499 Phil. 215
SANDOVAL-GUTIERREZ, J.:
“This is in response with the inspection done last Friday November 13, 1998 at 10:30AM by Ms. Remy Tumamao of the Chief security office.On November 23, 1998, petitioner security agency issued a memorandum to respondent directing him to report to the FEBTC main office in Malabon City for investigation.[4] The following day, or on November 24, petitioner issued a Relief Order[5] ordering him to report to its head office for further clarification of his status, thus:
I was not able to use my perching cap at that time because my hair is still wet. I was in complete attire before the incident but when I received an emergency call from our armor crew who, on that time has a cash transfer to Central Bank Tuguegarao Cagayan, I was informed that our armor car had a mechanical trouble. So even if it was raining, I called our Mechanic immediately residing beside our branch.
Thank you for your kind consideration on this matter.
SG. PERCIVAL AGUINALDO
HEAD GUARD”
“(Y)ou are hereby relieved from your post at FEBTC Br., Santiago City effective 24 November 1998.Also on November 24, Antonio B. Banastas, Jr., Branch Head of FEBTC, Santiago City, wrote a Memorandum[6] to petitioner requesting the retention of respondent in the same office, thus:
Report to PISACORP head Office for further clarification of your status.
By order: x x x”
“MEMORANDUM:However, petitioner, in its letter[7] dated December 2, 1998, denied the above request, thus:
F O R : COL. MARCIAL CONACO, JR.
ASSISTANT VICE PRESIDENT
SECURITY OFFICE
S U B J E C T: WAIVER OF RELIEVE ORDER TO
SECURITY GUARD PERCIVAL
AGUINALDO
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This is relative to the spot inspection report of Ms. Remy Tumamao on November 13, 1998.
On the morning of November 13, 1998 our armoured car was on its way to deliver cash to Central Bank in Tuguegarao. At around 10:00 A.M., our armoured car personnel called up Mr. Aguinaldo and informed him that they incurred a mechanical trouble. Upon receiving the message, Mr. Aguinaldo went out to fetch or call a mechanic. Since it was raining on that morning, he did not wear his perching cap because his hair was still wet. It was during that moment when Ms. Tumamao saw him in the branch.
In view of the degree of offense committed by our Security Guard, he should be given a written reprimand and not relieved from his post since this was his first offense.
Mr. Aguinaldo has been with the branch for ten years, he is a person of good moral character and has performed his job above our expectations.
In view of this, I would like to seek your approval for the retention of Mr. Aguinaldo.
Thank you.
(Sgd.) ANTONIO B. BANASTAS, JR.
BRANCH HEAD”
“Please be advised that your request of retention at your former post (FEBTC Santiago) was denied. In view hereof, please report to Supervisor Lary Lopez for reassignment while you are reserved to the new bank branch that will soon to operate at Santiago.Forthwith, petitioner assigned respondent temporarily to FEBTC Malabon City Branch pending the opening of another Branch in Santiago City where according to said petitioner, he will be re-assigned.
Please be guided accordingly.PEPITO C. NOVERAS
Operations Officer”
“Did the Executive Labor Arbiter err in not ruling that the complainant was illegally dismissed from employment?On May 19, 2000, petitioner filed a motion for reconsideration. Surprisingly, it was granted by the NLRC in its Decision[10] dated August 29, 2000 thus:
Based on the memorandum dated December 2, 1998, respondent PISAC did not put the complainant on a floating status. Rather, it gave him a ‘new assignment’ as a reserved (security guard) for the new bank branch that was supposedly going to operate soon in Santiago. Clearly, what was given to him was a mockery of an assignment. There was no date given for his assumption of his ‘new’ post. There was no assurance that it would ever be realized. In fact, there is not even a single reference to the above-mentioned ‘new agreement’ in any of the pleadings of respondent PISAC. Respondent PISAC simply ignored every reference to the memorandum dated December 2, 1998 that the complainant made in his own pleadings.
Respondent PISAC’s act of giving the complainant an assignment in the future amounts to an indefinite suspension. It is settled that an indefinite suspension is tantamount to a constructive dismissal (Oriental Mindoro Electric Cooperative, Inc. vs. NLRC (246 SCRA 294). Under these circumstances, the complainant would ordinarily be entitled to reinstatement with full backwages (Article 279, Labor Code). However, since he prayed for separation pay in the complaint, he should be awarded separation pay in lieu of reinstatement and of course, full backwages.
WHEREFORE, the decision is hereby reversed. Respondent Philippine Industrial Security Agency Corp. is hereby ordered to pay the complainant his full backwages from November 24, 1998 to the date of the finality of this decision and separation pay amounting to P59,400.00 (P5,400 x 11 years = P59,400.00).
SO ORDERED.”
“WHEREFORE, the instant Motion for Reconsideration is GRANTED. Our Decision of 29 March 2000 is hereby RECONSIDERED and SET ASIDE. The 3 November 1999 Decision of Executive Labor Arbiter Ricardo N. Olairez dismissing the case is hereby REINSTATED.Respondent then filed a motion for reconsideration but was denied by the NLRC in its Resolution[11] dated December 7, 2000.
