Constructive dismissal
Certainly, the pronouncement in Veterans was misconstrued by the CA when it ruled that there should be a bona fide suspension of the agency’s business or operations.
Petitioner Superior Maintenance Services Inc. is a human resource agency engaged in the business of supplying janitorial services to its clients.
In 1991, it hired respondent Carlos Bermeo as a janitor who was stationed at Trinoma Mall until the end of the contract on March 30, 2008.
On Aug. 28, 2008, Bermeo was deployed to French Baker at SM Marikina, which later asked for a replacement upon learning that Bermeo was already 54 years old.
On Sept. 5, 2008, Bermeo filed a complaint before the Labor Arbiter (LA) against the petitioner for constructive dismissal with claim for separation pay.
The Labor Arbiter (LA) found that Bermeo was constructively dismissed. The National Labor Relations Commission (NLRC) modified the LA decision concluding that the complaint was prematurely filed as Bermeo’s floating status was short of the six months requirement. The Court of Appeals (CA) reversed the NLRC and reinstated the LA decision.
Did the CA err?
Ruling: Yes.
In the present case, the CA held that Article 301 applies only when there is a bona fide suspension of the employer’s operation of business.
Citing Veterans Security Agency Inc., et al., v. Gonzalvo Jr., (Veterans), 514 Phil. 488,500 (2005), the CA ruled that since there was no suspension in the petitioners’ business operations, Article 301 does not apply to them and they cannot seek refuge in the sixmonth grace period given for them to give Bermeo a new assignment.
However, Veterans is hardly relevant to the present case.
First, in Veterans, the complainant was a security guard last deployed for assignment in January 1999; he filed his complaint for illegal dismissal only on Sept. 29, 1999, which was eight months after he was pulled out from such assignment. Also, the complainant was withdrawn from his post of three years, following his complaint against his employer for non-payment of SSS contributions. Since then, he was tossed to different stations until no assignment was given to him. His employer even concocted a story that he had to be assigned somewhere else because his spouse was a lady guard assigned to the same client, when, in fact, he was single.
These circumstances indicate his employers’ intention to constructively dismiss him from work. More importantly, while it was stated in Veterans that “Article 286 applies only when there is a bona fide suspension of the employer’s operation of a business or undertaking for a period not exceeding six months,” it was further expounded that “in security agency parlance, being placed off detail or on floating status means waiting to be posted.”
Certainly, the pronouncement in Veterans was misconstrued by the CA when it ruled that there should be a bona fide suspension of the agency’s business or operations. As stated earlier, Article 301 of the Labor Code was applied only by analogy to prevent the floating status of employees hired by agencies from becoming indefinite. This temporary off-detail of employees is not a result of suspension of business operations but is merely a consequence of lack of available posts with the agency’s subsisting clients.
In the present controversy, when Bermeo filed his complaint for constructive dismissal on Sept. 5, 2008, it was only a week after his unsuccessful assignment in French Baker on Aug. 28, 2008.
Even if the reckoning date would be his last assignment at Trinoma Mall, which ended on March 30, 2008, it is still less than the six-month period allowed by Article 301 for employees to be placed on floating status. Thus, the filing of his complaint for constructive dismissal is premature.
Besides, it is unrebutted that the petitioners contacted Bermeo for a new assignment even after the latter has filed a complaint for constructive dismissal. Clearly, the LA erred in concluding that the petitioners did not at any time offer any work assignment to Bermeo. (Superior Maintenance Services, Inc., and Mr. Gustavo Tambunting vs. Carlos Bermeo, G.R. No. 203185, December 5, 2018).