125. EMERITUS SECURITY AND MAINTENANCE SYSTEMS, INC. vs.

DAILIG

G.R. No. 204761, April 2, 2014

FACTS:

In August 2000, petitioner hired respondent as one of its security guards. During his employment,
respondent was assigned to petitioner`s various clients, starting 16 December 2004. On 10 December
2005, respondent was relieved from his post. On 16 June 2006, respondent filed a complaint for illegal
dismissal and payment of separation pay against petitioner before the Conciliation and Mediation Center
of the NLRC. On 14 July 2006, respondent filed another complaint for illegal dismissal, underpayment of
salaries and nonpayment of full backwages before the NLRC. Respondent claimed that after more than six
months since his last assignment, still respondent was not given a new assignment. Respondent argued
that if an employee is on floating status for more than six months, such employee is deemed illegally
dismissed. Petitioner admitted that it relieved respondent from his last assignment on 10 December 2005;
however, petitioner required respondent to report to the head office within 48 hours from receipt of the
order of relief. Respondent allegedly failed to comply. The LA finds for the respondent which was affirmed
by the NLRC and the CA except for the reinstatement order.

ISSUE:

Was respondent constructively dismissed?

RULING:

YES. Petitioner admits relieving respondent from his post as security guard on 10 December 2005. There
is also no dispute that respondent remained on floating status at the time he filed his complaint for illegal
dismissal on 16 June 2006. In other words, respondent was on floating status from 10 December 2005 to
16 June 2006 or more than six months. PetitionerÊs allegation of sending respondent a notice sometime
in January 2006, requiring him to report for work, is unsubstantiated, and thus, self-serving. The Court
agrees with the ruling of the Labor Arbiter, NLRC and Court of Appeals that a floating status of a security
guard, such as respondent, for more than six months constitutes constructive dismissal. In Nationwide
Security and Allied Services, Inc. v. Valderama,8 the Court held: x x x the temporary inactivity or „floating
status‰ of security guards should continue only for six months. Otherwise, the security agency concerned
could be liable for constructive dismissal. The failure of petitioner to give respondent a work assignment
beyond the reasonable six-month period makes it liable for constructive dismissal.

ISSUE:

Should the respondent be reinstated intead of grant of separation pay?

RULING:

YES. Article 279 of the Labor Code of the Philippines mandates the reinstatement of an illegally dismissed
employee. Thus, reinstatement is the general rule, while the award of separation pay is the exception. In
this case, petitioner claims that it complied with the reinstatement order of the Labor Arbiter. On 23
January 2008, petitioner sent respondent a notice informing him of the Labor Arbiter`s decision to
reinstate him. Accordingly, in February 2008, respondent was assigned by petitioner to Canlubang Sugar
Estate, Inc. in Canlubang, Laguna, and to various posts thereafter. At the time of the filing of the petition,
respondent was assigned by petitioner to MD Distripark Manila, Inc. in Biñan, Laguna.

Respondent admits receiving a reinstatement notice from petitioner. Thereafter, respondent was
assigned to one of petitioner`s clients. However, respondent points out that he was not reinstated by
petitioner Emeritus Security and Maintenance Systems, Inc. but was employed by another company,
Emme Security and Maintenance Systems, Inc. (Emme). Thus, according to respondent, he was not
reinstated at all. However, considering petitioner`s undisputed claim that Emeritus and Emme are one
and the same, there is no basis in respondent`s allegation that he was not reinstated to his previous
employment. Considering that (1) petitioner reinstated respondent in compliance with the Labor Arbiter`s
decision, and (2) there is no ground, particularly strained relations between the parties, to justify the grant
of separation pay, the Court of Appeals erred in ordering the payment thereof, in lieu of reinstatement.