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[G.R. No. 180285 : July 06, 2010]




Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking to reverse and set aside the 27 July 2007 Decision1 and the 17 October 2007 Resolution of the Court of Appeals in CA-G.R. SP No. 98868.

The factual premise of the case follows -

On 15 September 2003, petitioner Ma. Socorro Mandapat was hired as Sales and Marketing Manager for respondent Add Force Personnel Services, Inc.  As detailed in her appointment letter, her duties include negotiation and consummation of contracts with clients who wanted to avail of respondent's services.  She reported directly to the Chief Executive Officer (CEO), Colwyn Ron C. Longstaff  (Longstaff).2

Respondent claims that during her five-month stint as sales manager, petitioner failed to close a single deal or contract with any client.  In addition, petitioner issued several proposals to clients which were either grossly disadvantageous to respondent or disregarded the client's budget ceiling.  Petitioner also sent out several communications to clients containing erroneous data and computations; submitted fictitious daily activity reports and reimbursement slips; and consistently failed to submit her reports, such as the daily activity report, expense report, weekly sales call plan and internet-based calendar system on time.3

These infractions were contained in a show-cause notice sent to petitioner on 23 February 2004, directing her to explain why she should not be disciplined for gross and habitual neglect of duties and willful breach of trust. Petitioner was also preventively suspended and was asked to turn over pending tasks and to leave the office premises. We quote the pertinent portion of the memorandum:

x x x x

Please remember that as Sales Manager and head of the Sales Department, the company demands from you a disciplined approach on the implementation of the sales plans of the company as well as ability to lead your people by example.  However, from Management's evaluation of your performance these last five (5) months, you have not only failed to set a good example to your subordinates but you have, in fact, been the first one to violate company rules and procedures.

On account of the sensitivity of the position you currently hold, please be informed that Management has decided to put you on PREVENTIVE SUSPENSION during the course of the investigation of this matter. Accordingly, you are requested to immediately turnover to Ms. Abigail E. Villavert all of your pending tasks and, thereafter, leave the office premises.

For your information and appropriate action.


Corporate Counsel

Approved by:


Accompanied by her letter in response to the show-cause memorandum, petitioner tendered her resignation dated 25 February 2004 supposedly in protest of the preventive suspension meted on her.4

On 15 March 2004, petitioner filed a complaint for constructive dismissal with the labor arbiter.

In her position paper, petitioner alleged that she was constructively dismissed, as indicated by the following actions of respondent - first, she was illegally placed on preventive suspension; second, her access to the internet was cut off; and third, she was pressured by respondent into resigning in exchange for payment of separation pay.5

Petitioner also questioned as illegal her preventive suspension because she did not pose any danger to the lives of respondent's officers, as well as its properties.6

Petitioner denied that she was negligent and proffered that she faithfully and painstakingly performed her duties as sales manager.  She faulted Longstaff for his indecisiveness and the lack of support personnel and staff for the sales department.7

Respondent insisted that petitioner was not dismissed, that instead, she tendered her resignation. Hence, the claim for reinstatement had no basis. Respondent countered that petitioner was properly placed on preventive suspension because of the risk she posed on the property and business of respondent.8

On 30 September 2005, the labor arbiter rendered judgment9 finding petitioner to have been illegally and constructively dismissed, thus:

WHEREFORE, premises considered, judgment is hereby entered finding that complainant was illegally and constructively dismissed on 2/23/04 thus, ORDERING:

1) Respondent company ADD Force Personnel Services, Inc. to pay her full backwages from date illegally dismissed on 6/23/04 until actual payment and/or finality of this decision, which as of date amounts to basic P1,311,360.00 (P68,300.00 x 19.2 months), 13th month pay of P109,280.00, and the combined amounts of her leaves (VL & SL) of P107,913.68 (30 days/year x P2,276.66/day x 1.58 years);

2) Respondent company ADD Force Personnel Services, Inc., in lieu of complainant's reinstatement, to pay her separation pay of one (1) month per year of service/putative service reckoned from 09/15/03 until finality of this decision or actual payment which as of date, amounts to P136,600.00 (P68,300.00 x 2 years);

3) Respondents ADD Force Personnel Services, Inc., JACQUES A. DUPASQUIER (Chairman), COLWYN RON C. LONGSTAFF (CEO), ATTY. CRISTINA SAMSON (Corporate Counsel), to pay her in solido moral damages of P200,000.00 and exemplary damages of P100,000.00;

4) Respondent ADD Force Personnel Services, Inc. to pay her proportionate 13th month pay (Jan. to 02/23/04), last month's salary (February, 01-23, 2003) and reimbursements P2,000.00;

5) Respondent ADD Force Personnel Services, Inc. to pay her 10% of the total award as attorney's fees.10

The labor arbiter found that petitioner was illegally suspended without basis.  The charges of gross and habitual neglect of duties, as well as the loss of trust and confidence were not substantiated.  Thus, the labor arbiter concluded that petitioner was constructively dismissed by respondent.11

The National Labor Relations Commission (NLRC)12 affirmed with modification the findings of the labor arbiter.  The NLRC deleted the award of moral and exemplary damages for lack of sufficient basis. A motion for reconsideration was filed by respondent but it was denied for lack of merit.

