Constructive dismissal

Dear Atty. Joji,

My husband, who is employed by a security agency, was informed that he could not report to work and was placed on “floating status” due to a shortage of client assignments. It has now been nearly six months, yet he has not been given any new deployment. He also recently noticed that the agency has been assigning newly hired security personnel to posts, while he remains without an assignment. Given these circumstances, do you think he has grounds to file a complaint for constructive dismissal?

Paula

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Dear Paula,

Similar to your case, the Supreme Court ruled in Seventh Fleet Security Services, Inc. vs. Loque, G.R. No. 230005, 22 January 2020 to wit:

“While there is no specific provision in the Labor Code governing the “floating status” or temporary “off-detail” of employees, the Court, applying Article 301 (286) of the Labor Code by analogy, considers this situation as a form of temporary retrenchment or lay-off. Article 301 [286] of the Labor Code reads:

ART. 301. [286] When Employment not Deemed Terminated. — The bona fide suspension of the operation of a business or undertaking for a period not exceeding six months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one month from the resumption of operations of his employer or from his relief from the military or civic duty.

Conformably with the above provision, the placement of an employee on “floating status” must not exceed six months. Otherwise, the employee may be considered constructively dismissed. Furthermore, the burden of proving that there are no posts available to which the security guard can be assigned rests on the employer. However, the mere lapse of six months in “floating status” should not automatically result to constructive dismissal. The peculiar circumstances of the employee’s failure to assume another post must still be inquired upon.

In this case, it is undisputed that the complainant was placed on floating status beginning on the lapse of his 10-day suspension on 7 January 2014. Thus, at the time he filed the complaint for constructive dismissal and money claims on 28 July 2014, he has been on “floating status” for six months and 21 days.

Considering that complainant was placed on floating status for more than six months without being deployed to a specific assignment, and that the letters dated 14 May 2014 and 28 May 2014 are bereft of any reference to any specific client or indication that he would be assigned to a specific client, he is therefore deemed constructively dismissed.

Based on jurisprudence, an employee’s floating status should not exceed six months; otherwise, it may be considered constructive dismissal if such persist for longer than the period set forth under the law. However, the specific circumstances of his case must still be examined, and the burden is on the employer to prove the unavailability of assignments.

Hope this helps.

Atty. Joji Alonso