The employee alleged that sometime in May 2006, he was hired as a security guard by SF Security Services, Inc. He narrated that on December 25, 2013, he was suddenly relieved from his post upon request of SF Security Services, Inc.’s client. The next day, he received an order suspending him for 10 days. After the lapse of his 10-day suspension, or on January 7, 2014, he reported for work. However, SF Security Services, Inc. informed him that he was placed on floating status and he was just advised to wait for a call.
The employee further narrated that on May 16, 2014, he received a letter from SF Security Services, Inc. directing him to report to its office within 48 hours from receipt thereof. The employee claimed that he went to SF Security Services, Inc. ‘s office on May 19, 2014, but he was not allowed to enter and was made to wait outside the office. Before leaving the premises, he handed a letter to SF Security Services, Inc. to inform his readiness to report for duty on the same day. SF Security Services, Inc. wrote a second letter dated May 28, 2014, allegedly to make it appear that he failed to report to work despite its return to work order. In a letter dated July 11, 2014, the employee inquired the status of his employment. However, SF Security Services, Inc. refused to provide him with work.
On July 28, 2014, the employee filed a complaint for constructive dismissal against SF Security Services, Inc.
SF Security Services, Inc. admitted the suspension of the employee for a period of 10 days, starting December 26, 2013. However, it asserted that on May 14, 2014, it sent the employee a letter directing him to report for posting, but the latter did not comply with the directive. On May 28, 2014, SF Security Services, Inc. sent him another letter reiterating the instruction to report for posting. However, it still received no word from the employee. According to SF Security Services, Inc., it was surprised to learn of the employee’s complaint for illegal dismissal.
Was the employee validly placed on floating status?
The Supreme Court stated that 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.1Salvaloza v. National Labor Relations Commission, G.R. No. 182086, November 24, 2010, 650 PHIL 543-561. It added that while there is no specific provision in the Labor Code of the Philippines governing the “floating status” or temporary “off-detail” of employees, Article 3012Formerly Article 286. Article 301 reads: ART. 301. When Employment not Deemed Terminated. — The bona fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty. of the said law, by analogy, considers this situation as a form of temporary retrenchment or lay-off.3on ||| Superior Maintenance Services, Inc. v. Bermeo, G.R. No. 203185, December 5, 2018.
The Court further stated that 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.4Ibon v. Genghis Khan Security Services, G.R. No. 221085, June 19, 2017, 811 PHIL 250-260. Furthermore, the burden of proving that there are no posts available to which the security guard can be assigned rests on the employer.5Nationwide Security and Allied Services, Inc. v. Valderama, G.R. No. 186614, February 23, 2011, 659 PHIL 362-374. 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.6Exocet Security and Allied Services Corp. v. Serrano, G.R. No. 198538, September 29, 2014, 744 PHIL 403-422.
In the present case, the Supreme Court found that the employee was placed on floating status beginning on the lapse of his 10-day suspension on January 7, 2014 and that he had been on floating status for six months and 21 days from the time he filed the complaint for constructive dismissal on July 28, 2014.
The Court also found that although SF Security Services, Inc. sent the employee letters dated May 14, 2014 and May 28, 2014, the same were in the nature of general return to work orders. According to the Court, 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.7Ibon v. Genghis Khan Security Services, G.R. No. 221085, June 19, 2017, 811 PHIL 250-260.
The Court stated that considering that the employee was placed on floating status for more than six months without being deployed to a specific assignment he was deemed to have been constructively dismissed from employment. The employee was granted the reliefs of separation pay 8considering that he no longer asked to be reinstated and backwages.
Could the employee be said to have abandoned his employment?
The Court ruled that with the finding of constructive dismissal it followed that the employee could not have abandoned his employment. The Court stressed that abandonment is incompatible with constructive dismissal.
The Court reiterated the principle that abandonment, as a just cause for termination, requires “a deliberate and unjustified refusal of an employee to resume his work, coupled with a clear absence of any intention of returning to his or her work.”9Veterans Security Agency Inc. v. Gonzalvo Jr., G.R. No. 159293, December 16, 2005, 514 PHIL 488-505 The following elements must therefore concur: (1) the failure to report for work or absence without valid or justifiable reason, and (2) a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor and being manifested by some overt acts.10Icawat v. National Labor Relations Commission, G.R. No. 133573, June 20, 2000, 389 PHIL 441-447
In the present case, the Court found no proof that the employee intended to sever his employment. On the contrary, the Court found strong indications of the employee’s desire to resume work. According to the Court, after the employee served his 10-day suspension, he reported for work but was instead told that he was being placed on floating status and instructed to wait for a call. The employee also sent SF Security Services, Inc. a letter dated May 19, 2014 to inform the latter that he was ready to report for duty, and a letter dated July 11, 2014 to inquire on the status of his employment. He also filed the complaint for constructive dismissal shortly after the lapse of his six-month floating status. For the Court, his immediate filing of the complaint sufficiently established his desire to return to work and negated any suggestion of abandonment. In addition, considering that the employee been in the service of SF Security Services, Inc. since 2006, or for eight years already before his dismissal in 2014, the employee could not have had such intention to abandon his work. The Court concluded that the totality of these circumstances negated the existence of a clear intention to sever the employment relation.
Further reading:
- Seventh Fleet Security Services, Inc. v. Loque, G.R. No. 230005, January 22, 2020.
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