Paulino Ungos III

Lawyer | Law Professor | Author

Tag: transfer

  • A Prejudicial Transfer

    The employer, a business process outsourcing (BPO) company, hired Mario as one of its technical support representatives and assigned him to handle a client account.

    On October 30, 2009, the employer informed Mario that he would be transferred to a different client account upon successfully passing the training, assessment and examination and that his refusal to take the examinations would result in the termination of his services on the ground of redundancy.

    Mario refused to undergo training and take the examinations under the belief that he was entitled to security of tenure.

    Thereafter, Mario received a memorandum informing him that those who declined to comply with the transfer directive were no longer required to log in their system since their respective team leaders will take care of their attendance instead until the redundancy offer is finalized.

    On November 17, 2009, Mario received a notice dated November 16, 2009 informing him of his dismissal due to redundancy effective December 16, 2009.

    Through his counsel, Mario sent a demand letter to his employer asserting that no redundancy in the company occurred considering that it was continuously hiring other technical support representatives. Mario further asserted that as a regular employee, he should no longer be required to take another examination to prove his qualifications.

    On January 7, 2010, Mario filed a complaint for illegal dismissal against the employer before the arbitration branch of the National Labor Relations Commission in Bacolod City.

    The employer argued that the decrease in volume of calls for the account to which Mario was originally assigned led to an excess number of technical support representatives working on the same. It stated that instead of immediately dismissing its employees, it offered to transfer Mario and other technical support representatives to another account, using the following criteria:

    • first call resolution scores for the last three preceding months; and
    • existence of remediation cases.

    The employer pointed out that using the foregoing criteria, Mario was one of the “bottom performers.” It then explained that transferring the said employees to another client account was without any demotion in rank or diminution in pay as long as they successfully passed the standard product training and assessment. It added that undergoing training and assessment were necessary due to the differences between the two client accounts. It posited that it was forced to dismiss Mario on the ground of redundancy since he refused to transfer and go through the training and examination. Finally, it claimed it sent a notice of termination to the Department of Labor and Employment (DOLE).

    The Office of the Labor and the National Labor Relations Commission ruled that the dismissal of Mario from employment on the ground of redundancy was valid.

    The Court of Appeals ruled that Mario was illegally dismissed from employment in view of the employer’s failure to show that his position was redundant.

    The employer went to the Supreme Court.

    Was Mario validly dismissed on the ground of redundancy?

    The Supreme Court ruled in the negative.

    The Court stated that in termination cases, the employer bears the burden of proving that the employee’s dismissal was for a valid and authorized cause. Consequently, an employer’s failure to prove that the dismissal was valid renders the dismissal illegal.

    Here, the Court ruled that Mario was illegally dismissed from employment since the employer’s evidence was found to be insufficient to support a claim of valid redundancy.

    The Court reiterated established principles by stating that redundancy exists when an employee’s services are in excess of what is reasonably demanded by the actual requirements of the business. To successfully invoke a valid dismissal due to redundancy, there must be:

    • a written notice served on both the employees and the DOLE at least one month prior to the intended date of termination of employment;
    • payment of separation pay equivalent to at least one month pay for every year of service;
    • good faith in abolishing the redundant positions; and
    • fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished.

    Moreover, the company must provide substantial proof that the services of the employees are in excess of what is required of the company.

    The Court noted the employer’s assertion that its business was slowing down and that it would require fewer representatives beginning November 2009. The Court also looked into the following documents submitted by the employer to support its claim of redundancy:

    • Affidavit of the human capital delivery site manager;
    • Mario’s Employment Contract;
    • FCR scores of the technical support representatives considered to be bottom performers;
    • FAQs for Transition Plans;
    • Attendance sheet for meeting with representatives dated October 30, 2009;
    • Transfer Agreement;
    • Recruitment Flowchart;
    • Comparison of the duties of representatives assigned to the different clients;
    • Notice of Termination addressed to Mario; and
    • Termination Report to DOLE.

    However, the Court was not convinced of the alleged decline in the employer’s business and the expected decrease in volume of calls. This was because other than the bare assertions of the human capital delivery site manager, the Court found no other evidence proving the business slow down or the alleged low volume of calls. According to the Court, the affidavit of the human capital delivery site manager did not substantiate the claim of slow down or decreased call volume and is mainly self-serving. The Court explained that the employer should have presented any document proving the decline in volume of calls for the past months, or affidavits of client officers who determined that business was slowing down and the basis thereof. Although other documents were submitted, the Court found that these hardly proved the fact of redundancy.

    The Court was also not convinced of the employer’s claim of good faith when Mario was offered a transfer. Under jurisprudence, for a transfer not to be considered a constructive dismissal, the employer must be able to show that such transfer is not unreasonable, inconvenient, or prejudicial to the employee; nor does it involve a demotion in rank or a diminution of his salaries, privileges and other benefits. Failure of the employer to overcome this burden of proof, the employee’s demotion shall no doubt be tantamount to unlawful constructive dismissal.

    In the present case, the Transfer Agreement was found to be prejudicial to him. According to the Court, by requiring Mario to pass additional trainings and examination as a condition to retain his employment under the pain of dismissal, the employer disregarded his right to security of tenure. For the Court, the employer’s failure to prove redundancy, coupled with the imposition of a prejudicial condition to retain employment, rendered the offer of transfer invalid.

    Having been illegally dismissed from employment, Mario was awarded separation pay and backwages.

    Further reading:

    • Teletech Customer Care Management Philippines, Inc. v. Gerona, Jr., G.R. No. 219166, November 10, 2021.

  • We Laid the Employee Off to Re-assess His Qualifications

    On August 13, 2012, Jayraldin was hired by The Results Company, Inc. (TRCI), a business process outsourcing company. Jayraldin started as a sales representative and was promoted several times until he became a team leader in 2014. As a team leader, Jayraldin had the duty of supervising TRCI’s agents.

