FAILURE TO REASSIGN SECURITY OFF-DETAILED GUARDS AFTER THE LAPSE OF SIX MONTHS AMOUNTS TO CONSTRUCTIVE DISMISSAL

Soliman Security Services, Inc. vs. Sarmiento, et al.
G.R. No. 194649. August 10, 2016

Facts:

The case stemmed from the complaint filed by respondents security guards against Soliman Security Services, Inc. (agency) and Teresita Soliman for illegal dismissal; underpayment of salaries, overtime pay and premium pay for holiday and rest day; damages; attorney’s fees; illegal deduction and non-payment of ECOLA.

Respondents were hired as security guards by petitioner Soliman Security Services, Inc. and were assigned to Interphil Laboratories, working seven (7) days a week for twelve (12) straight hours daily. Respondents claimed that they sought a discussion of the nonpayment of their benefits with petitioner Teresita Soliman but the latter refused to take heed and told them to tender their resignations instead. According to respondents, on 21 January 2007, they received an order relieving them from their posts and since then, they were not given any assignments.

On the other hand, the agency’s version of the story hinges on an alleged placement of the respondents under a “floating status.” The agency admitted relieving the respondents from duty on 20 January 2007 but insists that the same was only done pursuant to its contract with client Interphil Laboratories. To support this claim, petitioners presented a standing contract with Astrazeneca Pharmaceuticals, Interphil’ s predecessor-in-interest. The contract contained stipulations pertaining to the client’s policy of replacing guards on duty every six (6) months without repeat assignment. The agency further posits that respondent guards were directed several times to report to the office for their new assignments but they failed to comply with such directives.

A review of the records reveals the following time line: ( 1) on 20 January 2007, the agency sent respondents notices informing them that they were being relieved from their current posts pursuant to a standing contract with Interphil Laboratories with directives for respondents to report to the office for their new assignments; (2) on 7 February 2007, the agency sent another letter addressed to Robis, directing him to report to the office for his new assignment; (3) on 22 February 2007, the first complaint for illegal dismissal was filed with the Labor Arbiter; (4) on 26 March 2007, a hearing before the Executive Labor Arbiter was conducted, where petitioner agency’s representative presented respondents an offer to return to work; (5) the agency sent respondents letters dated 24 and 26 April 2007, directing them to clarify their intentions as they have not been reporting to seek new assignments; (6) on 3 August 2007, respondents filed a Supplemental Complaint, the purpose of which was to anticipate the possibility that the agency might set up the defense of pre-maturity of filing of the constructive dismissal complaint; (7) respondents executed their respective complaint affidavits on 8 August 2007; (8) and finally after the parties submitted their respective position papers, the Executive Labor Arbiter rendered a decision on 4 January 2008.

LA Ruling:

Finding that respondents’ failure to comply with the Memoranda amounted to abandonment, the Labor Arbiter dismissed the complaint. The Labor Arbiter concluded that there can be no dismissal to speak of,. much less an illegal dismissal.

NLRC Ruling:

On appeal, the NLRC reversed the 4 January 2008 decision of the Executive Labor Arbiter, ultimately finding respondents to have been illegally dismissed. The NLRC ruled that the letters directing respondents to “clarify their intentions” were not in the nature of return-to-work orders, which may effectively interrupt their floating status.

The NLRC observed that the Memoranda received by respondents were but mere afterthoughts devised after the case for illegal dismissal was filed. The NLRC also put the agency to task for failing to traverse the guards’ averment that there were other employee-guards who stayed with the same client beyond the six-month term imposed. Aggrieved, the petitioners brought the case to the Court of Appeals, asking the court to issue an extraordinary writ of certiorari to reverse the NLRC decision.

CA Ruling:

Reiterating that the agency had no legitimate reasons for placing respondents on prolonged floating status, the appellate court affirmed the decision of the NLRC. Petitioners sought a reconsideration of the decision but the appellate court denied the same. Hence, the Petition for Review on Certiorari.

Issue:

Whether or not complainants were validly placed on floating status and whether constructive dismissal had set in.

SC Ruling:

The SC upheld the NLRC decision.

The Court is mindful of the fact that most contracts for services stipulate that the client may request the replacement of security guards assigned to it. Indeed, the employer has the right to transfer or assign its employees from one area of operation to another, “provided there is no demotion in rank or diminution of salary, benefits, and other privileges, and the transfer is not motivated by discrimination or bad faith, or effected as a form of punishment or demotion without sufficient cause.”

During that period of time when they are in between assignments or when they are made to wait for new assignments after being relieved from a previous post, guards are considered on temporary “off-detail” or under “floating status”. It has long been recognized that the industry practice of placing security guards on floating status does not constitute dismissal, as the assignments primarily depend on the contracts entered into by the agency with third parties and the same is a valid exercise of management prerogative.

However, such practice must be exercised in good faith and courts must be vigilant in assessing the different situations, especially considering that the security guard does not receive any salary or any financial assistance provided by law when placed on floating status.

Though respondents were not per se dismissed on 20 January 2007 when they were ordered relieved from their posts. The Court found that they were constructively dismissed when they were not given new assignments.

The crux of the controversy lies in the consequences of the lapse of a significant period of time without respondents having been reassigned. Petitioner agency faults the respondents for their repeated failure to comply with the directives to report to the office for their new assignments.

The SC ruled further that such notices were mere aftethoughts. The notices were allegedly sent to respondents on 24 and 26 April 2007, a month after the hearing before the Executive Labor Arbiter. By the time the notices were sent, a complaint for illegal dismissal with a prayer for reinstatement was already filed. In fact, the agency, through its representative, already had the chance to discuss new assignments during the hearing before the Labor Arbiter. Instead of taking the opportunity to clarify during the hearing that respondents were not dismissed but merely placed on floating status and instead of specifying details about the available new assignments, the agency merely gave out empty promises.

No mention was made regarding specific details of these pending new assignments. If respondent guards indeed had new assignments awaiting them, as what the agency has been insinuating since the day respondents were relieved from their posts, the agency should have identified these assignments during the hearing instead of asking respondents to report back to the office.

The agency’s statement in the notices -that respondents have not clarified their intentions because they have not reported to seek new assignments since they were relieved from their posts -is specious at best. As mentioned, before these notices were sent out, a complaint was already filed and a hearing before the Labor Arbiter had already been conducted. The complaint clarified the intention of respondents. Indeed, respondents’ complaint for illegal dismissal with prayer for reinstatement is inconsistent with the agency’s claim that respondents did not report for reassignment despite the notices directing them to do so. It is evident that the notices sent by the agency were mere ostensible offers for new assignments. It was intended to cover the illegality of the termination of respondents’ employment.

It is significant to note that had the reason for such failure to reassign respondents been the lack of service agreements for a continuous period of six (6) months, petitioner agency could have exercised its right to terminate respondents for an authorized cause upon compliance with the procedural requirements.