NLRC Position Paper for Constructive Dismissal in the Philippines: How to Prepare
This guide is for general information only and isn’t a substitute for advice from a Philippine lawyer or accredited representative. NLRC rules and forms are updated from time to time—always check the latest issuances of the National Labor Relations Commission (NLRC) and your Regional Arbitration Branch (RAB).
1) What “constructive dismissal” means
Constructive dismissal happens when an employee resigns because the employer’s acts make continued employment impossible, unreasonable, or unlikely—such as a demotion, diminution of pay/benefits, indefinite “floating” beyond six (6) months without valid cause, harassment or discrimination, coercion to resign, punitive transfers, or suspension without basis.
Test applied: Would a reasonable person in the employee’s position feel compelled to resign? If yes, the resignation is treated as an illegal dismissal.
Burden of proof (at a glance):
- The employee must present substantial evidence that the resignation was involuntary (i.e., facts showing employer acts that forced the resignation).
- Once constructive dismissal is shown, the employer must prove a lawful cause (just or authorized cause) and compliance with due process—usually difficult in constructive dismissal because there was no proper dismissal procedure.
2) Where and when to file (jurisdiction, venue, prescription)
Forum: NLRC, through the Regional Arbitration Branch (RAB) that covers the place of work or where the parties reside / maintain principal office (follow NLRC venue rules).
Pre-filing conciliation (SEnA): A single-entry conciliation-mediation is commonly required before filing; check local practice and current exceptions. Keep proof of attendance/termination of SEnA on hand.
Prescription:
- Illegal (constructive) dismissal claim: generally 4 years from the effectivity of the forced resignation.
- Money claims (e.g., unpaid benefits, differentials): 3 years from when they fell due.
- Unfair labor practice: 1 year from the act. (Often separate from constructive dismissal.)
Filing on time matters. If both illegal dismissal and monetary claims are pursued, the shorter 3-year limit may bar some older money items even if the dismissal claim itself is timely.
3) NLRC flow and the role of the position paper
- Complaint is filed → case raffled to a Labor Arbiter (LA).
- Mandatory conference(s): identify issues, explore settlement, mark preliminary submissions.
- The Arbiter directs parties to file Position Papers (with affidavits and all evidence) within a non-extendible period (commonly 10 calendar days from last conference).
- Case is often decided on the papers (no full-blown trial). The LA may allow reply/rejoinder or clarificatory hearing if needed.
Because there’s usually no oral trial, the Position Paper is your trial: it must carry the complete narrative, legal arguments, computations, and proof.
4) Evidence strategy for constructive dismissal
Build a dated, document-backed timeline. Attach and label every piece of proof.
Typical evidence:
- Employment contract, job description, promotion letters, before/after pay slips, 13th-month records, time records.
- Resignation letter (if any) and the circumstances: emails/texts pressuring resignation, threats of disciplinary action, sudden demotions/transfers, withholding of pay, forced leaves, or indefinite “floating.”
- Notices/memos, “coaching” or “performance” documents, transfer orders (showing punitive relocation or demotion), suspension orders.
- Comparator evidence: org charts, team emails, work assignments showing loss of duties/responsibilities.
- Affidavits (Q&A form) from the complainant and witnesses (colleagues, HR interactions).
- Medical/psychological consults (if claiming moral damages), receipts (if claiming actual damages).
Key angles to prove:
- Involuntariness of resignation (coercion/harassment; resignation “to avoid worse consequences”).
- Employer acts showing discrimination, demotion, pay/benefits cut, or long floating.
- No valid business reason for transfer/demotion; or measures were excessive relative to any business need.
- Prompt protest or documentation: emails complaining about the demotion/transfer/harassment (shows you didn’t intend to quit).
5) Structure of an effective Position Paper
Use clear headings and consistent exhibit labels (e.g., Annex “A,” “A-1,” “B,” …). Paginate everything.
A. Prefatory Parts
- Caption & Title (as directed by the NLRC RAB)
- Verification and Certification against Forum Shopping (signed by the party; attach special authority if a representative signs)
- Appearance of Counsel and proof of authority (if applicable)
- Table of Annexes (optional but helpful for thick filings)
B. Statement of the Case
- Nature of the action: “Illegal dismissal via constructive dismissal with claims for backwages, reinstatement (or separation pay in lieu), damages, attorney’s fees, and legal interest.”
- Short procedural history: SEnA outcome, filing, conferences.
