SECOND DIVISION

[G.R. No. 203185. December 5, 2018.]

SUPERIOR MAINTENANCE SERVICES, INC., and MR. GUSTAVO

TAMBUNTING , petitioners, vs . CARLOS BERMEO , respondent.

DECISION

A.B. REYES, JR. , J : p

This is a Petition for Review on Certiorari 1 under Rule 45 seeking to reverse and
set aside the Decision 2 and Resolution 3 of the Court of Appeals (CA) in CA-G.R. SP No.
111875, which ordered Superior Maintenance Services, Inc., (Superior Maintenance)
and Gustavo Tambunting (collectively, petitioners) to pay respondent Carlos Bermeo
(Bermeo) separation pay for having been constructively dismissed from employment.

Antecedent Facts

Superior Maintenance is a manpower agency engaged in the business of

supplying janitorial services to its clients. In 1991, it hired Bermeo as a janitor for its
clients. Through the years, Bermeo was assigned to several establishments. He was
last stationed at Trinoma Mall until the end of contract on March 30, 2008. 4
On August 28, 2008, Bermeo was deployed to French Baker at SM Marikina, one
of Superior Maintenance's clients; however, French Baker asked for a replacement upon
learning that Bermeo was already 54 years old. 5
On September 5, 2008, Bermeo led a Complaint 6 before the Labor Arbiter (LA)
against the petitioners for constructive dismissal with claim for separation pay.

Ruling of the LA

In a Decision 7 dated February 6, 2009, the LA found that Bermeo was

constructively dismissed because no work was offered to him even during the
pendency of the proceedings before it, such that the period of his oating status had
already expired. 8 The LA disposed of the case as follows: aScITE

WHEREFORE, premises considered judgment is hereby rendered declaring

that complainant was constructively dismissed. The respondent Superior
Maintenance Security Services, Inc. is ordered to pay complainant the amount
o f ONE HUNDRED EIGHTY THREE THOUSAND THREE HUNDRED
NINETY ONE PESOS and/or 98/100 ([P]183,391.98) representing
separation pay and his unpaid 13th month pay.
All other claims are dismissed for lack of merit.
SO ORDERED. 9

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 Ruling of the NLRC

On appeal, the NLRC reversed the ndings of the LA and ruled that Bermeo was
not constructively dismissed from work. The NLRC concluded that the complaint was
prematurely led, as Bermeo's oating status was short of the six months required for
it to ripen to constructive dismissal. 1 0 This notwithstanding, the grant of 13th month
pay was retained in the absence of proof that Bermeo received the same. The fallo of
the Decision 1 1 dated August 13, 2009 reads: DETACa

WHEREFORE, the decision appealed from is hereby MODIFIED by deleting

the grant of separation pay. The grant of 13th month pay is AFFIRMED.
SO ORDERED. 1 2
The NLRC also denied Bermeo's motion for reconsideration through a Resolution
13 dated October 6, 2009.
Bermeo then elevated the case to the CA through a Rule 65 petition for certiorari.

Ruling of the CA

On March 30, 2012, the CA promulgated its Decision 1 4 granting the petition. The
decretal portion of its judgment states:
WHEREFORE , premises considered, the instant petition is GRANTED .
The NLRC Decision dated August 13, 2009 and the Resolution dated October 06,
2009 are hereby REVERSED and SET ASIDE . The Labor Arbiter's Decision
dated 06 February 2009 is hereby REINSTATED .
SO ORDERED . 1 5
In its Resolution 1 6 dated July 26, 2012, the CA denied petitioner's motion for
reconsideration. HEITAD

Issue

Whether Bermeo was constructively dismissed from work.

Ruling of the Court

The petition is impressed with merit.