On 21 June 2007, respondent filed a manifestation and motion stating that the NLRC had issued a writ of execution for the amount of money claims.  Unable to satisfy these claims, the sheriff garnished the bank accounts of respondent.

On 27 July 2007, the Court of Appeals, to which the case was elevated, enjoined the execution of the NLRC decision and subsequently reversed its decision, as well as that of the labor arbiter's.

The dispositive portion provides:

WHEREFORE, the petition for certiorari is GRANTED. The Decision of the National Labor Relations Commission dated 27 November 2006 affirming the Labor Arbiter's decision; its Resolution, dated 28 February 2007, denying petitioner's motion for reconsideration; and the Decision of the Labor Arbiter, dated 30 September 2005, are SET ASIDE. Ma. Socorro Mandapat's Complaint for illegal dismissal is DISMISSED.13

The Court of Appeals ruled that petitioner was not constructively dismissed but that the latter chose to resign from her job. Petitioner's bare allegation that she was coerced into resigning was not given credence by the appellate court. With respect to the allegation of illegal suspension, the Court of Appeals upheld the exercise by respondent of its management prerogative in suspending petitioner pending investigation for a perceived violation of company rules.

Furthermore, the appellate court declared that the issue of preventive suspension had been rendered moot by petitioner's resignation.14

Petitioner moved for reconsideration but it was denied in a Resolution issued on 17 October 2007.15

The principal issue to be resolved in the instant petition is whether petitioner was constructively dismissed.

Constructive dismissal exists when an act of clear discrimination, insensibility or disdain by an employer has become so unbearable to the employee leaving him with no option but to forego with his continued employment.16

Upon perusal of the records of this case, we find no evidence to support discrimination which led to constructive dismissal.

Petitioner reiterates that she was constructively dismissed.  She harps on the alleged pattern of harassment committed by respondent as tantamount to constructive dismissal, such as, illegally placing her under preventive suspension, the disconnection of her internet account, and the pressure exerted by respondent to force her to resign.17

Petitioner claims that the preventive suspension meted upon her is illegal for being indefinite, as the duration of her suspension was not stated in the company's memorandum.

On the other hand, respondent employer argues that petitioner's preventive suspension for one day can hardly be considered indefinite, given the fact that petitioner immediately resigned one day after the suspension.

We find that there was no act of discrimination committed against petitioner that would render her employment unbearable.

Preventive suspension may be legally imposed against an employee whose alleged violation is the subject of an investigation.  The purpose of his suspension is to prevent him from causing harm or injury to the company as well as to his fellow employees.

The pertinent rules dealing with preventive suspension are found in Section 8 and Section 9 of Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code, as amended by Department Order No. 9, Series of 1997, which read as follows:

Section 8. Preventive suspension. The employer may place the worker concerned under preventive suspension only if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers.

Section 9. Period of suspension. No preventive suspension shall last longer than thirty (30) days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss the worker.

When preventive suspension exceeds the maximum period allowed without reinstating the employee either by actual or payroll reinstatement18  or when preventive suspension is for indefinite period,19 only then will constructive dismissal set in.

While no period was mentioned in the show-cause memorandum, it was wrong for petitioner to infer that her suspension was for an indefinite period.  It must be pointed out that the inclusion of the phrase "during the course of investigation" would lead to a reasonable and logical presumption that said suspension in fact has a duration which could very well be not more than 30 days as mandated by law.  And, as the Court of Appeals correctly observed, the suspension has been rendered moot by petitioner's resignation tendered a day after the suspension was made effective.

Petitioner contests the grounds for her suspension as she denies posing a danger on the lives of the officers or employees of respondent or of their properties. Petitioner adds that she was not in a position to bind respondent to any contract, therefore, she could not and would not be able to sabotage the operations of respondent.20  Upon the other hand, respondent asserts that preventive suspension was necessary in order to protect the assets and operations of the company pending investigation of the alleged infractions committed by the employee concerned.21

Respondent is correct.  Indeed, as sales manager, petitioner had the power and authority to enter into contracts that would bind respondent, regardless of whether these contracts would prove to be beneficial or prejudicial to the interest of respondent. Respondent has every right to protect its assets and operations pending investigation of petitioner.

