Limits of courtesy resignation
Job insecurity may be considered part of the risks of appointment to key positions in a government office.
This came to light when newly appointed Transportation Secretary Vince Dizon and Department of Information and Communications Technology Secretary Henry Aguda ordered recently their undersecretaries, assistant secretaries and director to submit courtesy resignations.
They said that would give them a free hand in performing the duties and responsibilities that President Marcos had assigned to them. Once the resignations are submitted, they can decide who to retain and who to let go.
Unlike in government, submission of courtesy resignation is not standard practice in the private sector. The ability of an employer to terminate the services of his or her employees is strictly regulated by the Labor Code.
As a rule, regular employees may be dismissed only for just or authorized causes after compliance with the rules on due process provided for in the law or the collective bargaining agreement with the labor union, if any.
A passing or mere suggestion of courtesy resignation could give rise to a complaint for unfair labor practice or harassment at work.
But that high level of employment security does not apply to employees who owe their appointment from their board of directors or pursuant to the bylaws of the company.
Under the Revised Corporation Code, upon the election of the board of directors, it is obliged to elect a president, treasurer, secretary, compliance officer (if the company is vested with public interest) and such officers as may be provided in their bylaws.
It’s up to the board to decide who to name to those positions or what competencies they should have to justify their appointment.
Since those officers’ mandate comes from the board, the latter can terminate their appointment any time and in any manner it pleases, without prejudice to the right of the affected officer to seek judicial relief if he or she thinks the termination is unjustified.
But no recourse for that purpose can be had from the National Labor Relations Commission (NLRC) because the termination is considered an intracorporate dispute (as it involves a corporate officer) and not a labor dispute.
Thus, given the “provisional” nature of a corporate officer’s tenure, he or she should not wait to be asked to submit his or her resignation if, say, a change in stock ownership resulted in a major shift in the membership of the board or the board had, directly or indirectly, shown its dissatisfaction with his or her performance.
Without waiting to be asked, a voluntary filing of resignation under any of the incidents mentioned would be the most professional course of action.
But there is a caveat in the exercise of the board’s discretion on the appointment of corporate officers. It is limited to the four officers mentioned above and such officers as may be provided in the bylaws.
The latter phrase means that those officers or the positions they hold must be particularly stated in the bylaws as approved by the Securities and Exchange Commission.
A mere board resolution creating that position would be insufficient for whoever may be appointed to it to be entitled to the same status or protection as president, treasurer, secretary or compliance officer.
For example, if the board creates the position of chief information officer without amending the bylaws to have that included in the list of officers, the person appointed to that post is no different from any other employee in terms of security of tenure.
If he or she is dismissed and wants to contest the dismissal, the complaint falls under the jurisdiction of the NLRC as a labor dispute and not as an intracorporate dispute cognizable by the regular courts.
The advantage of seeking relief from the NLRC is it is not covered by the strict rules on evidence that applies to courts and it resolves all doubts in favor of labor.
Verily, that edge is not something to sneeze at if it involves a person’s livelihood.
