Floating Status that Exceeds Six Months Does not Automatically Result in Constructive Dismissal
While there is no specific provision in the Labor Code governing the floating status or temporary off-detail of employees, the Supreme Court (SC), applying Article 301 of the Labor Code by analogy, considers this situation as a form of temporary retrenchment or lay-off. Article 301 of the Labor Code provides that the bona fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment.
In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty.
The placement of an employee on “floating status” must not exceed six months. Otherwise, the employee may be considered constructively dismissed. Furthermore, the burden of proving that there are no posts available to which the security guard can be assigned rests on the employer.
However, the SC held that the mere lapse of six months in “floating status” should not automatically result in constructive dismissal. The peculiar circumstances of the employee’s failure to assume another post must still be inquired upon.
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In Exocet Security and Allied Services Corporation vs. Serrano (Exocet Security), the SC absolved the employer even if the security guard was on a floating status for more than six (6) months because the latter refused the reassignment to another client. He was placed on floating stat us after his relief from his post as a VIP security by his security agency’s client.
Clearly, his lack of assignment for more than six months cannot be attributed to the agency. On the contrary, records show that, as early as September 2006, or one month after Serrano was relieved as a VIP security, Exocet had already offered Serrano a position in the general security service because there were no available clients requiring positions for VIP security. Notably, even though the new assignment does not involve a demotion in rank or diminution in salary, pay, or benefits, Serrano declined the position because it was not the post that suited his preference, as he insisted on being a VIP Security.
In the case of Seventh Fleet Security Services, Inc. vs. Loque, the SC held that respondent should have deployed the security guard to a specific client within six (6) months from his last assignment. The correspondences allegedly sent to him merely required him to explain why he did not report to work.
He was never assigned to a particular client. Thus, even if said guard actually received the letters of the agency, he was still constructively dismissed because none of these letters indicated his reassignment to another client.
Unlike in Exocet Security and [JLFP] Investigation, the agency in Seventh Fleet is guilty of constructive dismissal because it never attempted to redeploy the guard to a definite assignment or security detail.
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