REINSTATEMENT OF PREVENTIVELY SUSPENDED WORKER WHO WAS EXONERATED IS NOT SATISFIED BY MERE “DESIRE TO REINSTATE”

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Reinstatement of an employee who was cleared of charges that were the bases of preventive suspension is the duty of the employer failing which there can be constructive dismissal.

Thus, the SC held as follows:

Telus International Philippines, Inc. vs. De Guzman
G.R. No. 202676, December 4, 2019

Constructive dismissal; Mere desire to reinstate an employee who was placed under preventive suspension but thereafter exonerated does not satisfy the requirement of the law; Desire to reinstatement is not substantial compliance; Floating status; temporary off detail; Placing employees in a valid floating status presupposes that there are more employees than work; Verification and certification against forum shopping; Strict compliance with the Rule may be dispensed with in order that the ends of justice may be served thereby;

Facts:

Respondent Harvey De Guzman (De Guzman) was hired by Telus International Philippines, Inc. (Telus) as Inbound Sales Associate. His last post priot to the controversy was Senior Quality Analyst for DELL After Point of Sale (DELL, APoS).

De Guzman was charged with insulting or showing discourtesy, disrespect, or arrogance towards superiors or co-team members and abusive behavior language which is outside the bounds of morality in violation of Section 2, Disorderly conduct, Items 60 and 61 of Telus’ Code of Conduct. At the same time, he was placed on preventive suspension and was directed to submit a written explanation to answer the charges. He complied and submitted his written explanation.

After conducting an administrative hearing on the matter, Telus found De Guzman not liable for the offenses charged and did not impose any disciplinary sanction against him. Accordingly, De Guzman’spreventive suspension was lifted and he was fully compensated during the period.

Telus, however, decided to remove De Guzman from his current designation and transfer him to another practice. The management confirmed and requested his transfer citing operations reasons. The day after, De Guzman applied for paid vacation leave for 26 days citing personal reasons. Another profile interview schedule was sent but

Meanwhile, Telus scheduled De Guzman for a profile interview which coincided with his leave of absence. He allegedly notified his supervisory that he will not be able to attend the interview and did not give any reason for his inability to attend. Telus allegedly sent a Return to Work Order. However it found that De Guzman already filed a complaint for constructive dismissal with monetary claims before the NLRC.

For his part, De Guzman disputed the charges and claimed that his actions did not constitute any company violation to even merit an immediate preventive suspension. Thereafter, his suspension was lifted that that he was not liable for the incident. Nonetheless, he was to be transferred to a different account and to report the next day in Market Market, BGC Branch.

Thinking that everything was in order, De Guzman and Rally Boy eagerly report to their night shift schedule in Market Market. They waited per advise of Michael Sy, Telus’ Quality Analyst Manager, for Director Charlene Briones. At around one o’ clock in the morning they received a text message from Joey asking them to report to Ortigas office instead. Despite the inconvenience, they left Market Market and went to the Ortigas office. Thereat, they were told by Joey Caspellan, QA Supervisor, that Sy made a mistake in instructing them to report for work and that Sy would still need to find an account for them. Hence, they did not have any work yet despite the lifting of their suspension.

De Guzman was then forced to apply for a vacation leave, while Sy was still looking for an account for them. In his desire to keep his job and to receive his salary, he exhausted his earned vacation leaves and used up 26 days. After all his vacation leaves were spent and a month after his preventive suspension, De Guzman inquired from Sy when he can report for work. He was told that he would still report to him but since there was no endorsement yet for another program, he was not yet required to return to work.

As it is, he was considered as a “floater” and he will not get paid unless his floating status has been lifted. De Guzman was devastated and was surprised tha the was suddenly considered as a “floater.” Thereafter, he received a message from Sy that there was a temporary endorsement in the Quality Analyst Core and he should report for a profiling interview and that it was necessary to pass the same in order for him to get the position.

De Guzman asked Sy why he needed to undergo such interview considering that he was not a new hire or a job applicant. Sy responded that passing the interview is a must as he was already considered as “floater.” He was told that during his “floating” status he will not be compensated.

Believing that he need not undergo such process and that he must be reinstated to his former position immediately, De Guzman did not report for the interviews. He alleged that he was already considered a regular employee having been with the company for four years with an impeccable record and even promoted several times prior to such incident.

The foregoing series of events led to De Guzman’s filing of a complaint before the NLRC for constructive dismissal with money claims against Telus and Sy (Telus, et al.)

LA Ruling:

The Labor Arbiter (LA) adjudged Telus guilty of constructively dismissing De Guzman.

The LA held that since De Guzman was not immediately reinstated to his former position after his preventive suspension despite a finding that he was not guilty of the offense charged, coupled with the fact that he was transferred and had to undergo and pass the profile interview before he may be given a new account, conclusively supported the finding of constructive dismissal on the part of Telus.

Aggrieved, Telus filed its Memorandum of Appeal before the National Labor Relations Commission (NLRC).

NLRC Ruling:

The NLRC overturned the ruling of the LA.

The NLRC found that De Guzman failed to prove by substantial evidence that he was constructively dismissed. As borne out by the records, there was no termination that transpired. Telus was planning to reinstate him to his former position as QA Analyst after his preventive suspension.

The NLRC further held that it was De Guzman who ceased working with Telus after he opted not to report after the expiration of his vacation leave and because of this refusal to undergo the profiling interview for his new account/practice.

