Almirante: Constructive dismissal

Labor Case Digest

Petitioner Allan M. Ador claimed that on May 27, 2010, respondent Jamila and Company Security Services Inc. hired him as security guard. After he got involved in a brawling incident against a co-employee, respondent stopped giving him posting assignments from April 2012 to April 2013. On June 11, 2013 respondent’s HR manager Eddimar Arcena, in answer to his request for a new assignment, instructed him to first renew his security guard license and clearances. Later however, he received three notices dated June 29, 2013, July 31, 2013 and Aug. 31, 2013 bearing respondent’s plan to terminate him. The notices were sent to him on Aug. 23, 2013, Sept. 6, 2013 and Oct. 4, 2013, respectively. He reported to respondent’s office every time he received the notices, but respondents refused to give him posting assignments. On Sept. 18, 2013, he submitted a letter of explanation stating that he cannot renew the documents because he did not have money. On Nov. 27, 2013, he received a memorandum dated Sept. 31, 2013 terminating his employment for insubordination. Thus, on Feb. 13, 2014, he filed against respondents a complaint for illegal dismissal and money claims.

On the other hand, respondents countered that in that brawling incident petitioner suffered fracture in the arm and went on sick leave to recuperate. After recuperating he was given augmentation assignments from May 12, 2012 to Sept. 2012 since there were no available postings for him. When he reported for work on Dec. 17, 2012 and again on Feb. 6, 2013 and April 11, 2013, he was directed to renew his security guard license and other clearances before he could be given regular assignments but he failed. He was sent a series of notices to report and explain on why he should not be charged with insubordination. They were left unheeded. Thus, on Sept. 18, 2013 he was addressed a memorandum terminating his services for insubordination for ignoring the notices sent to him.

Is respondents’ defense meritorious?

Ruling: No.

Records show that petitioner’s security agency only offered him to return to work and renew his documents after being on “floating status” for more than six months already. Respondents themselves admitted that they required petitioner to renew his documents on Dec. 17, 2012 or seven months reckoned from May 12, 2012 when he was put on “floating status.” Further, the three notices to return to work issued by respondents were dated June 29, 2013, July 31, 2013, and Aug. 31, 2013, respectively. These notices were sent to petitioner via registered mail after more than one year had elapsed from May 12, 2012. Clearly, petitioner’s “floating status” extended beyond the maximum six-month period allowed by law.

The security agency, though, insists that it cannot give petitioner a new posting assignment because his employment documents, particularly his security guard license, were expired. Records show otherwise.

As of Dec. 17, 2012, petitioner’s security guard license had not at all expired. The Department of Interior and Local Government-National Police Commission’s Civil Security Group issued petitioner’s security guard license on March 29, 2012 with an expiration date on March 29, 2015.

The security agency clearly misled petitioner into believing that it cannot give him a new posting assignment, albeit in truth, petitioner’s security guard license had not at all expired yet.

In Salvaloza v. NLRC, 650 Phil. 543, 558 (2010), Salvaloza’s security agency refused to give him assignment orders on grounds that his security guard license had allegedly expired. The security agency, however, failed to show that Salvaloza’s security guard license had actually expired before he was put on “floating status” which lasted for more than six months. The Court ruled that Salvaloza was constructively dismissed.

Clearly, petitioner’s “floating status” beyond six months sans any valid justification amounted to constructive dismissal. He had already been constructively dismissed long before the security agency served him a notice of termination under memorandum dated Sept. 31, 2013. (Allan M. Ador vs. Jamila and Company Security Services Inc., et al., G.R. 245422, July 7, 2020).


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