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"30 and other benefits. Aptly called a dismissal in disguise or an act amounting to dismissal but made to appear as if it were not,31 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.32 In cases of a transfer of an employee, the rule is settled 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 necessity33 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.34
Our perusal of the record shows that HCPTI miserably failed to discharge the foregoing onus. While there was a lack of showing that the transfer or reassignment entailed a diminution of salary and benefits, one fact that must not be lost sight of was that Morales was already occupying the position of Division Manager at HCPTI’s Accounting Department as a consequence of his promotion to said position on 22 October 2002. Concurrently appointed as member of HCPTI’s Management Committee (MANCOM) on 2 December 2002,35 Morales was subsequently reassigned by HCPTI “from managerial accounting to Operations Cost Accounting” on 27 March 2003, without any mention of the position to which he was actually being transferred. That the reassignment was a demotion is, however, evident from Morales’ new duties which, far from being managerial in nature, were very simply and vaguely described as inclusive of “monitoring and evaluating all consumables requests, gears and equipments related to [HCPTI’s] operations” as well as “close interaction with [its] sub-contractor Bulk Fleet Marine Corporation.”36
We have carefully pored over the records of the case but found no evidentiary basis for the CA’s finding that Morales was designated as head of HCPTI’s Operations Department37 which, as indicated in the corporation’s plantilla, had the Vice-President for Operations at its helm.38 On the contrary, Morales’ demotion is evident from the fact that his reassignment entailed a transfer from a managerial position to one which was not even included in the corporation’s plantilla. For an employee newly charged with functions which even the CA recognized as pertaining to the Operations Department, it also struck a discordant chord that Morales was, just the same, directed by HCPTI to report to Filart, its Vice- President for Finance39 with whom he already had a problematic working relationship.40 This matter was pointed out in Morales’ 31 March 2003 protest but was notably brushed aside by HCPTI by simply invoking management prerogative in its inter-office memorandum dated 4 April 2003.41
Admittedly, the right of employees to security of tenure does not give them vested rights to their positions to the extent of depriving management of its prerogative to change their assignments or to transfer them.42 By management prerogative is meant the right of an employer to regulate all aspects of employment, such as the freedom to prescribe work assignments, working methods, processes to be followed, regulation regarding transfer of employees, supervision of their work, lay-off and discipline, and dismissal and recall of workers.43 Although jurisprudence recognizes said management prerogative, it has been ruled that the exercise thereof, while ordinarily not interfered with,44 is not absolute and is subject to limitations imposed by law, collective bargaining agreement, and general principles of fair play and justice.45 Thus, an employer may transfer or assign employees from one office or area of operation to another, provided there is no demotion in rank or diminution of salary, benefits, and other privileges, and the action is not motivated by discrimination, made in bad faith, or effected as a form of punishment or demotion without sufficient cause.46 Indeed, having the right should not be confused with the manner in which that right is exercised.47
In its comment to the petition, HCPTI argues that Morales’ transfer was brought about by the reorganization of its corporate structure in 2003 which was undertaken in the exercise of its management prerogative to regulate every aspect of its business.48 This claim is, however, considerably at odds with HCPTI’s assertions before the Labor Arbiter to the effect, among other matters, that Morales erroneously and negligently authorized the repeated payments of realty taxes from which the corporation was exempt as a PEZA-registered company; that confronted by Filart regarding his poor work performance which resulted in losses amounting to P3,350,000.00, Morales admitted his inability to handle his job at the accounting department; and, that as a consequence, HCPTI decided to reassign him to the Operations Cost Accounting.49 Without so much as an affidavit from Filart to prove the same, this purported reason for the transfer was, moreover, squarely refuted by Morales’ 31 March 2003 protest against his reassignment.50
By itself, HCPTI’s claim of reorganization is bereft of any supporting evidence in the record. Having pointed out the matter in his 31 March 2003 written protest, Morales was able to prove that HCPTI’s existing plantilla did not include an Operations Cost Accounting Department and/or an Operations Cost Accountant.51 As the party belatedly seeking to justify the reassignment due to the supposed reorganization of its corporate structure, HCPTI, in contrast, did not even bother to show that it had implemented a corporate reorganization and/or approved a new plantilla of positions which included the one to which Morales was being transferred. Since the burden of evidence lies with the party who asserts the affirmative of an issue, the respondent has to prove the allegations in his affirmative defenses in the same manner that the complainant has to prove the allegations in the complaint.52 In administrative or quasi-judicial proceedings like those conducted before the NLRC, the standard of proof is substantial evidence which is understood to be more than just a scintilla or such amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.53
Having alleged 27 March 2003 as the date of his constructive dismissal, Morales was erroneously taken to task by the CA for inconsistently claiming that he took a leave of absence from 4 April 2003 to 17 April 2003.54 As the date of his reassignment, 27 March 2003 was understandably specified by Morales as the date of his constructive dismissal since it was on said date that he considered himself demoted. Alongside his reporting for duty subsequent thereto, Morales’ leave of absence on the aforesaid dates is, in turn, buttressed by HCPTI’s 29 April 2003 Inter-Office Memorandum which, labeled as a First Warning, called attention to his being “either absent or tardy from work on several occasions during the entire month of April”.55 Since Morales could not have been tardy had he outrightly rejected his reassignment, this Inter-Office Memorandum notably debunks HCPTI’s contention that he altogether stopped reporting for work after receiving Singson’s reply to his 31 March 2003 protest against the demotion that resulted from his reassignment to Operations Cost Accounting.56
Although much had been made about Morales’ supposed refusal to heed his employer’s repeated directives for him to return to work, our perusal of the record also shows that HCPTI’s theory of abandonment of employment cannot bear close scrutiny. While ostensibly dated 6 May 2003, the Inter-Office Memorandum labeled as a Second Warning was sent to Morales thru the JRS Express only on 9 May 200357 or two (2) days after summons were served on HCPTI, Filart and Singson on 7 May 2003.58 Sent to Morales on 26 May 2003 or after the parties’ initial conference before the Labor Arbiter on 19 May 2003,59 there was obviously even less reason for HCPTI’s 22 May 2003 letter denominated as Notice to Report for Work and Final Warning. As a just and valid ground for dismissal, at any rate, abandonment requires the deliberate, unjustified refusal of the employee to resume his employment,60 without any intention of returning.61 Since an employee like Morales who takes steps to protest his dismissal cannot logically be said to have abandoned his work, it is a settled doctrine that the filing of a complaint for illegal dismissal is inconsistent with abandonment of employment.62
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