Dear Atty. Vlad,

I am a security Guard deployed in one of the restaurants in Pasig City. Two months ago, my Security Manager issued to me a letter recalling my assignment in the said restaurant, with a directive to report to the head office. When I arrived at the head office, my Security Manager told me that I will be deployed to another client after one month. After one month, I went to our Security Office and asked him if I can already be deployed to a new client. My Security Manager told me that I will have to wait for another two months. At present, I have been on floating status for about three months already but my employer has not given me any new assignment. Can I charge my employer (or the security agency) with illegal dismissal? I hope you can help me.

Franklin

***

Dear Franklin,

From what you stated, you have been on floating status for about three months since your recall.

In the case of Veterans Phils. Scout Security Agency vs. NLRC and Roberto Delos Santos vs. NLRC, G.R. Nos. 78062 and 83927, 28 June 1989, the Supreme Court ruled that before even determining that an employee’s dismissal is for a just or authorized cause, it must be shown that the employer has committed a positive and overt act of dismissal without which the complaint for illegal dismissal must be dismissed. In the case of Luciano P. Canedo vs. Kampilan Security and Detective Agency, Inc., G.R. No.179326, 31 July 2013, the Supreme Court ruled:

“In illegal dismissal cases, “while the employer bears the burden x x x to prove that the termination was for a valid or authorized cause, the employee must first establish by substantial evidence the fact of dismissal from service.” The burden of proving the allegations rests upon the party alleging and the proof must be clear, positive and convincing. Thus, in this case, it is incumbent upon petitioner to prove his claim of dismissal.

A floating status can ripen into constructive dismissal only when it goes beyond the six-month maximum period allowed by law. In this case, petitioner filed the complaint for illegal dismissal even before the lapse of the six-month period. Hence, his claim of illegal dismissal lacks basis. Moreover and as aptly observed by the NLRC, it was in fact petitioner who intended to terminate his relationship with respondents through his planned retirement. This is further bolstered by his prayer in his Complaint where he sought for separation pay and not for reinstatement.

From the said Decision of the Court, since you have been on floating status for only about three months, and given the fact that there was no overt act on the part of your employer to terminate your employment, you cannot claim that you have already been illegally dismissed.

I hope I was able to assist you based on what you shared to me.

Atty. Vlad del Rosario