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[ G.R. No. 203185, December 05, 2018 ]



A. REYES, JR., J.:

This is a Petition for Review on Certiorari[1] under Rule 45 seeking to reverse and set aside the Decision[2] and Resolution[3] of the Court of Appeals (CA) in CA-G.R. SP No. 111875, which ordered Superior Maintenance Services, Inc., (Superior Maintenance) and Gustavo Tambunting (collectively, petitioners) to pay respondent Carlos Bermeo (Bermeo) separation pay for having been constructively dismissed from employment.

Antecedent Facts

Superior Maintenance is a manpower agency engaged in the business of supplying janitorial services to its clients. In 1991, it hired Bermeo as a janitor for its clients. Through the years, Bermeo was assigned to several establishments. He was last stationed at Trinoma Mall until the end of contract on March 30, 2008.[4]

On August 28, 2008, Bermeo was deployed to French Baker at SM Marikina, one of Superior Maintenance's clients; however, French Baker asked for a replacement upon learning that Bermeo was already 54 years old.[5]

On September 5, 2008, Bermeo filed a Complaint[6] before the Labor Arbiter (LA) against the petitioners for constructive dismissal with claim for separation pay.

Ruling of the LA

In a Decision[7] dated February 6, 2009, the LA found that Bermeo was constructively dismissed because no work was offered to him even during the pendency of the proceedings before it, such that the period of his floating status had already expired.[8] The LA disposed of the case as follows:
WHEREFORE, premises considered judgment is hereby rendered declaring that complainant was constructively dismissed. The respondent Superior Maintenance Security Services Inc. is ordered to pay complainant the amount of ONE HUNDRED EIGHTY THREE THOUSAND THREE HUNDRED NINETY ONE PESOS and/or 98/100 ([P]183,391.98) representing separation pay and his unpaid 13th month pay.

All other claims are dismissed for lack of merit.

Ruling of the NLRC

On appeal, the NLRC reversed the findings of the LA and ruled that Bermeo was not constructively dismissed from work. The NLRC concluded that the complaint was prematurely filed, as Bermeo's floating status was short of the six months required for it to ripen to constructive dismissal.[10] This notwithstanding, the grant of 13th month pay was retained in the absence of proof that Bermeo received the same. The fallo of the Decision[11] dated August 13, 2009 reads:
WHEREFORE, the decision appealed from is hereby MODIFIED by deleting the grant of separation pay. The grant of 13th month pay is AFFIRMED.

The NLRC also denied Bermeo's motion for reconsideration through a Resolution[13] dated October 6, 2009.

Bermeo then elevated the case to the CA through a Rule 65 petition for certiorari.

Ruling of the CA

On March 30, 2012, the CA promulgated its Decision[14] granting the petition. The decretal portion of its judgment states:
WHEREFORE, premises considered, the instant petition is GRANTED. The NLRC Decision dated August 13, 2009 and the resolution dated October 06, 2009 are hereby REVERSED and SET ASIDE. The Labor Arbiter's Decision dated 06 February 2009 is hereby REINSTATED.

In its Resolution[16] dated July 26, 2012, the CA denied petitioner's motion for reconsideration.


Whether Bermeo was constructively dismissed from work

Ruling of the Court

The petition is impressed with merit.

In Salvaloza v. NLRC,[17] temporary off-detail or floating status was defined as that "period of time when security guards are in between assignments or when they are made to wait after being relieved from a previous post until they are transferred to a new one."[18] The Court further explained:
It takes place when the security agency's clients decide not to renew their contracts with the agency, resulting in a situation where the available posts under its existing contracts are less than the number of guards in its roster. It also happens in instances where contracts for security services stipulate that the client may request the agency for the replacement of the guards assigned to it for want of cause, such that the replaced security guard may even be placed on temporary "off-detail" if there are no available posts under the agency's existing contracts.[19]
There is no specific provision in the Labor Code which governs the "floating status" or temporary "off-detail" of workers employed by agencies. Thus, this situation was considered by the Court in several cases[20] as a form of temporary retrenchment or lay-off, applying by analogy the rules under Article 301 (then Article 286) of the Labor Code,[21] viz:
ART. 301. [286] 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.
This situation applies not only in security services but also in other industries, as in the present case, as long as services for a specific job are legitimately farmed out by a client to an independent contractor.

