DR.

CONTRERAS WAS ABLE TO PROVE THAT SHE WAS CONSTRUCTIVELY DISMISSED BY

PETITIONER WHEN SHE WAS TRANSFERRED TO ANOTHER BANK WITH LOWER HOUR FEE;
EMPLOYER CANNOT RENEGED ON SUCH OBLIGATION TO REINSTATE EMPLOYEE BY
ALLEGING LACK OF JURISDICTION FOR THE FIRST TIME ON APPEAL

MAXICARE PCIB CIGNA HEALTHCARE (now MAXICARE HEALTHCARE CORPORATION), ERIC S.

NUBLA, JR. M.D. and RUTH A. ASIS, M.D., petitioners, vs. MARIAN BRIGITTE A. CONTRERAS,
M.D., respondent.||| (Maxicare PCIB CIGNA Healthcare v. Contreras, G.R. No. 194352, [January 30,
2013], 702 PHIL 688-700)

G.R. No. 194352. January 30, 2013

FACTS: Maxicare hired Dr. Contreras as retainer doctor at PNB head office, under verbal agreement that
he would render medical services for one year 250/hr. Controversy arose when she was informed that
she will be transferred to another account after a month. A Sevice agreement was signed where she will
be transferred to Maybank for 4 months, 168/hr. After one day of reporting to Maybank, she filed with LA
a complaint for constructive dismissal. LA dismissed the complaint for lack of merit, that the service
agreement was voluntarily signed by her. On appeal, NLRC reversed the decision, and declared that Dr.
Contreras was illegally dismissed and ordered her reinstatement with payment of backwages, ruling that
the execution of service agreement did not negate the constructive dismissal arising from her termination
without just or authorized causes but based only on alleged complaints which even the Vice President
recognized to be fictitious. CA affirmed the rulings of NLRC, explaining that Dr. Contreras was
constructively dismissed, that her transfer to Maybank which resulted in a diminution of her salary, was
prejudicial to her interest and amounted to a constructive dismissal.

In this appeal, Maxicare argues that there was no employer-employee relationship, thus the CA erred in
ruling in favor of respondent.

ISSUE: WON, respondent was constructively dismissed

HELD: YES respondent was indeed constructively dismissed. Dr. Contreras was able to sufficiently
establish that she was constructively dismissed by herein petitioner. The defense of petitioner that Dr.
Contreras was not an employee will not suffice.
Maxicare is already estopped from belatedly raising the issue of lack of jurisdiction considering that it has
actively participated in the proceedings before the LA and the NLRC. The Court has consistently held that
"while jurisdiction may be assailed at any stage, a party's active participation in the proceedings before a
court without jurisdiction will estop such party from assailing the lack of it." It is an undesirable practice of
a party to participate in the proceedings, submit his case for decision and then accept the judgment, if
favorable, but attack it for lack of jurisdiction, when adverse. This was the only time when petitioner
alleged the defense of lack of jurisdiction.
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

BLUE DAIRY CORPORATION and/or EDISON T. AVIGUETERO and PEDRO G.

MIGUEL, petitioners, vs. NATIONALLABOR RELATIONS COMMISSION and ELVIRA R.
RECALDE, respondents.
G.R. No. 129843. September 14, 1999

FACTS: Private respondent, Elvira Recalde was hired by herein petitioner Blue Dairy as a food
technologiest in its laboratory. On May 22, 1994, Recalde, on a Sunday reported for work but claimed that
she was not given premium pay. On October 21, 1994 Recalde accompanied Production Manager Editha
N. Nicolas in conducting a sensory evaluation of vanilla syrup in one of the outlets of a client. While on
their way back to the office a post fell on the company vehicle they were riding due to a raging typhoon
damaging the vehicle's windshield and side mirror. On 3 December 1994 Recalde was transferred from
the laboratory to the vegetable processing section where she cored lettuce, minced and repacked garlic
and performed similar work, and was restricted from entering the laboratory. She was unhappy. She
considered her new job humiliating and menial. On 14 December 1994 she stopped reporting for work,
and sent a letter to the President that she would no longer report for work. She then filed for a complaint
against petitioner for constructive dismissal. Petitioner contented that she was given less sensitive
assignment, outside laboratory due to her dishonesty, that the October 21 incident, Recalde was actually
scouting for a new residence using company vehicle without prior permission from the General Manager and during
office hours, in violation of company’s rules and regulations. LA ruled in favor of Recalde, the justification for
Recalde's transfer unreasonable: first, the unofficial trip on the way back to the office on 21 October was undertaken
through the bidding of the Production Manager; second, loss of trust and confidence must necessarily occur in the
performance of duties; and third, the new position of Recalde was too humiliating and demeaning. Petitioner was
ordered to reinstate Recalde to her former position as food technologist without loss of seniority rights and
privileges, with full back wages as well as to grant her premium pay. NLRC affirmed the same.

ISSUE: WON, Recalde was constructively dismissed

HELD: YES, petitioner constructively dismissed Recalde. Transfer of personnel is a management

prerogative, but the same like other rights are subject to limitations. It cannot be exercised with grave
abuse of discretion, and cannot be used as a subterfuge by the employer to rid himself of an undesirable worker.
The mployer must be able to show that the 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. Should the
employer fail to overcome this burden of proof, the employee's transfer shall be tantamount to constructive
dismissal, which has been defined as a quitting because continued employment is rendered impossible, unreasonable
or unlikely; as an offer involving a demotion in rank and diminution in pay. 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. 

In the case at bar, petitioner failed to justify Recalde's transfer from the position of food technologist in the
laboratory to a worker in the vegetable processing section. Petitioner’s contention of respondent’s use of the vehicle
without permission is tantamount to dishonesty should not be given weight as the latter was not given the
opportunity to explain her side, nor was Recalde notified in advance of her impending transfer. On petitioner’s
allegation that respondent breached the trust and confidence thus reasonable ground for dismissal, the
same must be related to the performance of the duties of the employee such as would show him to be thereby unfit
to continue working for the employer. By analogy, breach of trust and confidence as a ground for reassignment must
be related to the performance of the duties of the employee such as would show him to be thereby unfit to discharge
the same task. Clearly, the act of dishonesty imputed to Recalde has no bearing at all to her work in the laboratory.

Also, respondent was a food, technologist in the laboratory, she occupied a highly technical position requiring
use of her mental faculty. As a worker in the vegetable processing section, she performed mere mechanical work. It
was virtually a transfer from a position of dignity to a servile or menial job. The transfer was a demotion in rank,
beyond doubt.