Tatel v. JLFP Investigation Security, Inc.

30 January 2012 | Del Castillo, J. |

Termination of Employment > Termination of Employment by Employer > Temporary Off detail or floating status
Digested by: Precious Gan

PETITIONER: Vicente C. Tatel

RESPONDENTS: JLFP Investigation Security Agency, Inc.; Jose Luis F. Pamintuan; Paolo C. Turno

SUMMARY: Vicente filed a complaint for underpayment with the NLRC and was subsequently placed on floating status. After
the lapse of six months without having been given any assignments, he filed another complaint for illegal dismissal. LA found that
he was not illegally dismissed. NLRC found that he was illegally dismissed. CA reversed the NLRC and reinstated the LA decision.
SC reversed the CA and reinstated the NLRC decision with modification.

DOCTRINE: Placing an employee on temporary off-detail is not equivalent to dismissal provided that such temporary inactivity
should continue only for a period of 6 months. Temporary off-detail or floating status is the period of time when security guards
are in between assignments or when they are made to wait after being relieved from a previous post until they are transferred to a
new one.

FACTS: longer reassigned despite repeated subsequent visits. He

1. JLFP Investigation Security Agency hired Vicente as one
of its security guards on 14 March 1998. He was last posted
at BaggerWerken Decloedt En Zoon located at the Manila
Port Area, during which time, he was required to work 12
hours 7 days a week and received only P12,400 month
salary.
2. 14 October 2009: Vicente filed a complaint for
underpayment with the NLRC.
3. 24 October 2009: He was placed on floating status.
4. 4 May 2010: After the lapse of six months without having
been given any assignments, Vicente filed another
complaint, this time for dismissal, with the NLRC.
also reputed JLFP, et al.s claim of abandonment.
7. LA: Dismissed the illegal dismissal complaint for lack of
merit in light of his allegedly inconsistent statements that
he was unable to explain. Vicente appealed to the NLRC.
8. NLRC: Reversed and set aside the LA Decision, finding
that Vicente was illegally dismissed beginning 24 August
2009 and ordering his reinstatement. JLFP, et al.s MR was
denied and they elevated the case to the CA via petition for
certiorari. Meanwhile, respondents filed a Motion for
Computation, alleging that Vicente failed to report back to
work despite the Courts Return-to-Work Order, claiming
strained relations and manifesting that he was already
employed with another company.

5. JLFP, et al.s Answer denied the dismissal and averred:
a. That Vicente was removed from BaggerWerken on 24
August 2009 because of several infractions committed
while on duty.
b. He was reassigned to the following clients over the
following periods.
i. SKI from 16 September to 12 October 2009.
ii. IPVG from 21 to 23 October 2009.
c. 26 November 2009: JLFP sent Vicente a
Memorandum directing him to report to work, noting
that he last reported to the office on 26 October 2009,
but he ignored such notice. Thus, JLFP deemed him to
have abandoned his work.
d. Furthermore, Vicente made inconsistent statements in
the two cases filed.
i. Underpayment case: Employed in March 1997
with a salary of P12,400 per month and dismissed
on 13 October 2009.
ii. Illegal dismissal case: Employed in 14 March
1998 with a salary of P6,200 per month and
dismissed on 24 October 2009.
6. Vicentes Reply acknowledged receipt of the memo but
claimed that when he went to the JLFP office he was
merely advised to wait for possible posting and was no
9. CA: Reversed and set aside the NLRC Decision and
reinstated the LA Decision. Vicente filed a Petition for
Certiorari under Rule 45 with the SC.
ISSUE: WON Vicente was illegally dismissed. YES.
RULING: Petition is granted. CA Decision reversed and set
aside. NLRC Decision reinstated with modification.
RATIO:
1. While it is a well-settled rule that only questions of law
may be raised in a Rule 45 petition for certiorari, one
exception is when the findings of fact of the lower courts
are conflicting, which is attendant in the present case. Thus,
the SC retains its authority to pass upon the evidence and
to make its own factual findings thereon.
2. Vicente was constructively, not actually, dismissed after
having been placed on floating status for more than six
months reckoned from 24 October 2009, the day following
his removal from his last assignment with IPVG on 23
October 2009.
3. Superstar Security Agency, Inc. and/or Col. Andrada v.
NLRC: placing an employee on temporary off-detail
 is not equivalent to dismissal provided that such filing of the complaint is proof enough of his desire to
temporary inactivity should continue only for a period return to work, thus negating any suggestion of
of 6 months. abandonment.

4. In security agency parlance, being placed off-detail or on 10. Vicentes inconsistent statements does not affect the
floating status means waiting to be posted. conclusion that he was constructively dismissed because he
sufficiently explained them in his petition to the SC.
5. Salvaloza v. NLRC: Temporary off-detail or floating
status is the period of time when security guards are
in between assignments or when they are made to wait
after being relieved from a previous post until they are
transferred to a new one. It takes place when the security
agencys clients decide not to renew their contracts with
the agency, resulting in a situation where the available
posts under its existing contracts are less than the number
of guards in its roster. It also happens in instances where
contracts for security services stipulate that the client may
request the agency for the replacement of the guards
assigned to it even for want of cause, such that the replaced
security guard may be placed on temporary off-detail if
there are no available posts under the agencys existing
contracts. During such time, the security guard does not
receive any salary or any financial assistance provided by
law. It does not constitute a dismissal, as the assignments
primarily depend on the contracts entered into by the
security agencies with third parties, so long as such status
does not continue beyond a reasonable time. When such a
"floating status lasts for more than six (6) months, the
employee may be considered to have been
constructively dismissed.

6. Constructive dismissal exists when an act of clear

discrimination, insensibility, or disdain, on the part of the
employer has become so unbearable as to leave an
employee with no choice but to forego continued
employment, or when there is cessation of work because
continued employment is rendered impossible,
unreasonable, or unlikely, as an offer involving a demotion
in rank and a diminution in pay.

7. While JLFP, et al. summoned Vicente back to work

through its 26 November 2009, the records are bereft of
evidence to show that he was given any other detail or
assignment for more than six months. He is therefore
deemed to be constructively dismissed.

8. It is likewise false that Vicente had abandoned his work,

the following elements being absent:
a. Failure to report for work or absence without valid or
justifiable reason; and
b. A clear intention to sever the employer-employee
relationship.
Further, abandonment is inconsistent with constructive
dismissal.

9. No rational explanation exists for Vicente abandoning his

work, taking into consideration his length of service and
security of tenure. Thus, JLFP, et al. failed to sufficiently
establish a deliberate and justified refusal on his part to
resume employment. Additionally, an employee who
forthwith takes steps to protest his layoff cannot, as a
general rule, be said to have abandoned his work, and the