C. Concise Questions Presented
Example:
- Whether respondent’s acts amounted to constructive dismissal;
- Whether complainant is entitled to reinstatement or separation pay and backwages;
- Whether damages and attorney’s fees are warranted.
D. Statement of Facts (Timeline)
- Chronological, date-stamped, and document-cited.
- Cross-reference each fact to an Annex (“See Annex ‘C,’ Email dated 12 March 2024…”).
E. Arguments
- E.1 Legal standards and burden: Define constructive dismissal and the “reasonable person” test; stress substantial evidence threshold.
- E.2 Application to facts: Map each employer act to jurisprudential categories: demotion, pay cut, punitive transfer, harassment, illegal suspension, >6-month floating, etc.
- E.3 Due process: Note absence of notices/hearing if the employer effectively dismissed you.
- E.4 Remedies: Reinstatement (or separation pay in lieu because of strained relations), backwages, 13th month on backwages, SIL pay (if applicable), damages, attorney’s fees, 6% legal interest.
- E.5 Defenses anticipated: Voluntary resignation; performance issues; “business necessity” for transfer; “no demotion/pay cut.” Rebut each with documents.
F. Monetary Computations (with tables)
Show formulas and periods—month by month if needed. Attach a Computation Schedule as Annex.
- Backwages = Monthly basic pay × number of months from date of forced resignation to reinstatement or finality of judgment (as applicable) + fixed allowances regularly received. (Earnings elsewhere are not deducted in illegal dismissal.)
- 13th-Month Pay on Backwages = 1/12 of total basic backwages.
- Separation Pay (in lieu of reinstatement) = 1 month pay × years of service (≥6-month fraction counts as 1), when reinstatement is no longer feasible (e.g., strained relations, position abolished).
- SIL Pay (if covered and unused): Daily rate × unused days (max 5 per year) × last 3 years (if claiming).
- Damages (moral/exemplary): state basis and supporting facts; quantify reasonably.
- Attorney’s Fees: commonly 10% of total monetary award when the employee was compelled to litigate.
- Legal Interest: typically 6% per annum on monetary awards; specify accrual as prayed for (from finality until full payment; some items may accrue earlier—ask for what’s most favorable under current rulings).
G. Prayer
- Clear, itemized relief with amounts (or “to be recomputed” at execution).
H. Attachments
- Affidavits (Q&A form, notarized), Documentary Exhibits, Computation Schedule, Proof of Service on the other side.
6) Drafting techniques that win cases
- Lead with the theory: One short paragraph at the start: “This is constructive dismissal caused by a punitive demotion and arbitrary transfer cutting pay by 20% without lawful reason.”
- Make the test easy to apply: After each fact cluster, add one sentence applying the reasonable person standard.
- Show “before vs. after”: A simple two-column table (position, duties, pay, worksite) makes demotion/diminution obvious.
- Cite documents as you go: Avoid “see annexes” bunched at the end—pinpoint cite every material assertion.
- Quantify everything: Courts value numbers. Even a provisional schedule shows seriousness and helps the Arbiter.
- Anticipate defenses: Add a sub-section “Why resignation was involuntary” (e.g., threat emails, withholding of pay, sham PIPs).
- Tone: Professional, restrained; let the documents and timeline do the heavy lifting.
7) Packaging and filing details
- Affidavits must be sworn and in Q&A format; attach copies of the exhibits they identify.
- Readable exhibits: Highlight relevant lines (without obscuring text). Translate non-English/Filipino emails where needed.
- Labels: Footer each page with the case number and Annex label.
- Verification & Non-Forum Shopping: Sign by the party; if a representative signs, attach a Special Power of Attorney expressly authorizing it.
- Service to the other party: Personal service, registered mail, recognized courier, or e-service as allowed; keep proof of service.
- Deadlines are strict (position paper periods are usually non-extendible). File early.
8) Remedies to pray for (and when)
Primary:
- Reinstatement without loss of seniority rights and full backwages; or
- Separation pay in lieu of reinstatement (if return is impracticable due to strained relations, closure, position abolished), plus backwages.
Ancillary: 13th-month on backwages; SIL pay (if applicable); proportionate allowances; moral and exemplary damages (show bad faith/harassment); attorney’s fees (10%); legal interest (6%).
Reinstatement pending appeal: If ordered by the Arbiter, reinstatement (or payroll reinstatement) is immediately executory even during appeal—mention this in your prayer.
9) Common employer defenses—and how to address them
“Voluntary resignation.”
- Rebut with coercion context (threat emails, forced choice), temporal proximity (sudden demotion → resignation), and lack of prior discipline.
