General Rule
Under Article 286 of the Labor Code, the bona fide suspension of the operation of a business or undertaking for a period not exceeding six months shall not terminate employment. Consequently, when the bona fide suspension of the operation of a business or undertaking exceeds six months, then the employment of the employee shall be deemed terminated. By the same token and applying said rule by analogy, if the employee was forced to remain without work or assignment for a period exceeding six months, then he is in effect constructively dismissed.6
The cardinal rule in termination cases is that the employer bears the burden of proof to show that the dismissal is for just cause, failing in which it would mean that the dismissal is not justified. 11 This rule applies adversely against herein respondent company since it has utterly failed to discharge that onus by the requisite quantum of evidence.
Under Article 279 of the Labor Code, as amended, an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full back wages, inclusive of allowances, and to other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.12
Thus, it being clearly established that herein petitioner was constructively dismissed, the decision of the Labor Arbiter awarding him back wages and separation pay in lieu of reinstatement x x x is definitely in order.
Related case
The mere lapse of six months in "floating status" should not automatically result to constructive dismissal |
The instant controversy centers on the legality of Loque's "floating status." In security services, the "floating status" or temporary "off-detail" of an employee may take place when there are no available posts to which the employee may be assigned — which may be due to the non-renewal of contracts with existing clients of the agency, or from a client's request for replacement of guards assigned to it.15
While there is no specific provision in the Labor Code governing the "floating status" or temporary "off-detail" of employees, the Court, applying Article 301 286 of the Labor Code by analogy, considers this situation as a form of temporary retrenchment or lay-off.16
Conformably with the above provision, the placement of an employee on "floating status" must not exceed six months. Otherwise, the employee may be considered constructively dismissed.17 Furthermore, the burden of proving that there are no posts available to which the security guard can be assigned rests on the employer.18 However, the mere lapse of six months in "floating status" should not automatically result to constructive dismissal. The peculiar circumstances of the employee's failure to assume another post must still be inquired upon.19
In this case, it is undisputed that Loque was placed on floating status beginning on the lapse of his 10-day suspension on January 7, 2014. Thus, at the time he filed the complaint for constructive dismissal and money claims on July 28, 2014, he has been on "floating status" for six months and 21 days.
To avoid liability for constructive dismissal, Seventh Fleet asserted that it had directed Loque "to report to [Seventh Fleet's office] for posting within forty eight (48) hours"20 through the letters dated May 14, 2014 and May 28, 2014. Seventh Fleet faulted Loque for not complying with its directive. On the other hand, Loque claimed that he went to Seventh Fleet's office to report for work on two occasions — on May 19, 2014 and July 11, 2014, as shown by his even dated letters. Loque further alleged that he was barred from entering the premises of Seventh Fleet on those dates and, thus, was constrained to write those letters instead.
As with the CA, the Court is likewise inclined to believe the allegations of Loque. The Court notes that other than bare denials, Seventh Fleet was not able to show that Loque was not barred from entering its premises. Thus, Loque could not be faulted for merely leaving the letter dated May 19, 2014 with security guard Amores, and for sending the letter dated July 11, 2014 through private courier. Also noteworthy, Seventh Fleet did not dispute the July 11, 2014 letter but merely attempted to discredit Loque by saying that the letter was merely "crafted"21 in preparation to the filing of the complaint. Then again, Seventh Fleet did not respond nor refute the contents of said letter. At this point, it bears stressing that the factual findings of the CA are generally binding on the Court,22 and the latter retains full discretion on whether to review the factual findings of the CA.23 In this case, the Court finds no cogent reason to disturb the findings of the CA that Loque went to the office of Seventh Fleet.
