Ibon vs. Genghis Khan Security Services

A security guard who is not assigned to a specific client within six months from his last deployment is constructively dismissed; a general return-to-work order does not suffice, and a belated offer of reinstatement after the filing of an illegal dismissal complaint does not validate the dismissal.

The dispute is between a security guard, Ravengar G. Ibon, and his security agency, Genghis Khan Security Services, with Marietta Vallespin impleaded as respondent. The case tests the rule on temporary off-detail or floating status of security guards against the constitutional guarantee of security of tenure.

Ravengar G. Ibon was employed as a security guard by Genghis Khan Security Services sometime in June 2008. He was initially assigned to a certain Mr. Solis in New Manila, Quezon City; in July 2008 he was transferred to the 5th Avenue Condominium in Fort Bonifacio, Taguig City, where he was posted from September 2008 until May 2009; and in June 2009 he was transferred to the Aspen Tower Condominium until his last duty on October 4, 2010. Respondent promised to provide him a new assignment after that last duty, but no new assignment followed.

On May 10, 2011, petitioner filed a complaint against respondent for illegal dismissal, with claims for underpayment of wages, holiday and rest day premiums, service incentive leave pay, non-payment of separation pay, and reimbursement of illegal deductions. He alleged that he was no longer assigned to a new post after October 4, 2010; that he was merely receiving a daily salary of ₱384.00; and that respondent deducted ₱200.00 per month as cash bond from September 2008 until September 2010.

Respondent denied that petitioner was placed on floating status for more than six months. It claimed that he was suspended on October 4, 2010 for sleeping on the job; that he was endorsed to another client for re-assignment, which he refused because his license was due for renewal; and that since then he failed to report for work. According to respondent, sometime in November 2010 petitioner went to its office to claim his 13th month pay, but the same was not given because it was not yet due; a DOLE call regarding petitioner's claim for 13th month pay followed, and the claim was later settled during the DOLE proceedings. Respondent then sent letters, dated November 5, 2010 and February 3, 2011, requiring petitioner to report for work, but he did not show up, and respondent was surprised to receive summons regarding the illegal dismissal complaint.

The Labor Arbiter found that respondent failed to put petitioner on duty for more than six months. The NLRC noted that respondent sent letters to petitioner requiring him to report back to work within the six-month period and offered to reinstate him during the proceedings before the LA, which petitioner rejected. The CA found that the evidence showed petitioner was required to report back to work and that on October 21, 2010 he was offered a new assignment, which he refused.

• Non-Receipt of Return-to-Work Letters and Lack of Specific Assignment: Petitioner argued that he did not receive the letters requiring him to report back to work; that a perusal of the letters showed they did not indicate a specific assignment; and that respondent had no intention to reinstate him because he was placed on floating status for a long period.
• Damages and Attorney's Fees: Petitioner argued that he was entitled to moral damages, exemplary damages, and attorney's fees.
• Six-Month Floating Status and Separation Pay: In his Reply, petitioner contended that the lack of service assignment for a continuous period of six months is an authorized cause for termination of the employee, who is then entitled to separation pay; and that respondent's offer of reinstatement was meant to negate an otherwise consummated act of illegal dismissal.

• No Illegal Dismissal: Respondent averred that petitioner's claim of illegal dismissal could not overcome the evidence it presented to show that no dismissal took place.
• Suspension and Refusal of Reassignment: Respondent argued that petitioner was not on floating status for more than six months because he was suspended on October 4, 2010 for sleeping on the job; that he was endorsed to another client for reassignment but refused because his license was due for renewal; that it sent letters requiring him to report back to work; and that it offered reinstatement during the proceedings before the LA, which petitioner turned down.
• Damages: Respondent argued that moral and exemplary damages could only be awarded when there is a finding of illegal dismissal and such dismissal is borne out with malice and bad faith on the part of the employer.

• Constructive Dismissal: Whether the CA gravely erred in affirming the NLRC ruling that petitioner was not illegally dismissed from employment.
• Monetary Claims Due to Illegal Dismissal: Whether the CA gravely erred in affirming the NLRC ruling that petitioner is not entitled to his monetary claims due to illegal dismissal.

• Constructive Dismissal: Yes. The CA erred in affirming the NLRC. Petitioner was constructively dismissed because respondent failed to assign him to a specific client within six months from his last deployment on October 4, 2010; the return-to-work letters did not indicate any specific reassignment.
• Monetary Claims Due to Illegal Dismissal: Yes. The LA decision, which granted backwages from May 5, 2011, separation pay, wage differential, service incentive leave pay, and reimbursement of the cash bond, was reinstated.

• Constructive Dismissal: The SC first addressed Rule 45: generally only questions of law may be raised, but an exception exists when the findings of fact are conflicting; here the LA found constructive dismissal while the NLRC and CA found none, so review was proper. On the merits, temporary off-detail of security guards is generally allowed when the client does not renew the service contract and no post is available, but floating status beyond six months may amount to constructive dismissal under Reyes vs. RP Guardians Security Agency. Constructive dismissal may also exist where clear discrimination, insensibility, or disdain by the employer becomes so unbearable that the employee has no choice but to forego continued employment, or where continued employment is rendered impossible or unlikely, or where there is an offer involving demotion in rank and diminution in pay. Petitioner was last deployed on October 4, 2010, so respondent had to show redeployment within six months. Respondent's bare claim that petitioner was suspended for sleeping on the job was unsupported; employers are required to observe due process and could have produced documents. The letters dated November 5, 2010 and February 3, 2011 merely requested petitioner to report back and explain why he failed to report; there was no proof of receipt, and more importantly, none indicated a specific assignment. Under Tatel vs. JLFP Investigation, the employer must assign the security guard to another posting within six months from the last deployment and to a specific or particular client; a general return-to-work order does not suffice. Exocet Security vs. Serrano absolved the employer because the guard refused reassignment, unlike this case where respondent never attempted to redeploy petitioner to a definite assignment. Even if petitioner received the letters, he was still constructively dismissed because none indicated his reassignment to another client. The belated reinstatement offer, made only after petitioner filed the illegal dismissal case and after the constructive dismissal had been consummated, did not validate the dismissal.
• Monetary Claims Due to Illegal Dismissal: Because constructive dismissal was established, the SC reversed and set aside the CA and reinstated the LA decision. The LA had awarded backwages from May 5, 2011, separation pay, wage differential, service incentive leave pay, and reimbursement of the cash bond; the SC's reinstatement restored those awards.

