Floating

A LAW EACH DAY(Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated February 29, 2012

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When an en employee is placed on a temporary “off detail” or “floating status” is he considered to have
been constructively dismissed? This is the issue raised in this case of Roland.

Roland was hired by a security agency (NSAS) as security guard on April 18, 2002 and was assigned at a
hospital. In the course of his assignment, he had been subjected to several disciplinary actions and
correspondingly penalized. On January 30, 2006, he was relieved from his post and directed to report to
the office. On February 10, 2006, he withdrew his cash bond and firearm deposit, then, on February 20,
2006 to March 1, 2006, he participated in a re-training course as required by NSAS. Afterwards however
he was not given any assignment.

So on August 2, 2006, Roland already filed a complaint before the National Labor Relations Commission
(NLRC) Labor Arbiter (LA) against NSAS for constructive dismissal and non-payment of 13th month pay,
with a prayer for damages. NSAS however countered for its defense that Roland was not dismissed but
voluntarily resigned on February 10, 2006 when he got back his cash bond and firearm deposit.

On November 29, 2006, after due proceedings, the LA rendered a decision in favor of Roland sustaining
his claim of constructive dismissal. The LA pointed out that Roland remained on floating status for more
than six months and NSAS offered no credible explanation why it failed to provide a new assignment to
Roland after he was relieved from his hospital post. The LA likewise rejected NSAS’ claim that Roland
voluntarily resigned on February 10, 2006, as absurd and unbelievable since he was even required by it to
undergo a “Re-Training Course” and indeed participate in said course from February 20, 2006 to March 1,
2006. So the LA ordered the reinstatement of Roland to his former position without loss of seniority rights
and other benefits aside from back-wages and 13th month pay totaling P149,216.35. Was the LA correct?

Yes. Temporary “off detail” or the period of time security guards are made to wait without receiving any
salary or benefit provided by law, until they are assigned to a new post or client, does not ordinarily
constitute constructive dismissal. A security guard, like any employee has indeed the right to a security of
tenure, but this does not give him a vested right to his position as would deprive the company of its
prerogative to change his assignment or transfer him where his services, as security guard will be most
beneficial to the client. However, it must be emphasized that such temporary activity should not continue
beyond six months. Otherwise the security agency concerned could be held liable for constructive
dismissal.

In this case it is indubitable that Roland remained on “floating status” for more than six months. The
failure of NSAS to give him a work assignment beyond the reasonable six-month period makes it liable for
constructive dismissal. The burden of proving that there is no post available to which the security guard
can be assigned rests on the employer. If there is surplus of security guards caused by lack of clients or
projects, the security agency may resort to retrenchment upon compliance with the requirements set forth
in the Labor Code so that it will not be liable for constructive dismissal and be burdened with payment of
back-wages.

Its claim that Roland voluntarily resigned earlier on February 10, 2006 when he got the cash bond and
firearm deposit cannot be accepted because it even required Roland to participate thereafter in a
retraining course. Furthermore the filing of the complaint by Roland negates any intention on his part to
forsake his work and belies NSAS claim that he voluntarily resigned (Nationwide Security and Allied
Services Inc. vs. Valderama, G. R. 186614, February 23, 2011, 644, SCRA, 299).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now
available. Call tel. 7249445.

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E-mail: jcson@pldtdsl.net.