“Business necessity” for transfer/demotion.
- Demand proof of actual business reason and proportionality. Show similarly situated employees weren’t treated the same.
“Performance problems.”
- Require documented evaluations and due process; expose sham or sudden PIPs used as leverage to force a quit.
“Floating status is allowed.”
- Not beyond six (6) months without valid basis or pay arrangements; beyond that is typically constructive dismissal.
“No pay cut.”
- Show total compensation (basic + regular allowances) before/after; even loss of key responsibilities can be constructive dismissal.
10) Checklists
Employee-complainant checklist
- SEnA proof (if applicable)
- Timeline with dates and exhibits
- Contract, pay slips (before/after), org chart, transfer/demotion memos
- Resignation letter & coercion evidence
- Affidavits (Q&A, notarized)
- Computation schedule (backwages, 13th month, etc.)
- Verification & Non-Forum Shopping; Proof of Service
Employer-respondent checklist (if you’re defending)
- Proof resignation was voluntary (e.g., resignation letter stating free will, exit interview)
- Business reason documents for transfer/reorg
- Payroll/time records, policies, job descriptions
- If asserting just/authorized cause: notices and hearing proof
- Point-by-point rebuttal and counter-computation (if any)
11) Sample skeleton you can adapt
POSITION PAPER [Complainant], vs. [Respondent Company] NLRC RAB Case No. [____]
I. Statement of the Case (Nature of action, brief procedural history)
II. Questions Presented (List issues)
III. Statement of Material Facts (Chronological timeline with annex cites)
IV. Arguments A. Legal standards on constructive dismissal and substantial evidence B. Application: employer’s acts amount to constructive dismissal C. Due process failure and bad faith D. Remedies and legal basis
V. Monetary Computations (Tables + formulas; refer to Annex “C-1”)
VI. Prayer (Itemized relief: reinstatement or separation pay, backwages, 13th month on backwages, damages, attorney’s fees, 6% interest, other just relief)
VII. Exhibits and Annexes (List and labels)
Verification & Certification against Forum Shopping (Signed by party; notarized)
12) Computation notes and example formulas
- Monthly Backwages = (Basic Monthly Salary + fixed regular allowances)
- Total Backwages = Monthly Backwages × number of months from forced resignation date to reinstatement/finality
- 13th-Month on Backwages = Total Basic Backwages ÷ 12
- Separation Pay (in lieu) = 1 month pay × years of service (≥6-month fraction = 1 year)
- Attorney’s Fees = 10% × (Total Monetary Awards)
- Legal Interest = 6% per annum × (Total Monetary Awards) from finality until fully paid (and/or as allowable for pre-finality accruals—ask for it explicitly).
Tip: Attach a simple spreadsheet printout as Annex “Comp-1.”
13) After filing: what to expect
- Replies/Rejoinders: The Arbiter may allow a brief rejoinder; only raise truly new matters.
- Clarificatory hearing: Sometimes set to probe conflicts in affidavits or computations.
- Decision and appeals: LA Decisions are appealable to the NLRC Commission within 10 calendar days from receipt. Employers appealing a monetary award must post a cash/surety bond equal to the award (with limited recognized exceptions). NLRC decisions may be challenged by Rule 65 petition at the Court of Appeals.
14) Frequent pitfalls (avoid these!)
- Missing Verification/Non-Forum Shopping or wrong signatory.
- Story without proof: facts not tied to exhibits.
- No computation or vague prayer (“such amounts as may be just”).
- Late filing; unserved copies; illegible exhibits.
- Overclaiming damages without factual basis.
- Ignoring venue/prescription traps.
- Forgetting to address the resignation letter (if one exists).
15) Quick FAQs
- I signed a resignation letter—am I sunk? No. Explain the coercive context (threats, harassment, sham PIP) and attach proof.
- I was transferred far away with a pay cut. Punitive transfers and diminution of pay are classic constructive dismissal indicators—document both.
- I was put on “floating” for more than 6 months. That’s usually unlawful without valid grounds—raise it clearly.
- I want separation pay, not reinstatement. You can pray in the alternative for separation pay in lieu of reinstatement due to strained relations.
Final reminders
- Your position paper is the case: clear theory, tight timeline, complete proof, and clean computations.
- Be respectful and precise; let documents and numbers persuade.
- When in doubt about the latest filing mechanics (e-filing, formats, fees), call or visit your RAB for their current practice.
If you want, I can turn this into a fill-in-the-blanks template tailored to your facts (no confidential details needed).