In all cases however, the temporary lay-off wherein the employees cease to work should not exceed six months, in consonance with Article 301 of the Labor Code. After six months, the employees should either be recalled to work or permanently retrenched following the requirements of the law. Otherwise, the employees are considered as constructively dismissed from work and the agency can be held liable for such dismissal.[22]

In the present case, the CA held that Article 301 applies only when there is a bona fide suspension of the employer's operation of business. Citing Veterans Security Agency, Inc., et al., v. Gonzalvo, Jr., (Veterans),[23] the CA ruled that since there was no suspension in the petitioners' business operations, Article 301 does not apply to them and they cannot seek refuge in the six-month grace period given thereunder for them to give Bermeo a new assignment.[24]

However, Veterans is hardly relevant to the present case. First, in Veterans, the complainant was a security guard last deployed for assignment in January 1999; he filed his complaint for illegal dismissal only on September 29, 1999, which was eight months after he was pulled out from such assignment. Also, the complainant was withdrawn from his post of three years, following his complaint against his employer for non-payment of SSS contributions. Since tl1en, he was tossed to different stations until no assignment was given to him. His employer even concocted a story that he had to be assigned somewhere else because his spouse was a lady guard assigned to the same client, when in fact he was single. These circumstances indicate his employers' intention to constructively dismiss him from work. More importantly, while it was stated in Veterans that "Article 286 applies only when there is a bona fide suspension of the employer's operation of a business or undertaking for a period not exceeding six (6) months," it was further expounded that "in security agency parlance, being placed off detail or on floating status means waiting to be posted."[25]

Certainly, the pronouncement in Veterans was misconstrued by the CA when it ruled that there should be a bona fide suspension of the agency's business or operations. As stated earlier, Article 301 of the Labor Code was applied only by analogy to prevent the floating status of employees hired by agencies from becoming indefinite. This temporary off-detail of employees is not a result of suspension of business operations but is merely a consequence of lack of available posts with the agency's subsisting clients.

In the present controversy, when Bermeo filed his complaint for constructive dismissal on September 5, 2008, it was only a week after his unsuccessful assignment in French Baker on August 28, 2008. Even if the reckoning date would be his last assignment at Trinoma Mall, which ended on March 30, 2008, it is still less than the six-month period allowed by Article 301 for employees to be placed on floating status. Thus, the filing of his complaint for constructive dismissal is premature. Besides, it is unrebutted that the petitioners contacted Bermeo for a new assignment even after the latter has filed a complaint for constructive dismissal.[26] Clearly, the LA erred in concluding that the petitioners did not at any time offer any work assignment to Bermeo.[27]

WHEREFORE, the instant Petition is GRANTED. The Decision dated March 30, 2012 and Resolution dated July 26, 2012 of the Court of Appeals in CA-G.R. SP No. 111875 are hereby REVERSED and SET ASIDE. The Decision dated August 13, 2009 and Resolution dated October 6, 2009 of the National Labor Relations Commission in NLRC LAC No. 03-000925-09 (NLRC NCR Case No. 09-12499-08), are hereby REINSTATED.


Carpio, Senior Associate Justice, (Chairperson), Perlas-Bernabe, Caguioa, and Carandang,* JJ., concur.

* Designated Member per Special Order No. 2628, dated November 29, 2018.

[1] Rollo, pp. 10-37.

[2] Penned by Associate Justice Stephen C. Cruz with Associate Justices Vicente S.E. Veloso and Myra V. Garcia-Fernandez concurring; id. at 49-57.

[3] Id. at 46-47.

[4] Id. at 172-173.

[5] Id. at 173-174.

[6] NLRC rollo, pp. 1-2.

[7] Rollo, pp. 109-115.

[8] Id. at 112.

[9] Id. at 115.

[10] CA rollo,p. 17.

[11] Penned by Commissioner Angelo Ang Palana with Presiding Commissioner Herminio V. Suelo and Commissioner Numeriano D. Villena concurring; id. at 14-19.

[12] Id. at 19.

[13] Id. at 34-35.

[14] Penned by Associate Justice Stephen C. Cruz with Associate Justices Vicente S.E. Veloso and Myra V. Garcia-Fernandez concurring; rollo, pp. 49-57.

[15] Id. at 56.

[16] Id. at 46-47.

[17] Salvaloza v. NLRC, 650 Phil. 543 (2010).

[18] Id. at 557.

[19] Id.

[20] See Philippine Industrial Security Agency Corporation v. Dapiton and the National Labor Relations Commission, 377 Phil. 951, 961-962 (1999); Ptdo v. National Labor Relations Commission, 545 Phil. 507, 515-516 (2007); Megaforce Security and Allied Services, Inc., v. Lactao and National Labor Relations Commission, 581 Phil. 100, 105-106 (2008); Leopard Security and Investigation Agency v. Quitoy, et al., 704 Phil. 449, 457-458 (2013).

[21] Exocet Security and Allied Services Corporation v. Serrano, 744 Phil. 403, 412-413 (2014).

[22] Id. at 414.

[23] 514 Phil. 488, 500 (2005).

[24] Rollo, p. 54.

[25] Id. at 54-55.

[26] Id. at 105-106.

[27] Id. at 112.

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