Carique vs. Philippine Scout Veterans Security and Investigation Agency, Inc.

A security guard placed on floating status or temporary off-detail for not more than six months is not deemed dismissed, and the guard's unjustified refusal of new assignments offered within that period negates a claim of illegal dismissal.

Petitioner was hired as a security guard by respondent agency on November 8, 1990. The agency, owned by respondent Santiago and managed by respondent Bona, implemented a rotation policy requested by its clients, under which security guards were relieved from posts and reassigned to other client locations. Petitioner had been periodically transferred to different clients since 1992 without objection. His last assignment was at National Bookstore — Rosario, Pasig Branch.

On November 8, 1990, petitioner Gerardo A. Carique was hired as a security guard by respondent Philippine Scout Veterans Security and Investigation Agency, Inc., owned by respondent Severo Santiago and managed by respondent Ricardo Bona. Over the next 12 years, petitioner was assigned and periodically transferred to various client establishments of the agency, the last being at National Bookstore — Rosario, Pasig Branch.

On October 28, 2002, petitioner was relieved from that post and replaced by Security Guard Roel Juan pursuant to a rotation policy implemented by respondent agency at the request of its clients. According to petitioner, he reported to the agency's office on October 30, 2002 to inquire about his next assignment but was told none was available. He continued reporting and was repeatedly advised to wait. On March 9, 2003, he received a memorandum requiring him to explain his Absence Without Leave (AWOL) since November 30, 2002. He submitted an explanation, but no assignment was given. On May 5, 2003, he returned and was compelled to acknowledge receipt of a memorandum dated April 30, 2003 requiring him to explain his unjustified refusal to accept posts offered to him and his AWOL. Attached were three Special Security Detail (SSD) orders directing him to report for assignment at National Bookstore — SM Bicutan, Taguig on March 11, 2003, and at East Asia Diesel Power Corporation and Country Space Condominium on March 17, 2003. Petitioner refused to acknowledge receipt, contending the SSDs were fabricated to evade liability. These events prompted him to file an illegal dismissal complaint on May 6, 2003.

Respondents denied dismissing petitioner, asserting that relief under the rotation policy merely placed him on floating status while awaiting reassignment. They presented SSDs dated March 11, 2003 and March 17, 2003 as evidence that new assignments had been offered approximately five months after his relief, and that petitioner refused both offers without justification. Two agency officers — Duty Officer Ermelo Basal and Investigator General Fernando Amor — executed sworn statements attesting that petitioner had refused the postings. Petitioner, in reply, pointed out discrepancies between the SSDs he submitted and those presented by respondents, suggesting irregularity in their issuance, but did not categorically deny receiving the detail orders. Notably, he adopted the SSDs as part of his own evidence before the Labor Arbiter.

The Labor Arbiter found for petitioner, declaring him illegally dismissed and awarding separation pay, backwages, and refund of cash bond. The NLRC reversed, finding that petitioner had refused new assignments and was not dismissed. The CA affirmed the NLRC, holding that petitioner's floating status did not exceed six months and that he had been given new assignments within five months of relief but refused them.

• Illegal Dismissal: Petitioner maintained that the evidence he adduced before the Labor Arbiter compels the conclusion that he was illegally dismissed, respondents' evidence notwithstanding. He asserted that his 12 years of service and the filing of the complaint belied any intention to abandon employment.
• Constructive Dismissal — Floating Status: Petitioner argued that he was constructively dismissed because respondent agency's alleged offerings of new assignments did not effectively toll the six-month floating period, since his relief did not arise from a bona fide suspension of the company's operations as contemplated in Article 286 of the Labor Code. The reason for his relief — the rotation policy — was for regulatory purpose only and presupposed available assignments under other existing service contracts.
• Reliever Positions: Petitioner insisted that the new assignments offered were temporary "reliever" positions that did not reinstate him to his former position with regular status, and that his refusal was therefore justified.
• Fabrication of SSDs: Petitioner contended that the SSDs issued by respondent agency were fabricated and were merely prepared to evade liability, citing apparent discrepancies and conflicting entries between the SSDs he submitted and those presented by respondents.

