Samillano vs. Valdez Security and Investigation Agency, Inc.

A security guard placed on temporary "off-detail" or floating status who is given a new assignment within six months from relief is not deemed dismissed from service, and where neither dismissal nor abandonment is proven by either party, the employee is entitled to reinstatement without backwages.

Petitioner Mark E. Samillano was employed by Valdez Security and Investigation Agency, Inc. (respondent company) as a security guard, assigned to a client post at Mornesse Center of Spirituality in Calamba, Laguna. Security service contracts customarily allow clients to request replacement of guards assigned to them, even without cause, which may result in relieved guards being placed on temporary "floating" or "off-detail" status pending reassignment to a new post. The respondent company's president and general manager, Emma V. Licuanan, was impleaded jointly in the complaint for money claims.

On August 17, 2008, Valdez Security and Investigation Agency, Inc. hired Mark E. Samillano as a security guard, assigning him to work from 7:00 p.m. to 7:00 a.m., Monday to Saturday, at Mornesse Center of Spirituality in Calamba, Laguna. On December 3, 2013, petitioner was relieved from his post upon the request of Sister Christina Maguyo, a representative of Mornesse. The request was made after petitioner and his co-security guard Nilo Mamigo impleaded Mornesse in a complaint for money claims against the respondent company and its president and general manager Emma V. Licuanan. On the same date, Mamigo was also relieved from his post on the ground of abandonment after going on absence without leave.

When the Relieve Order was served on petitioner, he refused to sign and accept it, an act witnessed by two other co-security guards as reflected in the order itself. The order instructed him to report in complete uniform at the respondent company's head office on December 5, 2013 at 9:00 a.m. for reassignment or transfer to another post. Petitioner did not report to work on that date. On December 14, 2013, the respondent company sent a notice to petitioner informing him that he had been on AWOL status since December 5, 2013, directing him to report to the head office to determine if he was still interested to work, and informing him of a new assignment at Anaconda Metal Fastener, Inc. in Pasig City. The notice was sent via registered mail to the address appearing in petitioner's 201 files, which was in Alfonso, Cavite, whereas petitioner's address in his subsequent complaint was Sto. Tomas, Batangas.

On September 17, 2014, petitioner and Mamigo filed a complaint for illegal dismissal with money claims, moral and exemplary damages, and attorney's fees against the respondent company and Licuanan. On October 27, 2014, they filed an amended complaint excluding their money claims in view of a pending case between the parties involving the same subject matter. Petitioner and Mamigo asserted that they were dismissed without just cause, that no valid reason was given, and that no notice of termination was furnished them. The respondents countered that there was no dismissal, the guards having gone AWOL, abandoned their work, and refused to report without justifiable reason.

The Labor Arbiter dismissed the complaint, finding that petitioner and Mamigo were merely relieved from their posts and sent return-to-work notices but failed to comply, and noting that their theory shifted from outright dismissal to being placed on floating status. The NLRC affirmed, holding that the client had the right to demand relief under the contract and that the circumstances showed abandonment. The CA, however, ruled that petitioner was dismissed for just cause but without due process, awarding P30,000.00 each as nominal damages. Petitioner then elevated the case to the Supreme Court, raising the issue of whether the CA erred in finding just cause for his termination.

• No Abandonment: Petitioner argued that he did not abandon his work as would amount to just cause for dismissal, reiterating that he was placed on floating status by the respondents and did not receive any actual notice of reassignment thereafter.
• Lack of Evidence of Abandonment: Petitioner asseverated that the respondents did not present evidence that he failed to report back to work or that he abandoned his post.
• Filing of Complaint Negates Abandonment: Petitioner noted that the fact that he filed the complaint for illegal dismissal militates against the respondents' theory of abandonment.

• No Dismissal — Abandonment: Respondents countered that petitioner was not dismissed from service but abandoned his work after being validly relieved from his last post as security guard.
• Available Reassignment: Respondents maintained that had petitioner reported to the head office as instructed, he would have received a new assignment at Anaconda Metal Fastener, but he chose to ignore the Relieve Order.
• Insubordination: Respondents stressed that petitioner's refusal to follow the lawful order to report to the head office for reassignment or deployment constitutes insubordination.