Unsatisfied with the ruling of the NLRC, De Guzman filed a Motion for Reconsideration but it was denied in the NLRC’s Resolution. Thus, he filed a Petition for Certiorari before the Court of Appeals (CA).

CA Ruling:

The CA ruled that De Guzman was constructively dismissed.

The CA found the NLRC committed grave abuse of discretion when it adjudged Telus not guilty of illegally dismissing De Guzman.

The CA agreed with the findings of the LA that indeed De Guzman was constructively dismissed. The CA ratiocinated that the failure of Telus to immediately reinstate De Guzman to his former position after his exoneration marked his constructive dismissal. Worse, he was placed on floating status which was a discriminatory act that buttressed the act of dismissal by Telus.

Telus filed its Motion for Reconsideration but it was denied. Hence, it filed the petition for review on certiorari before the Supreme Court (SC).

Issue/s:

Whether or not the employer has the duty to immediately reinstate a preventively suspended employee to his former position who was found not liable for the offense charged

Whether or not mere desire to reinstate an employee to his former position is substantial compliance and satisfies the requirement of the law

Whether or not placing an employee on “floating status” is valid in the absence of any valid justification or proof that there was a deficit of account that bars the immediate transfer of employee or that the company was sustaining losses

SC Ruling:

The SC denied the petition for review on certiorari.

The SC held that De Guzman’s security of tenure was disregarded and his employment was illegally terminated by Telus. The series of acts by the company seriously flouted De Guzman’s right as a tenured employee.

The series of actions done by Telus manifests that De Guzman was terminated in disguise and such actions amount to constructive dismissal. In upholding the findings of the CA, the SC held that after finding De Guzman not liable for the offense charged, Telus, et al. did not immediately reinstate him to his former position. Telus, et al. informed De Guzman that he was being transferred to a new account and directed him to report to the Telus’ branch office at Market, Market, Global City, Taguig City. However, after a few hours, they asked him to just go home and wait since they needed time to search for his account.

While waiting for the promised new account, De Guzman was compelled to utilize his leave credits. After his leave credits were consumed, Telus, et al. placed him on a floating status. More than one month from his exoneration and the lifting of the suspension, Telus, et al. have not assigned him a new account. Finally, they required him to undergo a profile interview supposedly to determine which account he would best fit in. Sy informed him that he should pass the interview in order to be endorsed to his new account.

The SC held that the conclusion is all too clear that Telus fostered a working environment that was hostile, discriminatory, unreasonable, and inequitable that naturally compelled De Guzman to give up his employment thereat to avoid the difficulties he had to face just to keep his employment. The actions of Telus show that De Guzman was actually subsequently penalized with a much graver consequence than the supposed preventive suspension that he had undergone.

If at all, Telus conveniently used “management prerogative” to mask its adverse actions and washed its hands by conveniently claiming that it timely lifted the preventive suspension of De Guzman. It maintained that it did not at all penalize him and in fact exonerated him and paid his salaries. It denied dismissing him and further contended that it actually desired him to be reinstated to his former post but had to transfer him because of operation requirements. Telus handily turned the tables on De Guzman and made it appear that it was due to his hardheaded refusal that barred his reinstatement.

It should be noted that a mere desire to reinstate an employee to his/her former position does not satisfy the requirement of the law. Such cannot amount to substantial compliance on the part of the employer nor will it effectively negate the idea that the employee was not being dismissed after the period of preventive suspension. To allow “desire to reinstate,” especially when there is no bar at all to actual reinstatement, as substantial compliance to the need to revert the employee to his/her former post without diminution in rank or in pay would defeat the very essence of the constitutional guarantee of security of tenure.

Employees who had undergone preventive suspension and were found innocent of the offense charged would be at the mercy of the employer to be brought back to his/her former working post and status when in the first place, he/she had a vested right to the position from which he/she was ousted.

The SC did not likewise subscribe to the argument of the company that placing De Guzman on “floating status” was perfectly acceptable under the labor laws. Contrary to the stance of Telus, the floating status principle does not find application in the instant case. While it may be argued that the nature of the call center business is such that it is subject to seasonal peaks and troughs because of client pullouts, changes in clients’ requirements and demands, and the myriad other factors, still, the necessity to transfer De Guzman to another practice/account does not depend on Telus’ third party-client/contracts.

When the controversy arose, Telus had several clients in its roster to which it can easily assign De Guzman as Quality Analyst without any hindrance. As earlier admitted by Telus, profiling interviews were not a condition precedent to the transfer. Moreover, after the lifting of his preventive suspension, Telus had several job vacancy postings for the position of Quality Analysts, the very position previously occupied by De Guzman.

The SC held further that while there is no specific provision in the Labor Code which governs the “floating status” or temporary “off-detail” of workers employed by agencies, it is implicitly recognized in Article 301 of the Labor Code which speaks of situations of temporary retrenchment or lay-off due to valid operation issues. The situation applies not only in security services but also in other industries.

Moreover, the SC held, citing ICT Marketing Services, Inc. vs. Sales, that placing employees in a valid “floating status” presupposes that there are more employees than work. In the instant case, Telus did not provide any valid justification or presented proof that there was indeed a deficit of account that bars the immediate transfer of De Guzman or that the company was sustaining losses that would justify placing De Guzman on floating status. Hence, the unwarranted acts of Telus evidently constitute proof of the constructive dismissal of De Guzman.