Employer liable for slow action re sexual harassment

An employee is considered constructively dismissed if s/he was sexually harassed by her superior and her employer failed to act on his or her complaint with prompt and sensitivity. (Per Leonen, LBC Express-Vis, Inc. Vs. Monica C. Palco, G.R. No. 217101, February 12, 2020, sc.judiciary.gov.ph/13399)

In the above-cited case, what started to be mere flirting coming from an immediate supervisor escalated into a full-blown sexual harassment. The victim-employee filed a complaint with the Head Office of the employer but this was not acted upon promptly.

In 2009, Monica C. Palco, the victim-employee (Palco), started working with LBC Express-Vis Inc. (LBC) as a customer associate in its Gaisano Danao Branch (LBC Danao). The Branch's Team Leader and Officer-in-Charge, Arturo A. Batucan (Batucan), endorsed her application for the post and acted as her immediate supervisor. It must be noted that Batucan is married.

While employed at LBC, Palco initially noticed that Batucan would often flirt with her; this, of course, made her feel uncomfortable. Later, Batucan started sexually harassing her. Batucan directed toward Palco uncomfortable smiles, stares, offers of loan, gifts of chocolate, unsolicited and unconsented touches on the lap, hand and shoulders, kisses on the cheek, pulling of the straps of her bra, jokes about having children with her, and jokes about having threesome with her and her future husband.

The final straw happened at around 8:00AM on May 01, 2010. That morning, Batucan sneaked in on Palco while she was in the corner counting money. She was surprised. Batucan then held her on the hips and attempted to kiss her lips. However, Palco was able to shield herself. 

For a second time, Batucan tried to and was able to kiss Palco on the lips; this time, she was not able to react fast enough. He told her he was just happy that day and that made him kiss her. He then proceeded to wipe her lips. After that, Batucan started acting as if they were in a romantic relationship. For example, he even asked her permission to go to the LBC Camotes Branch.

Due to the Head Office's lack of prompt in acting on her complaint, she no longer felt safe and comfortable going to work. As a result, she filed a resignation letter and, on the same day, filed a labor complaint with the Labor Arbiter which held that she was illegally dismissed. This was affirmed by the National Labor Relations Commission (NLRC) on appeal.

It went up to the Supreme Court which held LBC liable for illegal dismissal. Palco was held constructively dismissed.

Constructive dismissal occurs when an employer makes an employee's continued employment impossible, unreasonable or unlikely, or has made an employee's working conditions or environment harsh, hostile and unfavorable, such that the employee feels obliged to resign from his or her employment, Common examples are when the employee is demoted, or when his or her pay or benefits are reduced. However, constructive dismissal is not limited to these instances. The gauge to determine whether there is constructive dismissal is whether a reasonable person would feel constrained to resign from his or her employment because of the circumstances, conditions and environment created by the employer for the employee. (G.R. No. 217101)

Constructive dismissal does not always involve forthright dismissal or diminution in rank, compensation, benefit and privileges. There may be such dismissal when an act of clear discrimination, insensibility [insensitivity?] or disdain by an employer becomes so unbearable on the part of the employee that the employee is left with no choice but to forgo his continued employment. (Saudia v. Rebensencio, 750 Philippine Reports 791, 839, 2015. Per J. Leonen, Second Division)

One of the ways by which hostile or offensive work environment is created is through the sexual harassment of an employee. This is punished by Republic Act No. (RA) 7877, otherwise known as the Anti-Sexual Harassment Act.

LBC's argument that it should not be made liable because the sexual harassment was committed by Batucan cannot hold water. Batucan is not a mere co-employee of Palco. He is a part of the managerial staff. In fact, at the very least, he held a supervisory position when he perpetrated those criminal acts again Palco.

Although the company cannot be held liable solely by reason of Batucan's act, RA 7877 states that there shall be solidary liability if the employer, head of office or institution was informed and no immediate action was taken thereon. (Section 5) It took LBC two (2) months to resolve the matter.

Given this, the delay of the employer in acting on the victim-employee's case showed the former's insensitivity, indifference and disregard for its employees' security and welfare. It even appears that LBC belittled Palco's allegations.

In addition to RA 7877, RA 11313, otherwise known as the Safe Spaces Act, strengthens protection against gender-based sexual harassment. It states that complaints shall be investigated and resolved within ten (10) days or less upon its reporting. It must be noted, however, that RA 11313 had not yet taken effect when Batucan committed his crimes against Palco.