• Just Cause for Termination: Whether the CA erred in finding that there was just cause for petitioner's termination from employment.
• Dismissal from Service: Whether petitioner was dismissed from the service.
• Abandonment: Whether petitioner was guilty of abandonment of work.
• Proper Remedy: What the proper remedy is when neither dismissal nor abandonment is proven.

• Just Cause for Termination: No. The CA erred; petitioner was not dismissed for just cause because he was never dismissed at all — he was merely placed on temporary floating status with a new assignment available within six months.
• Dismissal from Service: No. Petitioner was not dismissed but was validly placed on temporary "off-detail" or floating status, which does not constitute dismissal so long as it does not last beyond six months.
• Abandonment: No. The respondents failed to establish the two elements of abandonment — unjustified absence and a clear intention to sever the employer-employee relationship.
• Proper Remedy: Reinstatement without payment of backwages. Where neither dismissal nor abandonment is proven, the employee is reinstated, each party bearing its own economic loss.

• Just Cause for Termination: The CA found that petitioner was dismissed for gross and habitual neglect of duty under Article 297(b) of the Labor Code but erred in its premise. Since petitioner was never dismissed — he was merely relieved from his post upon a client's request and instructed to report for reassignment — there could be no just cause for a termination that did not occur. The CA entered a contrary ruling to the NLRC without expressly finding that the NLRC's resolution lacked substantial evidence or was inconsistent with law and jurisprudence, prompting the Court to make its own independent findings of fact due to the conflicting findings between the labor tribunals and the CA.

• Dismissal from Service: Security service contracts typically allow clients to request replacement of assigned guards, even without cause. The security agency may then transfer or reassign employees subject to the conditions that there is no demotion in rank or diminution of salary, benefits, or privileges, and that the transfer is not motivated by discrimination or bad faith. This practice, known as placement "on floating or reserved status," does not constitute dismissal because assignments depend on contracts with third parties and is a valid exercise of management prerogative when carried out in good faith. Petitioner was relieved on December 3, 2013 and instructed to report for reassignment on December 5, 2013, with a new post at Anaconda Metal Fastener identified by December 14, 2013 — well within the six-month period. Under Tatel vs. JLFP Investigation Security Agency, Inc., floating status becomes constructive dismissal only when it lasts more than six months. Since petitioner was given a new assignment within six months, he cannot be said to have been dismissed, actually or constructively. The burden is on the employee to first establish by substantial evidence that dismissal occurred; petitioner failed to discharge this burden.

• Abandonment: Abandonment requires the concurrence of two elements: (1) failure to report for work or absence without valid or justifiable reason, and (2) a clear intention to sever the employer-employee relationship, the second being the more determinative factor and manifested by overt acts. The respondents bore the burden of proving abandonment but failed. First, mere absence or failure to report for work is not tantamount to abandonment even when a return-to-work notice has been served. Second, petitioner's complaint for illegal dismissal included a prayer for reinstatement, which is squarely inconsistent with abandonment — the filing of such a complaint fortifies the employee's desire to return to work. Third, petitioner rendered five years of continuous service, furnishing no rational explanation for why he would disrupt his tenure and forego accrued benefits. The CA's inference that petitioner must have received the return-to-work notice was also flawed: the notice was sent to his Alfonso, Cavite address on file, while his complaint listed Sto. Tomas, Batangas, making it plausible that he had changed addresses without updating his 201 files and never received the notice.

• Proper Remedy: Where neither party proves either dismissal or abandonment, the established remedy is reinstatement without payment of backwages. Under Leonardo vs. NLRC and Reynaldos Marketing Corporation, where the employee's failure to work was occasioned neither by abandonment nor by termination, the burden of economic loss is not rightfully shifted to the employer; each party must bear its own loss. Accordingly, if petitioner chooses not to return to work, he must be considered as having resigned.

