The rule is settled that “off-detailing” is not equivalent to dismissal, so long as such status does not continue beyond a reasonable time and that it is only when such “floating status” lasts for more than six months that the employee may be considered to have been constructively dismissed. An employee who is on off-detail status is not dismissed from service.
Thus, the SC held in the following case:
Bognot vs. Pinic International (Trading) Corporation/CD-R King, et al.
G.R. No. 212471, March 11, 2019
Premature filing of illegal dismissal; Off-detail status; Putting an employee on floating status is also applied to other industries other than security agencies; Premature filing of the illegal dismissal case deprived the company the latitude given to it by law to re-assign employee to another client; An employee who was pulled out from client’s branch assignment to be transferred to another is not dismissed from service; The pull out does not amount to constructive dismissal
Petitioner Maria Luz Avila Bognot (Bognot), alleges that Respondents Pinic International Trading Corporation/CD-R King, Nicholson C. Santos, and Henry Ngo (Pinic, International, et al.) employed her as a branch head in 2003.
Bognot was assigned to different CD-R King branches, the last of which was at Robinson’s Place Manila. As branch head, she was responsible for the inventory, adjustment and monitoring of stocks; deposit of daily sales to the bank; and supervision of store operations.
Sometime in April, she was accused of allowing unauthorized persons to enter CD-R King’s bodega at Robinson’s Place, for which she was suspended for three days. On May 7, 2010, Bognot was allegedly informed that she would be pulled out of the branch for no given reason and was told not to report for work anymore.
According to Bognot, she was also threatened to be brought to the police on false charges of theft. On May 9, 2010, Bognot was pulled out from the branch. Few days thereafter, or on May 13, 2010, Bognot filed the illegal dismissal complaint against Pinic International, et al.
For their part, Pinic International, et al. aver that sometime in 2004, the company entered into a service contract agreement with People’s Arm Manpower Services, Inc. (PAMS). Pursuant to the said contract, PAMS assigned Bognot to Pinic International, et al.’s company to perform sales and marketing services. Bognot’s salary and other benefits such as Social Security Service (SSS) were given by PAMS.
It was also PAMS which deals with disciplinary measures and controls Bognot’s work matters. Hence, contrary to Bognot’s claim, Pinic International, et al. did not have the power to dismiss her from employment. For this reason, PAMS was impleaded as a co-respondent upon Pinic International, et al.’s motion. Notably, PAMS presented the same allegations and arguments as those of Pinic International, et al.
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Pinic International, et al. allege that sometime in the early part of 2010, they notified PAMS of some issues that they encountered due to Bognot’s actions and/or inactions. Acting upon said complaints from Pinic International, et al., PAMS Human Resource Manager and Marketing Officer issued memoranda, requiring Bognot to submit a written explanation on the report that she allowed strangers to enter the restricted area of the store premises and that she failed to organize and display store merchandise.
Thereafter, it was discovered that Bognot’s negligence led to a huge discrepancy in CD-R King’s inventory. This prompted Pinic International, et al. to submit an incident report to PAMS. Thus, PAMS issued another memorandum to Bognot, requiring her to explain the reported complaint. Bognot submitted her handwritten response. PAMS was, however, not satisfied with Bognot’s explanation. Thus, considering the contractual liabilities to Pinic International, et al. that PAMS may incur due to Bognot’s infractions, PAMS decided to recall Bognot’s assignment with Pinic International, et al.
Pinic International, et al., thus, maintain that Bognot was never dismissed from work but was merely pulled out from their company to be re-assigned by PAMS to another client.
The Labor Arbiter (LA) dismissed the complaint, finding that, in the first place, there was no employer-employee relationship between Bognot and Pinic International, et al.
Instead, records show that it was PAMS which engaged Bognot’s services, paid her salary and benefits, and had the power to discipline and control her conduct in accordance with its undertaking in the service contract agreement. Bognot’s dismissal, if at all, cannot be imputed against Pinic International, et al. according to the LA.