• No Dismissal: Respondents denied having dismissed petitioner, let alone illegally, and maintained that relief under the rotation policy did not amount to termination but merely placed him on floating status while awaiting a new assignment.
• Refusal of Assignments: Respondents argued that petitioner was offered new assignments evidenced by SSDs dated March 11, 2003 and March 17, 2003, but refused both without any justifiable reason, as attested to by Duty Officer Basal and Investigator General Amor in their sworn statements.
• Labor Arbiter Error: Respondents averred that the Labor Arbiter gravely erred in relying on petitioner's baseless allegations and disregarding their convincing countervailing evidence consisting of the SSDs and sworn statements.

• Illegal Dismissal: Whether petitioner was illegally dismissed from employment, either actually or constructively, when he was relieved from his post under a rotation policy and subsequently refused new assignments offered by respondent agency.

• Illegal Dismissal: No. Petitioner was not illegally dismissed. He was validly placed on floating status not exceeding six months, and his unjustified refusal of new assignments offered within that period negated any claim of dismissal. The rotation policy was a valid exercise of management prerogative, and petitioner was estopped from challenging it after years of acquiescence.

• Illegal Dismissal: The burden of proving illegal dismissal rests on the employee, who must establish by substantial evidence positive and overt acts indicative of a manifest intention to dismiss. Petitioner failed to discharge this burden, anchoring his claims on unfounded and unproven allegations. The evidence on record showed that petitioner was relieved from his last assignment due to a client-requested rotation policy, placing him on floating status — an occurrence not unusual for security guards whose assignments depend on the agency's contracts with third parties. Placing a security guard on floating or off-detail status for not more than six months is not prohibited by law and does not amount to dismissal. Petitioner's insistence that he was never given new assignments was uncorroborated. Both the NLRC and the CA found that petitioner never denied receiving copies of the SSDs directing him to new assignments; the duty officer who issued the SSDs and the investigator general both attested that petitioner refused the postings without justification, and petitioner never contested these assertions. The arguments that the rotation policy did not toll the six-month floating period and that the offered assignments were merely temporary "reliever" positions were raised for the first time on appeal — specifically in the motion for reconsideration before the CA — and cannot be entertained, as issues not raised before the original tribunal cannot be raised for the first time on appeal without offending fair play, justice, and due process. Even if timely raised, these arguments would fail: the rotation policy falls within management prerogative, allowing the employer to transfer employees provided the transfer is not unreasonable, inconvenient, prejudicial, or involving demotion or diminution of benefits. Petitioner had been periodically reassigned since 1992 without objection, effectively consenting to the policy and rendering him estopped from denouncing it as an assault on security of tenure. The "reliever" assignments offered were not merely temporary but regular, as they were necessary and essential to the usual business of the agency; the primary standard for regular employment is the reasonable connection between the activity performed and the employer's business. Petitioner's repeated refusal of these assignments was therefore unjustified and negated his claim of illegal dismissal.

• Floating Status / Temporary Off-Detail — A security guard may be placed on temporary "off-detail" or "floating status," which is the period when the guard is between assignments or waiting after being relieved from a previous post until transferred to a new one. This status, not exceeding six months, does not amount to dismissal. The Court applied this doctrine to hold that petitioner's relief on October 28, 2002 and the offers of new assignments within five months placed him within the allowable floating period, precluding a finding of constructive dismissal.

• Burden of Proof in Illegal Dismissal — While the employer bears the burden of proving that termination was for a valid or authorized cause, the employee must first prove by substantial evidence the fact of illegal dismissal. Illegal dismissal must be established by positive and overt acts clearly indicative of a manifest intention to dismiss; mere allegation is neither proof nor evidence. The Court found that petitioner adduced no positive or direct evidence of dismissal.

• Management Prerogative — Transfer of Employees — The employer has the inherent right to regulate all aspects of employment, including the transfer of employees, as long as the transfer is not unreasonable, inconvenient, prejudicial, and does not involve a demotion in rank or diminution of salaries, benefits, and privileges. In the absence of evident bad faith or manifest intent to circumvent these conditions, the Court will not invalidate a rotation policy that reflects security planning and discourages familiarity between guards and premises. Contracts for security services may stipulate that clients may request replacement of guards even without cause.

