Tatel vs. JLFP Investigation and Security Agency, Inc.

A security guard is not constructively dismissed when the employer issues a recall-to-work order with a specific new assignment before the six-month floating status lapses, provided the employer proves the employee ignored the order; but the employee is not deemed to have abandoned work if he files an illegal dismissal complaint, which negates intent to sever the employer-employee relationship.

JLFP Investigation and Security Agency, Inc. is a business engaged as a security agency that hired Vicente C. Tatel as one of its security guards. In the security industry, guards are subject to temporary "off-detail" or "floating status" when between assignments, which does not constitute constructive dismissal so long as it does not continue beyond six months. The onus of proving that there is no post available to which the security guard can be assigned rests on the employer.

On March 14, 1998, JLFP hired Vicente C. Tatel as a security guard. He was last posted at BaggerWerken located at the Port Area in Manila, working twelve hours daily and receiving a monthly salary of P12,400.00. On October 14, 2009, Tatel filed a complaint before the National Labor Relations Commission against JLFP for underpayment of salaries, non-payment of benefits, 13th month pay, and attorney's fees. On October 24, 2009, Tatel was placed on "floating status" after his last assignment at IPVG ended on October 23, 2009. On May 4, 2010, after the lapse of six months without any assignment, Tatel filed a complaint for illegal dismissal, reinstatement, backwages, refund of cash bond deposit, and attorney's fees.

Respondents denied dismissing Tatel, claiming he was pulled out from his post at BaggerWerken on August 24, 2009 due to several infractions. They averred that he was subsequently reassigned to SKI from September 16 to October 12, 2009, and last posted at IPVG from October 21 to 23, 2009. Notwithstanding the pendency of the underpayment case, respondents sent a Memorandum dated November 26, 2009 directing Tatel to report back to work within three days upon receipt for posting to Lotus Realty, Inc. Respondents claimed Tatel ignored the memorandum and failed to appear, deeming him to have abandoned his work. They also pointed out that Tatel made inconsistent statements in his two labor complaints regarding his dates of employment, dismissal, and monthly salary.

Tatel admitted receiving the November 26, 2009 Memorandum on December 11, 2009. He claimed that when he went to the JLFP office, he was merely advised to "wait for possible posting" and repeatedly returned to no avail. He refuted the claim of abandonment, insisting it was illogical for an employee of more than eleven years to abandon his work and security of tenure without justification. However, records disclosed that Tatel ignored the memorandum and opted to file the illegal dismissal case after the lapse of six months, bereft of evidence showing he was prevented from returning to work or deprived of an assignment.

• Validity of Constructive Dismissal: Petitioner argued that he was constructively dismissed when respondents placed him on "floating status" for more than six months without giving him any assignments.
• Procedural Defect of MR: Petitioner claimed that respondents' motion for reconsideration was not verified and lacked a certificate against forum shopping, and that the Court's earlier Decision was in accordance with law and jurisprudence.

• No Constructive Dismissal: Respondents maintained that Tatel was not constructively dismissed and that it was he who abandoned his employment by ignoring the November 26, 2009 Memorandum directing him to report back to work.
• Inconsistent Statements: Respondents pointed out that Tatel made inconsistent statements regarding his dates of employment, dismissal, and monthly salary in his two separate labor complaints, rendering his claim of illegal dismissal suspect.
• No Monetary Awards: Respondents insisted that since Tatel was not constructively dismissed, he is not entitled to backwages, underpaid wages, damages, and attorney's fees.

• Constructive Dismissal: Whether Tatel was constructively dismissed when he was placed on floating status for more than six months, despite the employer issuing a recall-to-work order within that period.
• Abandonment: Whether Tatel abandoned his work by ignoring the recall-to-work order.
• Monetary Awards: Whether Tatel is entitled to backwages, separation pay, and other monetary awards.

• Constructive Dismissal: No. Tatel was not constructively dismissed because respondents recalled him to work through the November 26, 2009 Memorandum before the six-month period ended, and Tatel failed to prove he was prevented from returning to work.
• Abandonment: No. Tatel did not abandon his work because the filing of a complaint for illegal dismissal is proof of his desire to return to work, negating any intention to sever the employer-employee relationship.
• Monetary Awards: No. Since there was no dismissal, Tatel is not entitled to backwages or separation pay under Article 293 of the Labor Code.