RE: General Return to Work Order; Not Sufficient
At any rate, the letters dated May 14, 2014 and May 28, 2014 sent by Seventh Fleet to Loque are in the nature of general return to work orders. Such general return to work orders will not absolve Seventh Fleet since jurisprudence requires not only that the employee be recalled to the agency's office, but that the employee be deployed to a specific client before the lapse of six months. As held by the Court in Ibon v. Genghis Khan Security Services,24 viz.:
In Tatel v. JLFP Investigation ([JLFP] Investigation), the Court initially found that the security guard was constructively dismissed notwithstanding the employer's letter ordering him to report back to work. It expounded that in spite of the report-to-work order, the security guard was still constructively dismissed because he was not given another detail or assignment. On motion for reconsideration, however, the Court reversed its ruling after it was shown that the security guard was in fact assigned to a specific client, but the latter refused the same and opted to wait for another posting.
A holistic analysis of the Court's disposition in [JLFP] Investigation reveals that: 1 an employer must assign the security guard to another posting within six (6) months from his last deployment, otherwise, he would be considered constructively dismissed; and 2 the security guard must be assigned to a specific or particular client. A general return-to-work order does not suffice.
In Exocet Security and Allied Services Corporation v. Serrano (Exocet Security), the Court absolved the employer even if the security guard was on a floating status for more than six (6) months because the latter refused the reassignment to another client, to wit:
In the controversy now before the Court, there is no question that the security guard, Serrano, was placed on floating stat us after his relief from his post as a VIP security by his security agency's client. Yet, there is no showing that his security agency, petitioner Exocet, acted in bad faith when it placed Serrano on such t1oating status. What is more, the present case is not a situation where Exocet did not recall Serrano to work within the six-month period as required by law and jurisprudence. Exocet did, in fact, make an offer to Serrano to go back to work. x x x
Clearly, Serrano's lack of assignment for more than six months cannot be attributed to petitioner Exocet. On the contrary, records show that, as early as September 2006, or one month after Serrano was relieved as a VIP security, Exocet had already offered Serrano a position in the general security service because there were no available clients requiring positions for VIP security. Notably, even though the new assignment does not involve a demotion in rank or diminution in salary, pay, or benefits, Serrano declined the position because it was not the post that suited his preference, as he insisted on being a VIP Security. x x x
The employee's lack of assignment for more than six months cannot be attributed to Employer |
Clearly, Serrano's lack of assignment for more than six months cannot be attributed to petitioner Exocet. On the contrary, records show that, as early as September 2006, or one month after Serrano was relieved as a VIP security, Exocet had already offered Serrano a position in the general security service because there were no available clients requiring positions for VIP security. Notably, even though the new assignment does not involve a demotion in rank or diminution in salary, pay, or benefits, Serrano declined the position because it was not the post that suited his preference, as he insisted on being a VIP Security. x x x
It is unfair and unacceptable to immediately declare the mere lapse of the six-month period of "floating status as a case of constructive dismissal |
Thus, it is manifestly unfair and unacceptable to immediately declare the mere lapse of the six-month period of "floating status as a case of constructive dismissal, without looking into the peculiar circumstances that resulted in the security guard's failure to assume another post. This is especially true in the present case where the security guard's own refusal to accept a non-VIP detail was the reason that he was not given an assignment within the six-month period. The security agency, Exocet, should not then be held liable. (Emphases in the original omitted).
RE: Constructive Dismissal
Applying the foregoing to the present controversy, respondent should have deployed petitioner to a specific client within six (6) months from his last assignment. The correspondences allegedly sent to petitioner merely required him to explain why he did not report to work. He was never assigned to a particular client. Thus, even if petitioner actually received the letters of respondent, he was still constructively dismissed because none of these letters indicated his reassignment to another client. Unlike in Exocet Security and [JLFP] Investigation, respondent is guilty of constructive dismissal because it never attempted to redeploy petitioner to a definite assignment or security detail.25 (Emphasis in the original; citations omitted)
Considering that Loque was placed on floating status for more than six months without being deployed to a specific assignment, and that the letters dated May 14, 2014 and May 28, 2014 are bereft of any reference to any specific client or indication that he would be assigned to a specific client, Loque is therefore deemed constructively dismissed. It follows then that Loque could not have abandoned his employment with Seventh Fleet, for abandonment is incompatible with constructive dismissal.
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