Proceeding to the issue of illegal dismissal, the LA found the records to support Pinic International, et al.’s contention that Bognot was never dismissed. Bognot was merely pulled out from Pinic International, et al. to be re-assigned to another PAMS client. Bognot, however, filed the illegal dismissal case only four days after her pull out for re-assignment, which makes the institution of the complaint premature.
On appeal, the National Labor Relations Commission (NLRC) affirmed the LA’s ruling in its entirety.
After re-evaluating the arguments and evidence presented by both parties, the NLRC found that indeed, Bognot was under the employ of PAMS, not of the Pinic International, et al., and more importantly, there was no dismissal from employment to speak of at the time of the institution of the complaint for illegal dismissal. The NLRC also upheld the grant of the refund of cash bond and unpaid salaries in favor of Bognot.
In its assailed Decision, the CA sustained the findings and conclusion of the NLRC altogether. The CA denied Bognot’s motion for reconsideration.
Hence, the Petition before the SC.
Whether or not the pull out of Bognot from client’s branch to be transferred to another branch to avoid contractual liabilities with client amounted to dismissal from service
Whether or not the pull out amounted to constructive dismissal
The SC denied the petition.
The SC held that it is not unaware of the rule that in illegal dismissal cases, the employer has the burden of proving that the termination was for a valid or authorized cause. However, there are cases wherein the facts and the evidence do not establish prima facie that the employee was dismissed from employment.
Thus, it is likewise incumbent upon the employees that they should first establish by substantial and competent evidence the fact of their dismissal from employment. Fair evidentiary rule dictates that before employers are burdened to prove that they did not commit illegal dismissal, it is incumbent upon the employee to first establish by substantial evidence the fact of his or her dismissal.
In this case, the established facts and evidence show that Bognot was not dismissed from employment. The records are clear that Bognot was merely pulled out from Pinic International, et al.’s Robinson’s Place Manila branch to be given another assignment. Bognot was pulled out from her assignment and instructed to be ready for the next company assignment” that PAMS will give her. However, only four days thereafter, Bognot already filed this illegal dismissal case. Clearly, at that point, there was no dismissal to speak of yet.
Traditionally invoked by security agencies when guards are temporarily sidelined from duty while waiting to be transferred or assigned to a new post or client, the same principle in temporary displacement, “off-detailing” or putting an employee on floating status is also applied to other industries.
The rule is settled that “off-detailing” is not equivalent to dismissal, so long as such status does not continue beyond a reasonable time and that it is only when such “floating status” lasts for more than six months that the employee may be considered to have been constructively dismissed. A complaint for illegal dismissal filed prior to the lapse of the said six-month period and/or the actual dismissal of the employee is generally considered as prematurely filed.
Such principle finds legal basis in Article 286 of the Labor Code, which allows employers to put employees on floating status for a period not exceeding six months as a consequence of a bona fide suspension of the operation of a business or undertaking. As found by the tribunals and court a quo, this Court finds no fault against PAMS in opting to suspend its undertaking with Pinic International, et al. by pulling out Bognot from the latter’s branch so as not to incur contractual liabilities to Pinic International, et al. This is a legitimate concern, which does not, in any way, indicate any bad faith or arbitrariness on PAMS’ part
Bognot’s unsupported theory that the pull out is actually a form of constructive dismissal failed to persuade the Supreme Court. The right of employees to security of tenure does not give them vested rights to their positions to the extent of depriving the management of its prerogative to change their assignments or to transfer them. Absent showing of illegality, bad faith, or arbitrariness, courts often decline to interfere in employers’ legitimate business decisions considering that our labor laws also discourage intrusion in employers’ judgment concerning the conduct of their business.
PAMS had a bona fide reason to re-assign Bognot to another client. To be sure, the premature filing of the illegal dismissal case deprived PAMS the latitude given to it by law to re-assign Bognot to another client.