1/4/2021 E-Library - Information At Your Fingertips: Printer Friendly appeal by respondents to the NLRC was the alleged grave abuse of discretion on the part of the LA in ruling that petitioner was constructively dismissed based on those particular circumstances. 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 and a diminution in pay.[64] It also exists when continued employment has become so unbearable because of acts of clear discrimination, insensibility or disdain by the employer, that the employee has no choice but to resign. What is essential is that there is a lack of "voluntariness in the employee's separation from employment."[65] Petitioner claimed that he was forced to resign.[66] Hence, it is incumbent upon him to prove that his resignation was involuntary and that it was actually a case of constructive dismissal, with clear, positive and convincing evidence.[67] This he failed to do. We agree with the NLRC that, "[t]he primary and immediate cause for [petitioner's] claim of constructive dismissal is the withdrawal of his assigned car and driver," which petitioner claimed as "essential requisites of [his] continued employment.''[68] In fact, despite all the allegations in his complaint, petitioner started to not report for work on October 13, 2008, the day Toyota terminated the services of his driver.[69] To place matters in perspective, what petitioner essentially alleges is diminution of benefits. It just so happened that the benefit allegedly unreasonably withdrawn was the means used by him to report for work. The Court has held that there is diminution of benefits when the following are present: (1) the grant or benefit is founded on a policy or has ripened into a practice over a long period of time; (2) the practice is consistent and deliberate; (3) the practice is not due to error in the construction or application of a doubtful or difficult question of law; and (4) the diminution or discontinuance is done unilateral1y by the employer.[70] Under the first requisite, the benefit must be based on express policy, a written contract or has ripened into a practice.[71] Here, the grant of service car and local driver to petitioner was based neither on express policy or a written contract. It may also not be considered company practice. To be considered as a regular company practice, it must be shown by substantial evidence that the giving of the benefit is done over a long period of time, and that it has been made consistently and deliberately. There must be an indubitable showing that the employer agreed to continue giving the benefit knowing fully well that the employees are not covered by any provision of the law or agreement requiring the grant thereof In sum, the benefit must be characterized by regularity and voluntary and deliberate intent of the employer to grant the benefit over a considerable period of time. The burden of proving that the benefit has ripened into practice rests in the employee.[72] https://elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/65727 7/14