• Estoppel — An employee who has acquiesced in a rotation policy over years of periodic reassignments without objection is estopped from later denouncing that policy as an infringement of security of tenure. Petitioner had been reassigned to various clients since 1992 without resistance, effectively consenting to the policy.

• Regular Employment — Primary Standard — The primary standard for determining regular employment is the reasonable connection between the activity performed by the employee and the business or trade of the employer. Even if employment is temporarily halted, it is deemed regular if the employee has rendered at least one year of service. The "reliever" assignments offered to petitioner were regular because they were necessary and essential to the agency's usual business.

• "Illegal dismissal must be established by positive and overt acts clearly indicative of a manifest intention to dismiss. This critical affirmative fact must be proved by the party alleging the same with substantial evidence as required by the nature of this case." — This passage states the ratio decidendi on the employee's burden of proof in illegal dismissal cases, a doctrine frequently cited in labor jurisprudence.

• "Placing petitioner on floating or off-detail status for not more than six months is not prohibited by law and did not amount to dismissal." — This formulation articulates the controlling rule on floating status for security guards, distinguishing lawful off-detail from constructive dismissal.

• "The employer has the inherent right to regulate all aspects of employment, according to his own discretion and judgment, including the right to transfer an employee as long as the transfer is not unreasonable, inconvenient, prejudicial and does not involve a demotion in rank or a diminution of the employee's salaries, benefits, and other privileges." — This is the canonical statement of management prerogative as applied to employee transfers, defining the boundaries within which an employer may reassign personnel.

• "issues and arguments not raised before the original tribunal cannot be raised for the first time on appeal." — This passage states the procedural bar against belatedly raising new theories on appeal, grounded in fair play, justice, and due process.

• Cañedo vs. Kampilan Security and Detective Agency, Inc., G.R. No. 179326, July 31, 2013, 702 SCRA 647 — Cited for the proposition that the employer bears the burden of proving valid termination, but the employee must first prove the fact of illegal dismissal by substantial evidence.
• Noblejas vs. Italian Maritime Academy Phils., Inc., G.R. No. 207888, June 9, 2014, 725 SCRA 570 — Cited for the requirement that illegal dismissal must be established by positive and overt acts indicative of a manifest intention to dismiss, proved by substantial evidence.
• Sentinel Security Agency, Inc. vs. National Labor Relations Commission, 356 Phil. 434 (1998) — Cited for the principle that floating status is not unusual for security guards, whose assignments depend on the agency's contracts with third parties.
• Leopard Security and Investigation Agency vs. Quitoy, G.R. No. 186344, February 20, 2013, 691 SCRA 440 — Cited for the rule that placing a security guard on floating or off-detail status for not more than six months is not prohibited by law and does not amount to dismissal.
• Salvaloza vs. National Labor Relations Commission, 650 Phil. 543 (2010) — Cited for the doctrine that contracts for security services may stipulate that clients may request replacement of guards even without cause, and that replaced guards may be placed on temporary off-detail or floating status.
• Philippine Telegraph and Telephone Co. vs. National Labor Relations Commission, 338 Phil. 1093 (1997) — Cited for the primary standard of regular employment: the reasonable connection between the employee's activity and the employer's business or trade.
• Magnolia Dairy Products Corporation vs. National Labor Relations Commission, 322 Phil. 508 (1996) — Cited for the procedural rule that issues and arguments not raised before the original tribunal cannot be raised for the first time on appeal.

• Article 286, Labor Code — Provides that the bona fide suspension of the operation of a business or undertaking for a period not exceeding six months, or the fulfillment of military or civic duty, shall not terminate employment. Petitioner invoked this provision to argue that his relief did not arise from a bona fide suspension of operations and therefore did not toll the six-month floating period. The Court did not directly apply Article 286 to petitioner's situation, finding instead that the rotation policy was a valid management prerogative and that the floating status did not exceed six months.

Carpio (Chairperson), Perez, Mendoza, and Leonen, JJ., concurred.