I n Salvaloza v. NLRC , 1 7 temporary off-detail or oating status was de ned as
that "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." 1 8 The Court further explained:
It takes place when the security agency's 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 for want of cause, such that the replaced security guard may even be placed
on temporary "off-detail" if there are no available posts under the agency's
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 existing contracts. 1 9 aDSIHc

There is no speci c provision in the Labor Code which governs the " oating
status" or temporary "off-detail" of workers employed by agencies. Thus, this situation
was considered by the Court in several cases 2 0 as a form of temporary retrenchment
or lay-off, applying by analogy the rules under Article 301 (then Article 286) of the Labor
Code, 2 1 viz.:
ART. 301. [286] When Employment not Deemed Terminated. — The bona
fide suspension of the operation of a business or undertaking for a period not
exceeding six (6) months, or the ful llment 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.
This situation applies not only in security services but also in other industries, as
in the present case, as long as services for a speci c job are legitimately farmed out by
a client to an independent contractor.
In all cases however, the temporary lay-off wherein the employees cease to work
should not exceed six months, in consonance with Article 301 of the Labor Code. After
six months, the employees should either be recalled to work or permanently retrenched
following the requirements of the law. Otherwise, the employees are considered as
constructively dismissed from work and the agency can be held liable for such
dismissal. 2 2
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), 2 3 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 six-month grace period given thereunder for them to
give Bermeo a new assignment. 2 4 ETHIDa

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
led his complaint for illegal dismissal only on September 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 de suspension
of the employer's operation of a business or undertaking for a period not exceeding six
(6) months," it was further expounded that "in security agency parlance, being placed
off detail or on floating status means waiting to be posted." 2 5 TIADCc

Certainly, the pronouncement in Veterans was misconstrued by the CA when it

ruled that there should be a bona de 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 oating status of employees hired by agencies from becoming
inde nite. This temporary off-detail of employees is not a result of suspension of
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 business operations but is merely a consequence of lack of available posts with the
agency's subsisting clients.
In the present controversy, when Bermeo led his complaint for constructive
dismissal on September 5, 2008, it was only a week after his unsuccessful assignment
in French Baker on August 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 oating status.
Thus, the ling 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 led a complaint for constructive dismissal. 2 6 Clearly, the LA erred in
concluding that the petitioners did not at any time offer any work assignment to
Bermeo. 2 7 cSEDTC

WHEREFORE , the instant Petition is GRANTED . The Decision dated March 30,
2012 and Resolution dated July 26, 2012 of the Court of Appeals in CA-G.R. SP No.
111875 are hereby REVERSED and SET ASIDE . The Decision dated August 13, 2009
and Resolution dated October 6, 2009 of the National Labor Relations Commission in
NLRC LAC No. 03-000925-09 (NLRC NCR Case No. 09-12499-08), are hereby
REINSTATED .
SO ORDERED .
Carpio, Perlas-Bernabe, Caguioa and Carandang, * JJ., concur.

Footnotes
* Designated Member per Special Order No. 2628, dated November 29, 2018.

1. Rollo, pp. 10-37.

2. Penned by Associate Justice Stephen C. Cruz with Associate Justices Vicente S.E. Veloso
and Myra V. Garcia-Fernandez concurring; id. at 49-57.
3. Id. at 46-47.
4. Id. at 172-173.

5. Id. at 173-174.
6. NLRC rollo, pp. 1-2.

7. Rollo, pp. 109-115.

8. Id. at 112.

9. Id. at 115.
10. CA rollo, p. 17.
11. Penned by Commissioner Angelo Ang Palana with Presiding Commissioner Herminio V.
Suelo and Commissioner Numeriano D. Villena concurring; id. at 14-19.
12. Id. at 19.

13. Id. at 34-35.

14. Penned by Associate Justice Stephen C. Cruz with Associate Justices Vicente S.E. Veloso
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 and Myra V. Garcia-Fernandez concurring; rollo, pp. 49-57.
15. Id. at 56.
16. Id. at 46-47.

17. Salvaloza v. NLRC, 650 Phil. 543 (2010).

18. Id. at 557.

19. Id.
20. See Philippine Industrial Security Agency Corporation v. Dapiton and the National Labor
Relations Commission, 377 Phil. 951, 961-962 (1999); Pido v. National Labor Relations
Commission, 545 Phil. 507, 515-516 (2007); Megaforce Security and Allied Services, Inc.
v. Lactao and National Labor Relations Commission, 581 Phil. 100, 105-106 (2008);
Leopard Security and Investigation Agency v. Quitoy, et al., 704 Phil. 449, 457-458
(2013).

21. Exocet Security and Allied Services Corporation v. Serrano, 744 Phil. 403, 412-413 (2014).
22. Id. at 414.

23. 514 Phil. 488, 500 (2005).

24. Rollo, p. 54.
25. Id. at 54-55.

26. Id. at 105-106.

27. Id. at 112.

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