured within six (6) months even with prior medical treatment. It is the employer, and not the employee, who has the burden of proof to justify that the termination was supported by said certificate. Clearly, it is only where there is such prior certification that the employee could be validly terminated from his job. (Tan vs. NLRC, G. R. No. 116807, April 14, 1997, 271 SCRA 216; See also Phil. Employ Services and Resources, Inc. vs. Paramio, G. R. No. 144786, April 15, 2004; Sy vs. CA, supra).

Who has the burden of proving the existence of a medical certificate?

The burden of proving the existence of such a medical certificate required under the law is upon the employer, not the employee. (ATCI Overseas Corporation vs. CA, G. R. No. 143949, Aug. 9, 2001; Tan vs. NLRC, 271 SCRA 216 [1997]; Cebu Royal Plant vs. Deputy Minister of Labor, supra).

Employee dismissed without the medical certificate is entitled to moral and exemplary damages.

In the same 2001 case of Cathay Pacific Airways [supra], because the employer summarily dismissed the employee from the service based only on the recommendation of its medical officers, in effect, failing to observe the provision of the Labor Code which requires a certification by a competent public health authority, it was held that the award of moral and exemplary damages to the employee should be affirmed. Notably, the decision to dismiss the employee was reached after a single examination only. The employer’s medical officers recommended the employee’s dismissal even after having diagnosed her condition to have vastly improved. It did not make even a token offer for the employee to take a leave of absence as what it provided in its Contract of Service. The employer is presumed to know the law and the stipulation in its Contract of Service with the employee.

Notice to employee and the DOLE regarding termination due to disease, necessary.

Although Article 284 does not require the service of notice to the employee, however, it is necessary under the following circumstances, if only to document the procedure taken by the employer prior to terminating the employment:

1. Notice to the sick employee to submit himself for medical examination by a competent public health authority to determine not only his fitness for work but, more importantly, for the purpose of having his sickness certified that it is of such nature or at such a stage that it can be cured within a period of six (6) months with proper medical treatment; and

2. Notice of termination in case the certification of the competent public health authority is to the effect that the sickness is of such nature or at such a stage that it cannot be cured within a period of six (6) months even with proper medical treatment.

The second notice above should be given not only to the employee but also to the Department of Labor and Employment, in accordance with the ruling in the case of Agabon vs. NLRC, [G.R. No. 158693, November 17, 2004], where the Supreme Court opined that if the dismissal is based on authorized causes under Articles 283 and 284, the employer must give the employee and the Department of Labor and Employment written notices thirty (30) days prior to the effectivity of his separation.

Is hearing required in case of termination due to disease?

Being an authorized cause, as distinguished from just cause, hearing is not necessary to be conducted by the employer prior to the termination of employment of the sick employee.

Separation pay in case of lawful dismissal based on disease.

The separation pay of an employee terminated on the ground of disease is equivalent to at least one (1) month salary or to one-half (½) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year. (Article 284, Labor Code; Baby Bus, Inc. vs. Minister of Labor, G. R. No. 54223, Feb. 26, 1988).

Disability distinguished from Disease

Disability should not be confused with disease. Disability itself, even if permanent, is not a ground for termination. The Magna Carta for Disabled Persons prohibits the termination of a disabled employee based on disability alone. This constitutes act of discrimination, a criminal offense for which fine and/or imprisonment may be imposed. (Magna Carta for Disabled Persons)

Right to reinstatement if disease is curable with six months

If the disease or ailment can be cured within six months, the employer shall not terminate the employee but shall ask the employee to take a leave of absence. The employee is entitled to be reinstated to his former position immediately upon the restoration of his normal health. (Sec. 8, Rule I, Book VI, of the Omnibus Rules Implementing the Labor Code)

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Voluntary Resignation

ARTICLE 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.

What are the two kinds of termination by an employee?

     1.  termination by employee without just cause (voluntary resignation)

     2.  termination by employee with just cause

What is voluntary resignation?