• Temporary Off-Detail or Floating Status of Security Guards — Temporary displacement is generally allowed when the agency's client does not renew the service contract and no post is available; it does not normally result in constructive dismissal. However, when the floating status lasts more than six months, the security guard may be considered constructively dismissed. The employer must assign the guard to another posting within six months from the last deployment, and the assignment must be to a specific or particular client; a general return-to-work order does not suffice. Applied: petitioner was last deployed on October 4, 2010; no specific client assignment was shown within six months; the letters only asked him to report and explain, so constructive dismissal existed.
• Constructive Dismissal — It may exist when an act of clear discrimination, insensibility, or disdain by the employer becomes so unbearable that the employee has no choice but to forego continued employment, or when continued employment is rendered impossible or unlikely, or when there is an offer involving demotion in rank and diminution in pay. Applied: the indefinite floating status beyond six months without specific assignment amounted to constructive dismissal.
• Belated Offer of Reinstatement — An offer of reinstatement made only after the employee has filed an illegal dismissal case, and after the constructive dismissal has been consummated, does not validate the dismissal or absolve the employer. Applied: respondent's offer during the LA proceedings did not cure the constructive dismissal.
• Rule 45 — Questions of Law and Exception for Conflicting Factual Findings — A Rule 45 petition is generally limited to questions of law, but the SC may review factual findings when the findings of fact are conflicting. Applied: the LA's finding of constructive dismissal conflicted with the NLRC and CA's finding of no dismissal, so the SC reviewed the facts.
• Employer's Burden to Prove Suspension — A bare assertion that the security guard was suspended, denied by the guard and unsupported by documents, cannot rebut a claim of constructive dismissal; employers are required to observe due process in disciplining employees. Applied: respondent failed to produce evidence of the alleged October 4, 2010 suspension for sleeping on the job.

• "Temporary displacement or temporary off-detail of security guard is, generally, allowed in a situation where a security agency's client decided not to renew their service contract with the agency and no post is available for the relieved security guard. Such situation does not normally result in a constructive dismissal. Nonetheless, when the floating status lasts for more than six (6) months, the employee may be considered to have been constructively dismissed." — States the general rule on floating status and the six-month limit.
• "A holistic analysis of the Court's disposition in JFLP Investigation reveals that: [1] an employer must assign the security guard to another posting within six (6) months from his last deployment, otherwise, he would be considered constructively dismissed; and [2] the security guard must be assigned to a specific or particular client. A general return-to-work order does not suffice." — Sets the two-part requirement for redeployment.
• "Thus, even if petitioner actually received the letters of respondent, he was still constructively dismissed because none of these letters indicated his reassignment to another client." — Explains why return-to-work letters did not defeat constructive dismissal.
• "Further, petitioner's refusal to accept the offer of reinstatement could not have the effect of validating an otherwise constructive dismissal considering the that same was made only after petitioner had filed a case for illegal dismissal. Further, at the time the offer for reinstatement was made, petitioner's constructive dismissal had long been consummated." — Addresses the effect of a belated reinstatement offer.

• Reyes vs. RP Guardians Security Agency, 708 Phil. 598 (2013) — Controlling precedent; held that temporary off-detail is allowed but floating status beyond six months may amount to constructive dismissal.
• Tatel vs. JLFP Investigation (JFLP Investigation) — Followed; required assignment to another posting within six months and to a specific or particular client; a general return-to-work order is insufficient.
• Exocet Security and Allied Services Corporation vs. Serrano (Exocet Security) — Distinguished; employer was absolved because the guard refused reassignment, unlike this case where no specific assignment was offered.
• Co vs. Vargas, 676 Phil. 463, 471 (2011) — Cited for the exception to Rule 45 allowing review of conflicting factual findings.
• Central Azucarera de Bais, Inc. vs. Siason, G.R. No. 215555, July 29, 2015, 764 SCRA 494, 501 — Cited for the definition of constructive dismissal.
• MegaForce Security and Allied Services, Inc. vs. Lactao, 744 Phil. 403 (2014) — Cited for constructive dismissal arising from demotion in rank or diminution in pay.
• Hantex Trading Co., Inc. vs. CA, 438 Phil. 737, 747 (2002) — Cited on the effect of a belated offer of reinstatement after constructive dismissal has been consummated.

• Rule 45, Rules of Court — A petition for review on certiorari is generally limited to questions of law; the SC applied the exception when the findings of fact of the LA conflicted with those of the NLRC and CA.
• Constitution — Security of Tenure — The SC invoked the constitutional guarantee that workers have security of tenure and may be dismissed only for just or authorized causes and after due process; applied to hold that the six-month floating status without specific assignment amounted to constructive dismissal.