• Constructive Dismissal: The burden of proving that an employee was not dismissed rests on the employer. Here, respondents adequately discharged this burden by issuing the November 26, 2009 Memorandum directing Tatel to report back to work for a specific posting at Lotus Realty before the six-month floating status lapsed. Tatel acknowledged receiving the memorandum but failed to present evidence that he complied with the return-to-work order or that respondents prevented him from returning. Thus, the lapse of the six-month period cannot be attributed to respondents, and there was no overt act of dismissal.
• Abandonment: To constitute abandonment, two elements must be present: failure to report for work without justifiable reason and clear intention to sever the employer-employee relationship. The burden to prove abandonment rests on the employer. Respondents failed to discharge this burden because the filing of a complaint for illegal dismissal manifests the employee's desire to return to work, effectively negating abandonment. It is illogical for an employee of more than ten years to abandon his work and forego benefits.
• Monetary Awards: Under Article 293 of the Labor Code, an employee unjustly dismissed is entitled to reinstatement and backwages. Since the Court found that Tatel was neither constructively dismissed nor did he abandon his work, there is no illegal dismissal to speak of. Consequently, he is not entitled to backwages, separation pay, or damages.

• Burden of Proof in Dismissal Cases — The onus of proving that an employee was not dismissed or, if dismissed, that the dismissal was for a valid or authorized cause, rests on the employer. Failure to discharge this burden means the dismissal was illegal. In this case, the employer discharged the burden by proving it issued a recall-to-work order, shifting the burden to the employee to prove dismissal, which he failed to do.
• Floating Status of Security Guards — Temporary "off-detail" or the period of time security guards are made to wait until they are transferred or assigned to a new post does not constitute constructive dismissal, so long as such status does not continue beyond six (6) months. The onus of proving that there is no post available rests on the employer. Here, the employer recalled the guard before the six-month period lapsed.
• Elements of Abandonment — Abandonment requires (a) the employee's failure to report for work or absence without valid or justifiable reason, and (b) a clear intention to sever the employer-employee relationship manifested by overt acts. The mere failure to report after notice does not necessarily amount to abandonment; the filing of an illegal dismissal complaint negates intent to abandon.

• "In this regard, it is manifestly unfair and unacceptable to immediately declare the mere lapse of the six-month period of 'floating status' as a case of constructive dismissal without looking into the peculiar circumstances that resulted in the security guard's failure to assume another post" — This passage clarifies that the six-month rule is not absolute and must be evaluated in light of the employer's actions, such as issuing a recall-to-work order.
• "To constitute abandonment of work, two (2) elements must be present: first, the employee must have failed to report for work or must have been absent without valid or justifiable reason; and second, there must have been a clear intention on the part of the employee to sever the employer-employee relationship manifested by some overt act." — This provides the canonical formulation of the elements of abandonment of work.
• "The mere absence or failure to report for work, even after notice to return, does not necessarily amount to abandonment. Abandonment is a matter of intention and cannot lightly be presumed from certain equivocal acts." — This emphasizes that abandonment is a matter of intention and requires clear proof of deliberate intent to sever the employment relationship.

• Exocet Security and Allied Services Corporation vs. Serrano, G.R. No. 198538, September 29, 2014 — Cited for the rule that temporary "off-detail" or floating status of security guards does not constitute constructive dismissal so long as it does not exceed six months, and the employer has the burden to prove no post is available.
• MZR Industries vs. Colambot, G.R. No. 179001, August 28, 2013 — Cited for the proposition that in the absence of an overt or positive act to establish dismissal, the claim of illegal dismissal cannot be sustained, and for the elements of abandonment.
• Jordan vs. Grandeur Security and Services, Inc., G.R. No. 206716, June 18, 2014 — Cited for the rule that filing a complaint for illegal dismissal is proof of the employee's desire to return to work, negating abandonment.

• Article 293, Labor Code of the Philippines — (Previously Article 279, renumbered by Republic Act No. 10151). Provides that an employee unjustly dismissed is entitled to reinstatement and full backwages. The Court applied this provision to deny backwages and separation pay because there was no dismissal.

Sereno, C. J., (Chairperson), Leonardo-De Castro, Bersamin, and Perez, JJ.