CAPTION: ALLAN M. ADOR, PETITIONER, V.
JAMILA AND COMPANY
SECURITY SERVICES, INC., G.R. No. 245422, July 07, 2020
PREPARED BY: CAMILLE LIBERTY S. SALAMAT
TOPIC: Working conditions for special groups of employees
FACTS:
Petitioner Allan M. Ador (Ador) sued respondents Jamila and Company Security
Services, Inc., illegal dismissal, underpayment of salary and other money claims.
Petitioner essentially claimed that respondent Jamila Security hired him as
security guard where he worked from Monday to Sunday for twelve (12) hours daily on a
shifting basis. And after he got involved in a brawling incident against a co-employee, the
security agency stopped giving him posting assignments from April 2012 to April 2013.6
On June 11, 2013, he talked to the security agency's HR. Manager Eddimar
Arcena and requested for a new assignment. Arcena instructed him to first renew his
security guard license and clearances. He was, however, surprised to receive three (3)
notices dated June 29, 2013, July 31, 2013, and August 31, 2013 bearing respondents'
plan to terminate him.
He reported to respondents' office every time he received the notices, but
respondents refused to give him posting assignments. On November 27, 2013, however,
he received a Memorandum terminating his employment for insubordination.
Respondents countered that petitioner was paid all the wages and benefits
mandated by law. They submitted petitioner's payroll summary indicating the amounts he
received.Petitioner was first assigned at Hyatt Hotel and Casino. His posting did not last
long because he caused damage to the hotel's property and to one of the vehicles
belonging to a hotel guest. He got assigned to various postings but was again subjected to
several disciplinary actions for different violations of company policies. When he got
re-assigned to Hyatt Hotel and Casino, he got involved in a fistfight with his co-security
guard. He suffered fracture in the forearm and went on sick leave to recuperate. After he
was declared fit to work, he was given augmentation assignments from May 12, 2012 to
September 2012 since there were no available postings for him.13
When petitioner reported for work on December 17, 2012, he was directed to
renew his documentary requirements before he may be given a regular assignment such
as security guard license and other clearances. Petitioner, however, did not comply. He
again reported for work on February 6, 2013 and April 11, 2013 but still failed to submit
the renewed requirements.
On June 29, 2013, respondents sent petitioner a 1 st Notice to Report via
registered mail informing him of a new posting assignment. Petitioner did not reply. A 2
nd Notice to Report dated July 31, 2013 was sent directing him to return to work and
submit a written explanation on why he should not be charged with insubordination. Still,
the notice was left unheeded. Thus, a 3 rd and Final Notice to Report dated August 31,
2013 was sent to petitioner requiring him to return to work and comply with the updated
requirements; otherwise, he may be administratively charged with insubordination.
LABOR ARBITER- found petitioner to have been illegally dismissed
According to the labor arbiter, petitioner did not ignore the notices to report for
work which caused his termination for insubordination. And that even before petitioner
received the final notice to report for work dated August 31, 2013 on October 4, 2013, he
was already dismissed as of September 31, 2013. Thus, respondents terminated petitioner
without affording him the right to be heard.
NLRC – Reversed the decision of the Labor Arbiter and dismissed the complaint for
illegal dismissal.
The NLRC ruled that petitioner's failure to renew his security guard license and
clearances was a valid justification for respondents not to give him any posting.
CA - Ruled that petitioner was neither illegally nor constructively dismissed. While
petitioner was on "floating status" from May 12, 2012 to April 11, 2013, no bad faith can
be imputed on the security agency. And it offered petitioner to go back to work within the
six-month period required by law.
ISSUE:
WON Petitioner was illegally and constructively dismissed
RULING:
Petitioner was constructively dismissed.
Both the NLRC and Court Appeals found that prior to petitioner's dismissal, he
was already on "floating status" from May 12, 2012 to April 11, 2013 or for a period of
almost one (1) year.
In Tatel v. JLFP Investigation Security Agency, Inc., 42 the Court expounded on
the nature of "floating status" in security agency parlance, viz.:
Temporary "off-detail" or "floating status" is the 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. It does not constitute a
dismissal, as the assignments primarily depend on the contracts entered into by the
security agencies with third parties, so long as such status does not continue beyond a
reasonable time. When such a "floating status" lasts for more than six (6) months, the
employee may be considered to have been constructively dismissed. Records show that
petitioner's security agency only offered him to return to work and renew his documents
after being on "floating status" for more than six (6) months already. The notices that
were sent to petitioner via registered mail was already after more than one (1) year and is
beyond the maximum six-month period of floating statues allowed by law.
Also, the security agency clearly misled petitioner into believing that it cannot
give him a new posting assignment because his security guard license had already
expired even if it was not.
Petitioner was not guilty of insubordination
As heretofore shown, although petitioner had already been constructively
terminated, the security agency still served him an actual notice of termination
supposedly effective September 31, 2013. The ground cited was insubordination.
However, the notices sent by petitioner did not indicate the required specific
details under DO 14-01. They merely directed petitioner to report to the security agency's
head office and explain why he failed to comply with the orders, nothing more.
There must be "reasonable proportionality" between the willful disobedience and
the penalty imposed therefor. 65 Clearly, there is none in this case.
Award due to petitioner
For having been constructively dismissed, the NLRC awarded petitioner
separation pay equivalent to one-half (1/2) month salary for every year of service.
Although the NLRC did not state the basis for this award, the same conforms with
Sections 9.3 and 6.5 of DO 14-01, viz.:
9.3 Reserved status. —
xxx xxx xxx
If after a period of 6 months, the security agency/employer cannot provide work
or give assignment to the reserved security guard, the latter can be dismissed from service
and shall be entitled to separation pay as described in subsection 6.5.
xxx xxx xxx
6.5 Other Mandatory Benefits. –
In appropriate cases, security guards/similar personnel are entitled to the
mandatory benefits as listed below, although the same may not be included in the
monthly cost distribution in the contracts, except the required premiums form their
coverage:
a. Maternity benefit as provided under SSS Law;
b. Separation pay if the termination of employment is for authorized cause as provided by
law and as enumerated below:
Half-Month Pay Per Year of Service, but in no case less than One Month Pay if
separation pay is due to:
1. Retrenchment or reduction of personnel effected by management to prevent
serious losses;
2. Closure or cessation of operation of an establishment not due to serious losses
or financial reverses;
3. Illness or disease not curable within a period of 6 months and continued
employment is prohibited by law or prejudicial to the employee's health or that of
co-employees;
4. Lack of service assignment for a continuous period of 6 months. (Emphasis and
underlining supplied)
