Constructive dismissal results if the floating status of the security guard extends beyond six (6) months.
Thus, the security guard must be assigned to a specific or particular client if notice to return to work is sent during the floating period. A general return-to-work order does not suffice.
Ravengar G. Ibon vs. Genghis Khan Security Services and/or Marietta Vallespin
G.R. No. 221085, June 19, 2017
Ravengar G. Ibon (Ibon) was employed as a security guard by Genghis Khan Security Services (Genghis Khan Security). He was initially assigned to a certain Mr. Solis in New Manila, Quezon City.
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He was transferred to the 5th Avenue Condominium. Later, he was transferred to the Aspen Tower Condominium which was his last duty on October 4, 2010. Thereafter, Genghis Khan Security promised to provide him a new assignment, which, however, did not happen.
On May 10, 2011, Ibon filed a Complaint against Genghis Khan Security for illegal dismissal and money claims. He alleged that he was no longer assigned to a new post after his last duty on October 4, 2010, among others.
For his part, Genghis Khan Security denied that Ibon was placed on a floating status for more than six (6) months. It claimed that he was suspended on October 4, 2010 for sleeping on the job. Genghis Khan Security added that Ibon was endorsed to another client for re-assignment, which the latter refused because his license was due for renewal. Since then, Ibon failed to report for work.
Sometime in November 2010, Ibon went to Genghis Khan Security ‘s office to claim his 13th month pay, but the same was not given to him because it was not yet due. Genghis Khan Security then received a call from the Department of Labor and Employment (DOLE) regarding Ibon’s claim for 13th month pay, which was later on settled during the proceedings before the DOLE.
It then sent letters to Ibon requiring him to report for work, but he did not show up. Hence, Genghis Khan Security was surprised to receive summons regarding the complaint for illegal dismissal.
The Labor Arbiter (LA) declared Ibon to have been constructively dismissed because of Genghis Khan Security ‘s failure to put him on duty for more than six (6) months. It ordered Genghis Khan Security to pay Ibon backwages from the effective date of the constructive dismissal.
The LA also granted Ibon’s prayer for separation pay in view of the parties’ strained relationship, as well as his claims for wage differential, service incentive leave pay and reimbursement of his cash bond.
Aggrieved, Genghis Khan Security appealed to the NLRC.
The NLRC reversed and set aside the decision of the LA.
It opined that there was no constructive dismissal because Genghis Khan Security did not intend to indefinitely place Ibon on a floating status. The NLRC noted that Genghis Khan Security sent letters to Ibon requiring him to report back to work within the six-month period.
It added that Genghis Khan Security offered to reinstate Ibon during the proceedings before the LA, but the said offer was rejected by the latter. Further, the NLRC pointed out that even if the letters were not received by Ibon, Genghis Khan Security ‘s act of sending them showed that it did not wish to sever the employer-employee relationship.
It, nevertheless, sustained the money claims awarded by the LA. Ibon moved for reconsideration, but his motion was denied by the NLRC.
Undaunted, Ibon filed a petition for certiorari before the CA.
The CA affirmed the NLRC finding that Ibon was not constructively dismissed. It wrote that the evidence on record showed that Ibon was required to report back to work and that on October 21, 2010, he was offered a new assignment, which he refused.
The CA concluded that there was no dismissal to speak of as it was Ibon who manifested his lack of interest in going back to work. Hence, the petition before the SC.
Whether or not the notice to report to work by a security agency to a security guard during the 6-month off-detail period should include deployment to specific client to prevent constructive dismissal from setting in.
The SC found the petition meritorious.
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The SC held that in Reyes vs. RP Guardians Security Agency, it was ruled that temporary off-detail of a security guard is generally allowed, but is tantamount to constructive dismissal if the floating status extends beyond six (6) months.
Citing Tatel v. JLFP Investigation (JFLP Investigation), the Court held that the SC in such case 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 JFLP Investigation reveals that:  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  the security guard must be assigned to a specific or particular client. A general return-to-work order does not suffice.
Referring to Exocet Security and Allied Services Corporation vs. Serrano (Exocet Security), the SC held that the employer was absolved 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.
Applying the foregoing to the present controversy, Genghis Khan Security should have deployed Ibon to a specific client within six (6) months from his last assignment. The correspondences allegedly sent to Ibon merely required him to explain why he did not report to work.
He was never assigned to a particular client. Thus, even if Ibon actually received the letters of Genghis Khan Security, he was still constructively dismissed because none of these letters indicated his reassignment to another client.
Unlike in Ecoxet Security and JFLP Investigation, Genghis Khan Security is guilty of constructive dismissal because it never attempted to redeploy Ibon to a definite assignment or security detail.