SO ORDERED.”
“The petition is impressed with merit.Petitioner filed a motion for reconsideration but was denied in a Resolution dated September 11, 2001.[15]
Petitioner claims that his reassignment to another post that was not yet open amounted to constructive dismissal. We agree.
A constructive dismissal is a quitting because continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank and a diminution in pay (Philippine Japan Active Carbon Corp. vs. NLRC, G.R. No. 83239, March 8, 1989). As further explained in Jarcia vs. NLRC (266 SCRA 97 [1997]):‘In case of constructive dismissal, the employer has the burden of proving that the transfer and demotion of an employee are for valid and legitimate grounds such as genuine business necessity. Particularly, for a transfer not to be considered a constructive dismissal, the employer must be able to show that such transfer is not unreasonable, inconvenient, or prejudicial to the employee; nor does it involve a demotion in rank or a diminution of his salaries, privileges and other benefits. Failure of the employer to overcome this burden of proof, the employee’s demotion shall no doubt be tantamount to unlawful constructive dismissal.’In the case at bar, petitioner was validly relieved from his post for violating a company policy. The petitioner did not contest this violation as he in fact admitted to committing it during the investigation, though with a valid and plausible explanation. What tarnishes the whole scene is the fact that after petitioner was relieved from his old post in Santiago City, Isabela, he was temporarily reassigned to the head office of private respondent PISA in Malabon, Metro Manila pending the opening of another bank in Isabela (Rollo, p. 60). This act is unfair and downright oppressive considering that petitioner, along with his family, is a long-time resident of Santiago City, Isabela. The transfer would mean that petitioner would be away from his family or that he would bring his entire family to Manila entailing expenses. Further, it remains unclear if petitioner would be reassigned back to Isabela, as the said plan remains ambiguous for it is not clearly shown when the said reassignment would take place. In the Notice given to petitioner, it is stated that his reassignment to Manila is good for 179 days and maybe renewed after its expiration. We cannot give evidentiary weight to private respondent PISA’s claim that petitioner will be reassigned back to another branch in Isabela as no evidence to that effect was offered.
While it is true that an employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, layoff of workers and the discipline, dismissal and recall of workers (San Miguel Brewery Sales vs. Ople, G.R. No. 53515, February 8, 1989), and this right to transfer employees forms part of management prerogatives, the employee’s transfer should not be unreasonable, nor inconvenient, nor prejudicial to him. It should not involve a demotion in rank or diminution of his salaries, benefits and other privileges, as to constitute constructive dismissal (PT&T vs. Laplana, G.R. No. 76645, July 23, 1991).
Hence, petitioner cannot be faulted for filing an illegal dismissal case. While the case does not directly fall under the traditional concept of ‘illegal dismissal’ case, We hold that it partakes of the nature of constructive dismissal. In Philippine Advertising Counselors, Inc. vs. NLRC, 263 SCRA 395 (1996) and Masagana Concrete Products vs. NLRC, 313 SCRA 576 (1999), the Supreme Court keenly made this observation, to wit:‘Constructive dismissal, however, does not always involve such kinds of diminution, an act of clear discrimination, insensibility, or disdain by an employer may become so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment.’As explained earlier, this Court is fully aware of the right of management to transfer its employees as part of management prerogative. But like all rights, the same cannot be exercised with unbridled discretion. The managerial prerogative to transfer personnel must be exercised without grave abuse of discretion, bearing in mind the basic element of justice and fair play.
However, private respondent Far East Bank cannot be held liable for petitioner’s backwages as it is not the employer of the petitioner.
WHEREFORE, the petition is GRANTED. The NLRC Decision dated August 29, 2000 is hereby SET ASIDE. Private respondent PISA is hereby ordered to REINSTATE petitioner to his former position without loss of seniority rights and privileges and to PAY his backwages computed from the time the same were withheld from him.”[14] (Emphasis supplied)
Petitioner primarily contends that respondent’s re-assignment to Malabon City is only temporary, otherwise, he would have been placed in a “floating status.” Moreover, such re-assignment is a valid exercise of management prerogative done in good faith and with valid reason.
- The questioned Decision and Resolution of the Court of Appeals “are manifestly not in accord with law and established jurisprudence;” and
- The petition is “dismissible outright for having been filed in violation of the Rule against forum-shopping.”[16]
“x x x the managerial prerogative to transfer personnel must not be exercised with grave abuse of discretion, bearing in mind the basic elements of justice and fair play. Having the right should not be confused with the manner in which that right is exercised. Thus, it cannot be used as a subterfuge by the employer to rid himself of an undesirable worker. x x x”WHEREFORE, the petition is hereby DENIED. The assailed Decision of the Court of Appeals is AFFIRMED. Costs against petitioner.