3Republic of tlJe ~bilippine%
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SECOND DIVISION
SUPERIOR MAINTENANCE G.R. No. 203185
SERVICES, INC., AND MR.
GUSTAVO TAMBUNTING
Petitioners, Present:
CARPIO, S.A .J.
Chairman,
- versus - PERLAS-BERNABE,
CAGUIOA,
A. REYES, JR. and
CARANDANG,*JJ.
CARLOS BERMEO, Promulgated:
Respondent. OS DE " 2OB
x----------------------------------------------------------~-----~----x
DECISION
A. REYES, JR., J.:
This is a Petition for Review on Certiorari 1 under Rule 45 seeking to
reverse and set aside the Decision2 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 (Benneo)
separation pay for having been constructively dismissed from employment.
Designated Member per Special Order No. 2628, dated November 29, 2018.
Rollo, pp. 10-37.
2 Penned by Associate Justice Stephen C. Cmz with Associate Justices Vicente S.E. Veloso and
Myra V. Garcia-Fernandez concurring; id. at 49-57.
3
Id. at 46-47.
Decision 2 G.R. No. 203185
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 filed a Complaint6 before the Labor
Arbiter (LA) against the petitioners for constructive dismissal with claim for
separation pay.
Ruling of the LA
In a Decision7 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 floating
status had already expired. 8 The LA disposed of the case as follows:
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 of 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
Id. at 172- 173.
Id. at 173- 174.
6
NLRC ro!lo, pp. 1-2.
Rollo, pp. 109-115.
8
Id. at 112.
9
Id. at 115.
Decision 3 G.R. No. 203185
Ruling of the NLRC
On appeal, the NLRC reversed the findings of the LA and nlled that
Bermeo was not constructively dismissed from work. The NLRC concluded
that the complaint was prematurely filed, as Benneo's floating status was
short qf the six months required for it to ripen to constructive dismissal. 10
This notwithstanding, the grant of 13th month pay was retained in the
absence of proof that Bermeo received the same. The fa/lo of the Decision 11
dated August 13, 2009 reads:
WHEREFORE, the decision appealed from is hereby MODIFIED
by deleting the grant of separation pay. The grant of 13 111 month pay is
AFFIRMED.
SO ORDERED. 12
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 14 granting the
petition. The decretal portion of its judgment states:
WHEREFORE, premises considered, the instant pet1t1on is
GRANTED. The NLRC Decision dated August 13, 2009 and the
~esolution dated October 06, 2009 are hereby REVERSED and SET
ASIDE. The Labor Arbiter's Decision dated 06 February 2009 is hereby
REINSTATED.
SO ORDERED. 15
In its Resolution 16 dated July 26, 2012, the CA denied petitioner's
motion for reconsideration.
1
° CA rollo, p. 17.
11
Permed by Commissioner Angelo Ang Palana with Presiding Conunissioner 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 and
Myra V. Garcia-Fernandez concurring; rollo, pp. 49-57.
15
Id. at 56.
16
Id. at 46-47.
Decision 4 G.R. No. 203185
Issue:
Whether Bermeo was constructively dismissed from work
Ruling of the Court
The petition is impressed with merit.
In Salvaloza v. NLRC, 17 temporary off-detail or floating status was
defined 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." 18 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 existing contracts. 19
There is no specific provision in the Labor Code which governs the
"floating status" or temporary "off-detail" of workers employed by agencies.
Thus, this situation was considered by the Court in several cases20 as a form
of temporary retrenchment or lay-off, applying by analogy the niles under
Article 301 (then Article 286) of the Labor Code, 21 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 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.
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); lvlegaforce Security and Allied Services, Inc., v. Lactao and National Labor
Relations Commission, 581 Phil. 100, 105-106 (2008);LeopardSecurityandl!westigationAgencyv. Quitoy, eta/.,
704 Phil. 449, 457-458 (2013).
21
Exocet Security and Allied Services Corporation v. Serrano, 744 Phil. 403, 412-413 (2014 ).
Decision 5 G.R. No. 203185
This situation applies not only in security services but also in other
industries, as in the present case, as long as services for a specific 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. 22
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),23
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 tl~ereunder for them to give Bermeo a
new assignment. 24
However, Veterans is hardly relevant to t11e 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
September 29, 1999, which was eight months after he was pulled out from
such assigmnent. Also, tl1e 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
assigmnent 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 tl1e 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." 25
Certainly, the pronouncement in Veterans was misconstrued by the
CA when it ruled that there should be a bona fide suspension oftl1e agency's
business or operations. As stated earlier, Article 301 of the Labor Code was
22
Id. at 414.
23
514 Phil. 488, 500 (2005).
24
Rollo, p. 54.
25 Id. at 54-55.
Decision 6 G.R. No. 203185
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
constn1ctive 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 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. 26 Clearly, the
LA erred in concluding that the petitioners did not at any time offer any
work assignment to Bermeo. 27
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.
ANDREi1WiEYES, JR.
Ass~cKte Justice
WE CONCUR:
Senior Associate Justice
Chairperson
26
Id. at 105-106.
27
Id. at 112.
Decision 7 G.R. No. 203185
JA!l~
ESTELA M!"P1J:RLAS-BERNABE
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court's Division.
C2Z:ll
CA~
ANTONIO T.
Senior Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the
Division Chairperson's Attestation, I certify that the conclusions in the
above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court's Division.
