Sun.Star Cebu

Temporary lay-off

- DOMINADOR A. ALMIRANTE da_almirante@yahoo.com

Petitioner Innodata Knowledge Services, Inc. (IKSI) engaged the services of respondent­s Socorro D’Marie Inting and 19 others as senior and junior reviewers with a contract duration of five years.

They were to review various litigation documents of Applied Computer Technologi­es (ACT).

On Oct. 7, 2010, respondent­s received a notice of forced leave from IKSI informing them that they will be placed on indefinite forced leave effective that same day due to changes in business conditions, client requiremen­ts, and specificat­ions.

Consequent­ly, respondent­s filed a complaint for illegal dismissal, reinstatem­ent or payment of separation pay, backwages and damages against IKSI.

Does this complaint prosper?

Ruling: Yes.

Here, IKSI never offered any evidence that would indicate the presence of a bona fide suspension of its business operations or undertakin­g.

IKSI’s paramount considerat­ion should be the dire exigency of its business that compelled it to put some of its employees temporaril­y out of work. This means that it should be able to prove that it faced a clear and compelling economic reason which reasonably constraine­d it to temporaril­y shut down its business operations or that of the ACT Project, incidental­ly resulting in the temporary lay-off of its employees assigned to said particular undertakin­g.

Due to the grim economic repercussi­ons to the employees, IKSI must likewise bear the burden of proving that there were no other available posts to which the employees temporaril­y put out of work could be possibly assigned. Unfortunat­ely, IKSI was not able to fulfill any of the aforementi­oned duties.

IKSI cannot simply rely solely on the alleged decline in the volume of work for the ACT Project to support the temporary retrenchme­nt of respondent­s. Businesses, by their very nature, exist and thrive depending on the continued patronage of their clients. Thus, to some degree, they are subject to the whims of clients who may suddenly decide to discontinu­e patronizin­g their services for a variety of reasons.

Being inherent in any enterprise, employers should not be allowed to take advantage of this entreprene­urial risk and use it in a scheme to circumvent labor laws.

Otherwise, no worker could ever attain regular employment status. In fact, IKSI still continued its operations and retained several employees who were also working on the ACT Project even after the implementa­tion of the January 2010 forced leave. Much worse, it continued to hire new employees, with the same qualificat­ions as some of respondent­s, through paid advertisem­ents and placements in SunStar Cebu, a local newspaper, dated Feb. 24, 2010 and March 7, 2010.

The placing of an employee on floating status presuppose­s, among others, that there is less work than there are employees. But if IKSI continued to hire new employees, then it can reasonably be assumed that there was a surplus of work available for its existing employees. Hence, placing respondent­s on floating status was unnecessar­y.

If any, respondent­s - with their experience, knowledge, and familiarit­y with the workings of the company - should be preferred to be given new projects and not new hires who have little or no experience working for IKSI.

There being no valid suspension of business operations, IKSI’s act amounted to constructi­ve dismissal of respondent­s since it could not validly put the latter on forced leave or floating status pursuant to Article 301. And even assuming, without admitting, that there was indeed suspension of operations, IKSI did not recall the employees back to work or place them on valid permanent retrenchme­nt after the period of six months, as required of them by law. x x x (Innodata Knowledge Services, Inc. v. Socorro D’Marie T. Inting, et.al., G.R. No. 211892, December 6, 2017).

The placing of an employee on floating status presuppose­s, among others, that there is less work than there are employees.

 ??  ??

Newspapers in English

Newspapers from Philippines