Neither could we consider the acts of disconnection of computer and internet access privileges as harassment.  Respondent clearly explained that the cessation of her internet and network privileges were but a consequence of the investigation against her and not for the purpose of harassment.22  The Court of Appeals gave merit to respondent's explanation and held, thus:

x x x while her suspension, cessation of internet privileges, and exclusion from local network access were but a consequence of the investigation against her, and were intended to prevent her from having further access to the company's network-based documents and forms.23

The acts respondent complains about are just measures enforced by respondent to protect itself while the investigation was ongoing.

Petitioner claims that Longstaff forced her to resign by baiting her with the promise of separation pay;24 but respondent maintains that there was nothing illegal in giving petitioner the option to either resign or be separated for a just cause.25

We agree with the Court of Appeals that there was no coercion employed on petitioner.  The appellate court made the following observation:

Unfortunately, however, before the investigation could proceed to the second step of the termination process into a hearing or conference, Mandapat chose to resign from her job.  Mandapat's bare allegation that she was coerced into resigning can hardly be given credence in the absence of clear evidence proving the same.  No doubt, Mandapat read the writing on the wall, knew that she would be fired for her transgressions, and beat the company to it by resigning.  Indeed, by the disrespectful tenor of her memorandum, Mandapat practically indicated that she was no longer interested in continuing cordial relations, much less gainful employment with Add Force.26

Mere allegations of threat or force do not constitute evidence to support a finding of forced resignation. In order for intimidation to vitiate consent, the following requisites must concur: (1) that the intimidation caused the consent to be given; (2) that the threatened act be unjust or unlawful; (3) that the threat be real or serious, there being evident disproportion between the evil and the resistance which all men can offer, leading to the choice of doing the act which is forced on the person to do as the lesser evil; and (4) that it produces a well-grounded fear from the fact that the person from whom it comes has the necessary means or ability to inflict the threatened injury to his person or property.27

None of these requisites was proven by petitioner.  No demand was made on petitioner to resign.  At most, she was merely given the option to either resign or face disciplinary investigation, which respondent had every right to conduct in light of the numerous infractions committed by petitioner. There is nothing irregular in providing an option to petitioner.  Ultimately, the final decision on whether to resign or face disciplinary action rests on petitioner alone.

All told, the instances of harassment alleged by petitioner appear to be more apparent than real.  We find no reason to disturb the conclusion of the Court of Appeals that petitioner resigned and was not constructively dismissed.

WHEREFORE, the petition is DENIED.  The 27 July 2007 Decision of the Court of Appeals in CA-G.R. SP No. 98868 is AFFIRMED.


Corona, C.J., (Chairperson), Velasco, Jr., Leonardo-De Castro, and Del Castillo, JJ., concur.


1 Penned by Associate Justice Ricardo R. Rosario with Associate Justices Rebecca De Guia Salvador and Magdangal M. De Leon, concurring.  Rollo, pp. 390-402.

2Id. at 209.

3Id. at 314-318.

4Id. at 208.

5 Id. at 366.

6Id. at 353-354.

7 Id. at 355.

8Id. at 320-321.

9 Penned by Labor Arbiter Renaldo O. Hernandez.  Id. at 229-244.

10 Id. at 243-244.

11 Id. at 241-243.

12 Penned by Commissioner Raul T. Aquino with Commissioners Victoriano R. Calaycay and Angelita A. Gacutan (on leave) concurring.  Id. at 86-96.

13 Id. at 401.

14 Id. at 399.

15 Id. at 411.

16 Formantes v. Duncan Pharmaceuticals, G.R. No. 170661, 4 December 2009 citing Endico v. Quantum Foods Distribution Center, G.R. No. 161615, 30 January 2009, 577 SCRA 299, 310; Montederamos v. Tri-Union International Corp., G.R. No. 176700, 4 September 2009, 598 SCRA 370, 376; Pentagon Steel Corporation v. Court of Appeals, G.R. No. 174141, 26 June 2009, 591 SCRA 160, 174-175 citing Hyatt Taxi Services v. Catinoy, 412 Phil. 295, 306 (2001).

17 Rollo, p. 36.

18 Hyatt Taxi Services, Inc. v. Catinoy, supra note 16 at 305.

19 Pido v. National Labor Relations Commission, G.R. No. 169812, 23 February 2007, 516 SCRA 609, 617-618.

20 Rollo, pp. 27-28.

21 Id. at 567.

22 Id. at 570.

23 Id. at 397.

24 Id. at 36.

25 Id. at 572.

26 Id. at 399.

27 Vicente v. Court of Appeals, G.R. No. 175988, 24 August  2007, 531 SCRA 240, 249 citing St. Michael Academy v. National Labor Relations Commission, 354 Phil. 491, 509-510 (1998).
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