Resignation is defined as the voluntary act of an employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service and he has no other choice but to disassociate himself from his employment. (Virgen Shipping Corp. vs. Barraquio, G.R. No. 178127, April 16, 2009 citing Valdez vs. NLRC)

Resignation is a formal pronouncement of relinquishment of an office.  It must be made with the intention of relinquishing the office accompanied by an act of relinquishment. (Valdez vs. NLRC, G.R. No. 125028.  February 9, 1998)

What are the requisites for termination of employment by employee without just cause?

In case of termination without just cause, the following requisites must be complied with by the employee:

1. Written notice of the termination (commonly known as resignation letter);

2. Service of such notice to the employer at least one (1) month in advance.

The Labor Code requires the employee to give an advance notice to the employer of his intention to resign. The notice of resignation must be in writing and must be served to the employer at least one month prior to the effective date of his resignation. Resignation notice usually takes the form of a letter (commonly called “resignation letter”) addressed to the employer, expressing the employee’s intention to terminate his employment. It must state the date when resignation is to take effect because of the 30-day notice requirement under the law. It may also contain the reason or justification of the employee for filing his resignation, although legally, this is not important. The employee may resign for whatever reason, or even for no reason at all.

May an employer refuse to accept a resignation?

The law affords the employee the right to resign regardless of whether the company has found an able and competent replacement and whether the operation of the company would be affected provided he serves a written notice on the employer at least one (1) month in advance. (Phimco Industries vs NLRC, G.R. No. 118041, June 11, 1997)

May an employee be allowed a shorter period to tender a resignation notice?

The rule of requiring an employee to stay or complete the 30-day period prior to the effectivity of his resignation becomes discretionary on the part of management as an employee who intends to resign may be allowed a shorter period before his resignation becomes effective. (Phimco Industries vs NLRC)

What is the effect of an employee’s failure to tender resignation notice?

If the employee fails to give the employer one month advance notice of his intention to resign, he may be held liable for damages. (Art. 285, Labor Code)

What are the instances when notice of resignation is not required?

The employee may resign even without serving any notice on the employer for any of the following reasons:

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.

Resignation under any of the instance enumerated above is also called “termination by employee with just cause.”

Is an employee who voluntarily resigns from his work entitled to separation pay?

The general rule is that an employee who voluntarily resigns from his work is not entitled to separation pay. There is no provision in the Labor Code which grants separation pay to employees who voluntarily resign.

Separation pay as a rule is paid only in those instances where the severance of employment is due to factors beyond the control of the employee. Thus, in case of retrenchment to prevent losses where the employee is forced to depart from the company due to no fault on his part, separation pay is required by law to be paid to the dismissed employee. The case is totally different in case of voluntary resignation where severance of employment is due to employee’s own initiative. The law does not oblige the employer to give separation pay if the initiative to terminate employment comes from employee himself.

Under the Code, separation pay may be awarded only in cases when the termination of employment is due to: (a) installation of labor saving devices, (b) redundancy, (c) retrenchment, (d) closing or cessation of business operations, (e) disease of an employee and his continued employment is prejudicial to himself or his co-employees, or (f) when an employee is illegally dismissed but reinstatement is no longer feasible. (Hinatuan Mining Corporation, et al. vs. NLRC, et al., G.R. No. 117394, February 21, 1997)

What are the exceptions?

By way of exceptions, there are at least two instances where an employee who voluntarily resign is entitled to receive separation pay, as follows:

1. When payment of separation pay is stipulated in the employment contract or Collective Bargaining Agreement (CBA);

2. When it is sanctioned by established employer practice or policy. (Hanford Philippines vs. Shirley Joseph, G.R. No. 158251, March 31, 2005; Hinatuan Mining Corporation, et al. vs. NLRC, et al.)