• Floating Status of Security Guards — Temporary "off-detail" or "floating status" is the period when security guards are between assignments, occurring when clients do not renew contracts or request replacement of guards. It does not constitute dismissal because assignments depend on the agency's contracts with third parties, so long as the status does not continue beyond six months. When floating status lasts more than six months, the employee may be considered constructively dismissed. In this case, petitioner was given a new assignment within six months of relief, precluding a finding of actual or constructive dismissal.

• Abandonment of Work — Abandonment is the deliberate and unjustified refusal of an employee to resume employment, requiring two concurrent elements: (1) failure to report for work or absence without valid or justifiable reason, and (2) a clear intention to sever the employer-employee relationship, the second being the more determinative factor and manifested by overt acts. The employer bears the burden of proof. Mere absence, even after a return-to-work notice, is insufficient. The filing of an illegal dismissal complaint with a prayer for reinstatement is inconsistent with abandonment. Here, the respondents failed to establish either element.

• Reinstatement Without Backwages When Neither Dismissal Nor Abandonment Is Proven — Where the employee's failure to work was occasioned neither by abandonment nor by termination, the burden of economic loss is not shifted to the employer; each party bears its own loss. The employee is reinstated without backwages, and if the employee chooses not to return, he is deemed to have resigned.

• "Temporary 'off-detail' or 'floating status' is the 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." — This passage defines the floating status doctrine as applied to security guards, establishing that such status does not constitute dismissal so long as it does not exceed six months.

• "To constitute abandonment, however, there must be a clear and deliberate intent to discontinue one's employment without any intention of returning. In this regard, two elements must concur: (1) failure to report for work or absence without valid or justifiable reason, and (2) a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor and being manifested by some overt acts." — This is the canonical formulation of the two-element test for abandonment, frequently cited in labor jurisprudence.

• "in a case where the employee's failure to work was occasioned neither by his abandonment nor by a termination, the burden of economic loss is not rightfully shifted to the employer; each party must bear his own loss." — Quoted from Leonardo vs. NLRC, this articulates the rationale for the remedy of reinstatement without backwages when neither dismissal nor abandonment is established.

• Tatel vs. JLFP Investigation Security Agency, Inc., 755 Phil. 171 (2015) — Controlling authority on the floating status doctrine for security guards; cited for the rule that floating status does not constitute dismissal unless it exceeds six months, at which point constructive dismissal may arise.

• Symex Security Services, Inc. vs. Rivera, Jr., G.R. No. 202613, Nov. 8, 2017 — Followed for the two-element test of abandonment and the rule that the employer bears the burden of proving deliberate and unjustified refusal to resume employment.

• Montoya vs. Transmed Manila Corporation, 613 Phil. 696 (2009) — Cited for the standard of review in labor cases via Rule 45, requiring examination of the CA decision from the prism of whether it correctly determined the presence or absence of grave abuse of discretion in the NLRC decision.

• Leonardo vs. NLRC and Reynaldos Marketing Corporation, 389 Phil. 118 (2000) — Followed for the doctrine that where neither abandonment nor termination is proven, each party bears its own economic loss, warranting reinstatement without backwages.

• Soliman Security Services, Inc. vs. Sarmiento, 792 Phil. 708 (2016) — Cited for the principle that reassignment or transfer of security guards is a valid management prerogative provided there is no demotion, diminution of benefits, or bad faith.

• Pu-od vs. Ablaze Builders, Inc., G.R. No. 230791, Nov. 20, 2017 — Followed for the rule that filing an illegal dismissal complaint is inconsistent with abandonment of employment, especially when reinstatement is prayed for.

• Article 297(b), Labor Code (formerly Article 282) — Cited as the statutory ground for termination based on gross and habitual neglect of duty. The CA invoked this provision in finding just cause for dismissal, but the Supreme Court held that no dismissal occurred at all, rendering the provision inapplicable.

Peralta, C.J. (Chairperson), Caguioa (Working Chairperson), Lazaro-Javier, and Lopez, JJ., concurred.