    On December 30, 2014, Jayraldin received an email from TRCI, informing him of infractions allegedly committed by Ruby, an agent under his supervision. Allegedly, based on quality call monitoring, Ruby incorrectly processed a customer’s order and failed to fully apprise the customer of TRCI products.

    TRCI’s Operations Manager decided to give Ruby a final written warning. However, Jayraldin, together with TRCI’s program managers, recommended that Ruby only be subjected to coaching.

    Later, Jayraldin was handed a notice stating that he was grossly negligent in the performance of an assigned task and that he willfully disobeyed an order of a superior, when he failed to give Ruby a Notice to Explain and final warning. The same notice placed him under preventive suspension and summoned him to an administrative hearing.

    Jayraldin explained that all program managers recommended that Ruby be provided only with coaching and that he had fulfilled his duty to issue her a Notice to Explain.

    After administrative proceedings, Jayraldin was admonished with a warning that a similar violation of TRCI’s Code of Discipline might lead to his dismissal. Jayraldin was also placed on temporary lay-off. Specifically, he was subjected to re-profiling until he was ready for re-assignment to another account. During the lay-off, Jayraldin was not to receive any compensation.

    Jayraldin thus filed a complaint for constructive dismissal against TRCI.

    TRCI contended that it only exercised its management prerogative. According to TRCI, it temporarily laid Jayraldin off so that it could assess his qualifications and re-assign him to other accounts, if needed.

    Was Jayraldin constructively dismissed from employment?

    The Supreme Court found that Jayraldin was constructively dismissed from employment.

    The Court stated that constructive dismissal exists 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.1Morales v. Harbour Centre Port Terminal, Inc., G.R. No. 174208, January 25, 2012.

    With regard to transfer of an employee, the Court added that the employer is charged with the burden of proving that its conduct and action are for valid and legitimate grounds, such as genuine business necessity, and that the transfer is not unreasonable, inconvenient or prejudicial to the employee. If the employer cannot overcome this burden of proof, the employee’s transfer shall be tantamount to unlawful constructive dismissal.2Morales v. Harbour Centre Port Terminal, Inc., G.R. No. 174208, January 25, 2012.

    In the present case, while the Court noted that the infraction that led to Jayraldin’s re-profiling was his failure to inform his subordinate of the penalty given by the Operations Manager, it found nothing on record to show that Jayraldin’s infraction was detrimental to the account he handled such that TRCI had no choice but to re-profile him.

    The Court added that Jayraldin was in reality not even transferred to any account. According to the Court, Jayraldin was temporarily laid-off and treated like a new applicant where he would be assessed for other accounts to see if he was qualified. However, the Court found that in the interim, Jayraldin’s economic circumstances became murky. His compensation ceased for a period not to exceed six months as he awaited being accepted into a new account. Worse, he had no assurance whether he would be considered for another account.

    The Court was convinced that TRCI failed to prove any valid and legitimate ground to re-profile Jayraldin as its drastic action was not commensurate to his transgressions. TRCI just made it appear on paper that Jayraldin was still its employee, but in reality he no longer received benefits, was placed in such a situation without any legitimate ground, and was treated like a new applicant. For the Court, this was clearly a dismissal in disguise and tantamount to constructive dismissal.

    On TRCI’s argument that it exercised its management prerogative, the Court did not accept the same, in view of the prejudice against Jayraldin and the lack of legitimate ground to place him on temporary lay-off. According to the Court, although the exercise of management prerogative will ordinarily not be interfered with, it is not absolute and it is limited by law, collective bargaining agreement, and general principles of fair play and justice. Said the Court: “Indeed, having the right should not be confused with the manner in which that right is exercised.”

    As a result of being constructively dismissed, Jayraldin was awarded separation pay, backwages, and attorney’s fees.

    Further reading:

    • Ebus v. The Results Co., Inc., G.R. No. 244388, March 3, 2021.

  • Transfer versus Promotion

    Somido and Cortes were engaged as a Warehouse Checker and Forklift Operator, respectively.

    The employer in this case dismissed these employees for insubordination. It explained that it merely transferred the latter to the Delivery Section to work as a Delivery Supervisor/Coordinator without any change in ranks, status and salaries. Since said employees arrogantly refused to comply with its directive, they were consequently dismissed from employment for valid cause.

    The Supreme Court disagreed.

    The Court examined the positions of Warehouse Checker and Forklift Operator and found that they were classified as rank-and-file employees. On the other hand, the Court found that the job of a Delivery Supervisor/Coordinator required the exercise of discretion and judgment from time to time. Specifically, a Delivery Supervisor/Coordinator

    • assigned teams to man the trucks;
    • oversaw the loading of goods;
    • checked the conditions of the trucks;
    • coordinated with account specialists in the outlets regarding their delivery concerns; and
    • supervised other personnel about their performance in the warehouse.

    A Delivery Supervisor/Coordinator’s duties and responsibilities were apparently not of the same weight as those of a Warehouse Checker or Forklift Operator. Despite the fact that no salary increases were effected, the Court viewed the employees’ assumption of the post of a Delivery Supervisor/Coordinator as a promotion. The employees’ refusal to accept the same was therefore valid.

    An employee is not bound to accept a promotion, which is in the nature of a gift or reward. Refusal to be promoted is a valid exercise of a right. Such exercise cannot be considered in law as insubordination, or willful disobedience of a lawful order of the employer, hence, it cannot be the basis of an employee’s dismissal from service.

    Further reading :

    • Echo 2000 Commercial Corp. v. Obrero Filipino-Echo 2000 Chapter-CLO, G.R. No. 214092, January 11, 2016.

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