Special case

   3.  When an employer who agrees to expend such benefit as an incident of the     resignation.

● In Alfaro vs. CA, G.R. No. 140812, August 28, 2001 and J Marketing Corp. vs. Taran, G.R. No. 163924, June 28, 2009, the Court ordered the payment of separation pay despite holding that the employee voluntarily resign from service, and although such payment was not mandated under the CBA or employment contract. In both of cases, the employer agreed to give separation pay to the employee as an incident of the latter’s resignation, but later on renege in the performance of such commitment. The Court held that such practice should not be countenanced:

“Generally, separation pay need not be paid to an employee who voluntarily resigns. However, an employer who agrees to expend such benefit as an incident of the resignation should not be allowed to renege in the performance of such commitment.”

Acceptance of resignation, necessary.

Acceptance of the resignation tendered by an employee is necessary to make the resignation effective. (Shie Jie Corp. vs. National Federation of Labor, G. R. No. 153148, July 15, 2005).

Does the acceptance of a resignation require the conformity of the resigning employee?

No. The acceptance of a resignation does not require the conformity of the resigning employee. Such conformity only indicates that the employee was forced to resign for which reason her “conformity” was obtained to make it appear as voluntary or legal. (Rase vs. NLRC, G. R. No. 110637, Oct. 07, 1994)

What is the effect of resignation?

Once resignation is accepted, the employee no longer has any right to the job. It goes without saying, therefore, that resignation terminates the employer-employee relationship. (Philippine National Construction Corporation vs. NLRC, G. R. No. 120961, Oct. 2, 1997, 280 SCRA 116).

May an employee withdraw his resignation?

A resignation tendered by an employee, irrespective of whether it was made revocable or irrevocable, may still be withdrawn anytime before its acceptance by the employer. Once accepted, however, withdrawal thereof can no longer be made by the resigning employee, except with the consent or agreement of the employer. (Custodio vs. Ministry of Labor and Employment, G. R. No. 643174, July 19, 1990).

The acceptance of the withdrawal of resignation is the employer’s sole prerogative. The employee who resigned cannot unilaterally withdraw his resignation. Once accepted, the employee no longer has any right to the job. If the employee later changes his mind, he must ask for approval of the withdrawal of his resignation from his employer, as if he were re-applying for the job. It will then be up to the employer to determine whether or not his services would be continued. If the employer accepts said withdrawal, the employee retains the job. If the employer does not, the employee cannot claim illegal dismissal for the employer has the right to determine who his employees will be. To say that the employee who has resigned is illegally dismissed is to encroach upon the right of the employers to hire persons who will be of service to them. (Intertrod Maritime, Inc. vs. NLRC, G. R. No. 81087, June 19, 1991, 198 SCRA 318).

Re-employment after acceptance of resignation.

A resigned employee who desires to take his job back has to reapply therefor, and he shall have the status of a stranger who cannot unilaterally demand an appointment. He cannot arrogate unto himself the same position which he earlier decided to leave. To allow him to do so would be to deprive the employer of his basic right to choose whom to employ. It has been held that an employer is free to regulate, according to his own discretion and judgment, all aspects of employment including hiring. The law, in protecting the rights of the laborer, impels neither the oppression nor self-destruction of the employer. (Philippines Today, Inc. vs. NLRC, supra).

Assumption of new job by employee prior to employer’s acceptance of resignation, effect.

The assumption of a new job by an employee prior to receiving his employer’s acceptance of his resignation is clearly inconsistent with any desire to remain in employment. His resignation is, therefore, deemed effective. (Philippines Today, Inc. vs. NLRC, G. R. No. 112965, Jan. 30, 1997, 267 SCRA 202).

Employment elsewhere during the pendency of case, effect.

In the 2005 case of Great Southern Maritime Services Corporation vs. Acuña, (G. R. No. 140189, Feb. 28, 2005), the employer’s submission that respondent-employees voluntarily resigned because of their desire to seek employment elsewhere, as accentuated by the concurrent fact that two of the respondents already have jobs in Singapore, was held as an unreasonable inference. The fact that these two have already found employment elsewhere should not be weighed against their favor. It should be expected that they would seek other means of income to tide them over during the time that the legality of their termination is under litigation. They should not be faulted for seeking employment elsewhere for their economic survival.

Resignation and execution of quitclaim, effect.

Once an employee resigns and executes a quitclaim in favor of the employer, he is thereby estopped from filing any further money claims against the employer arising from his employment. Such money claims may be given due course only when the voluntariness of the execution of the quitclaim or release is put in issue, or when it is established that there is an unwritten agreement between the employer and employee which would entitle the employee to other remuneration or benefits upon his or her resignation. (Philippine National Construction Corporation vs. NLRC, G. R. No. 120961, Oct. 2, 1997).

Resignation letter written and prepared by employer; effect.

According to the 2000 case of A’ Prime Security Services, Inc. vs. NLRC, [G. R. No. 107320, January 19, 2000], no weight should be given to the employee’s resignation letter which appears to have been written and submitted at the instance of the petitioner-employer. Its form is of the company’s and its wordings are more of a waiver and quitclaim. More so when the supposed resignation was not acknowledged before a notary public.

In the 2005 case of Mobile Protective & Detective Agency vs. Ompad, [G. R. No. 159195, May 9, 2005], the High Court agreed with the NLRC and the CA that the two resignation letters at issue are dubious, to say the least. A bare reading of their content would reveal that they are in the nature of a quitclaim, waiver or release. They were written in a language obviously not of respondent's and “lopsidedly worded” to free the employer from liabilities. The CA’s ruling was upheld thus: “[w]hen the first resignation letter was a pro forma one, entirely drafted by the petitioner Agency for the private respondent to merely affix his signature, and the second one entirely copied by the private respondent with his own hand from the first resignation letter, voluntariness is not attendant.”

Resignation letters similarly worded and of same tenor, effect.

In the 2005 case of Great Southern Maritime Services Corporation vs. Acuña, [G. R. No. 140189, Feb. 28, 2005], it was held that resignation letters which were all prepared by the employer and were substantially similarly worded and of the same tenor would reveal the true nature of these documents - they are waivers or quitclaims which are not sufficient to show valid separation from work or bar the employees from assailing their termination. They also constitute evidence of forced resignation or that they were summarily dismissed without just cause.

Voluntariness of resignation may be inferred from the language thereof.

● In the 2005 case of Willi Hahn Enterprises, vs. Maghuyop, [G. R. No. 160348, December 17, 2004], the employee’s resignation letter reads:

“July 22, 1998

“Dear Mr. and Mrs. Hahn

“I am respectfully submitting my resignation from Willi Hahn Enterprises effective today, July 22, 1998. I hope that in some way, I was of some help to you and your family.

“Thank you for your assistance during the past.

“Very truly yours,

“LILIA MAGHUYOP”

In holding that the afore-quoted letter was voluntarily tendered by the employee, the Supreme Court declared:

“The letter is simple, candid and direct to the point. We find no merit in respondent’s claim that being a mere clerk, she did not realize the consequences of her resignation. Although she started as nanny to the son of petitioner Willi Hahn, she has risen to being the manager and officer-in-charge of the Willi Hahn Enterprises in SM Cebu branch.

● In Callanta vs. National Labor Relations Commission, [G.R. No. 105083, 20 August 1993, 225 SCRA 526], a national-promoter salesman of Distilleria Limtuaco Co., Inc., assigned in Iligan City, Lanao del Sur and Lanao Del Norte, resigned after he was found to have a shortage of P49,005.49 in a ‘spot audit’ conducted by the company. He later filed an illegal dismissal case claiming that his consent to the resignation was vitiated as he signed the company’s ready-made resignation letter because the latter threatened to file an estafa case against him. In rejecting his contention, the Court ruled that a salesman-promoter could not have been confused, coerced or intimidated into signing the resignation letter. Instead of defending himself against the adverse audit report, he voluntarily signed the resignation letter though there is no urgency in signing the same. The Court concluded that he affixed his signature in the said letter of his own free will with full knowledge of the consequences thereof.”

Act of employer in giving the employee the choice between resignation or investigation, not illegal.

In a case where the employer asked the employee to submit her resignation letter or, if not, to submit her written explanation to the complaints against her, and consequently, the employee immediately filed a complaint for illegal dismissal thereby pre-empting an investigation by the employer on the matter, the Supreme Court ruled that the employer did not violate any law when it gave the employee the option to resign because there is nothing illegal with the practice of allowing an employee to resign instead of being separated for just cause, so as not to smear her employment record. (Belaunzaran vs. NLRC, G. R. No. 120038, Dec. 23, 1996).

Failure of employer to criminally prosecute employee who resigned, effect.

In Willi Hahn Enterprises, vs. Maghuyop, [G. R. No. 160348, Dec. 17, 2004)], it was held that the failure of the employer to pursue the termination proceedings against an employee who resigned and to make her pay for the shortage incurred did not cast doubt on the voluntary nature of her 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 her malfeasance. Under the circumstances, the failure of petitioner to file action against the employee should be considered as an act of compassion for one who used to be a trusted employee and a close member of the household.

Employee who alleges that she was coerced into resigning should prove such claim.

In the same case of Willi Hahn [supra], the resigning employee’s unsubstantiated and self-serving claim that she was coerced into signing the resignation letter was not given any credence. It is a basic rule in evidence that the burden of proof is on the part of the party who makes the allegations. She failed to discharge this burden. Moreover, the Court of Appeals’ finding that respondent had no motive to resign because the charges of dishonesty were not fully substantiated has no basis. Had the separation of respondent been for dismissal due to loss of trust and confidence, substantial evidence of the shortages and non-remittances would have been indispensable. Such, is not the case here considering her voluntary resignation.

Filing of complaint negates resignation; exception.

● The general rule is that the filing of a complaint for illegal dismissal is inconsistent with resignation. (Cheniver Deco Print Technics Corporation vs. NLRC, G. R. No. 122876, Feb. 17, 2000).

Citing Molave Tours Corporation vs. NLRC, [G.R. No. 112909, November 24, 1995, 250 SCRA 325, 330], the Supreme Court in Shie Jie Corp. vs. National Federation of Labor, [G. R. No. 153148, July 15, 2005], held:

“By vigorously pursuing the litigation of his action against petitioner, private respondent clearly manifested that he has no intention of relinquishing his employment, which act is wholly incompatible to petitioner’s assertion that he voluntarily resigned.”

●  In Great Southern Maritime Services Corporation vs. Acuña, [G. R. No. 140189, Feb. 28, 2005], it was ruled that the execution of the alleged “resignation letters cum release and quitclaim” to support the employer’s claim that respondents voluntarily resigned is unavailing as the filing of the complaint for illegal dismissal is inconsistent with resignation.

It would have been illogical for the employee to resign and then file a complaint for illegal dismissal. (Emco Plywood Corporation vs. Abelgas, G. R. No. 148532, April 14, 2004).

Hence, the finding that the employee's resignation is involuntary is further strengthened by the fact that he filed an illegal dismissal case the day after the alleged tender of resignation. (Mobile Protective & Detective Agency vs. Ompad, G. R. No. 159195, May 9, 2005).

However, this rule does not apply to a case where the filing of an illegal dismissal case by the employee who resigned was evidently a mere afterthought. It was filed not because she wanted to return to work but to claim separation pay and backwages. (Willi Hahn Enterprises, vs. Maghuyop, supra).

Expression of gratitude to employer, effect.

A resignation letter which contains words of gratitude and appreciation to the employer can hardly come from employees who are forced to resign. (St. Michael Academy vs. NLRC, G. R. No. 119512, July 13, 1998, 292 SCRA 478).

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