DAGOT vs DASIA

(DECISION re: complainant’s appeal)

10/27/2016

This resolves complainant’s appeal from the Decision of Labor Arbiter Rhett Julius J.
Plagata dated July 12, 2016 dismissing the above-entitled case for lack of merit.

As culled from the records, the facts of the case are:

Complainant Richard A. Dagot worked as security guard/escort of respondent Davao
Security and Investigation Agency (DASIA) sometime in July 2005 and assigned at the
Metrobank in Zamboanga City. He later transferred and was absorbed by the Royal Mandarin
Agency starting in September 2006 and assigned at the Metrobank, General Luna Street Branch,
Dipolog City. He was reengaged by DASIA in May 2010 and was assigned at Metrobank, P.
Burgos Street Branch, Dipolog City. Complainant claimed that he was later on promoted as
head guard of the said bank from 2012-2014 with a monthly salary of P8,755.00.

On November 23, 2015, complainant suffered some pain on his knees due to
osteoarthritis and thus, he went on leave for seven (7) days (November 23-30, 2015) and
resumed working on December 1-4, 2015.

After his shift on December 04, 2015, complainant was summoned to respondent’s
office and was issued a Notice to explain dated December 4, 2015 with regard to his health
condition (pain due to osteoarthritis on his knees) that affected his performance and was the
subject of the complaint of the Metrobank Head Security Unit.

In his answer, complainant admitted that he could not function well due to
osteoarthritis and expressed his desire to be transferred to another post. He still reported for
work on December 5 and 6, 2015, but on December 7, 2015 he was issued a Memorandum
relieving him from his post at Metrobank and was posted at respondent’s office located at
Ikeda Compound, Katipunan St., Dipolog City.

In his re-assignment to respondent’s office starting in the month of December 2015,

complainant was only assigned to work for ten (10) days every half month reducing his monthly
income to the following amounts:

- P2,000.00 from December 7-15, 2015;

- P2,000.00 from December 16-25, 2015;
- P2,272.52 from January 1-10, 2016;
 - P2,436.00 from January 16-25, 2016; and
- P2,272.00 from February 1-10, 2016.

The situation prompted complainant to beg respondent’s manager Mr. Celades that he
be allowed to work for a straight period of fifteen (15) days as he was in dire financial need, but
this was refused by respondent. As a result thereof, complainant stopped reporting for work
starting February 11, 2016 and filed the instant complaint for actual illegal dismissal with
money claims on March 31, 2016 although this was clarified as an action for constructive
dismissal with money claims in his position paper.

He perceived that he was constructively dismissed due to the reduction of his number of
working days which resulted in the reduction of his take home pay.

In the interim, however, it appears that complainant was hired by the Staff Alliance
Agency, another service contractor, starting in March 1, 2016 and assigned as messenger at the
Metrobank, General Luna Street Branch, Dipolog City.

In its defense, respondent DASIA denied having actually or constructively dismissed

complainant from his job and explained that it only accommodated the latter’s request for
transfer to another post due to his health problem. Since there was still no available post with
its other clients, respondent assigned the complainant to its branch office in Dipolog City.
However, it admitted that complainant’s working duty hours were less than when he was then
assigned at Metrobank.

Respondent DASIA likewise asserted that complainant was paid all the benefits that he
was entitled, including pay for rest day, holiday and night shift differential. Finally, respondent
claimed that it was complainant who did not report for work after his duty on February 10,
2016 and he should be deemed to have abandoned his job.

Prior to the filing of the complaint in March 31, 2016, the parties met under the SENA
on February 23, 2016 where complainant was notified by the respondent to return to work and
perform his duty as security guard at its office in Dipolog City. Complainant, however, was no
longer interested in returning to his previous job as security guard and asked merely for
payment of his separation pay and refund for his cash bond.

After due hearings of the case, the Executive Labor Arbiter rendered the assailed
decision. Hence, the instant appeal of complainant anchored on this ground that: “THE
ASSAILED DECISION IS TAINTED WITH SERIOUS ERRORS AND PALPABLE MISTAKE HAVING
BEEN RENDERED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
JURISDICTION, WHICH IF NOT CORRECTED OR SET ASIDE WOULD CAUSE GRAVE AND
IRREPARABLE DAMAGE OR INJURY UNDUE TO COMPLAINANT-APPELLANT AS A RESULT OF
MANIFEST BIAS IN RULING THAT THERE WAS NO ILLEGAL DISMISSAL DESPITE THE FINDING OF
DIMINUTION OF PAY AND OTHER EMPLOYEE BENEFITS BY REASON OF COMPLAINANT-
APPELLANTS REASSIGNMENT AND REDUCTION OF HIS WORKING DAYS WITHOUT VALID
REASON WHICH CONSTITUTED CONSTRUCTIVE ILLEGAL DISMISSAL.”

We find the appeal partially meritorious.

There is said to be constructive dismissal when an act of clear discrimination,

insensitivity or disdain on the part of the employer has become so unbearable as to leave an
employee with no choice but to forego continued employment (Soliman Security Services, Inc.
vs CA, 433 Phil 902, 910 (2002)). Constructive dismissal exists where there is cessation of work
because continued employment is rendered impossible, unreasonable and unlikely, as an offer
involving a demotion in rank and a diminution in pay (Endico vs Quantum Foods Distribution
Center, GR No. 161615, 1/30/2009). Stated otherwise, it is a dismissal but made to appear as if
it were not (Uniwide Sales Warehouse Club vs NLRC, 154503). In constructive dismissal cases,
the employer is, concededly, charged with the burden of proving that its conduct and action or
the transfer of an employee are for valid and legitimate grounds such as genuine business
necessity (Phil. Veterans Bank vs NLRC, 188882).

Such was not the case in the case at bar. It is judicially admitted by complainant-
appellant that it was he who expressed his desire to be transferred to another post or
establishment due to his osteoarthritis, a painful medical condition that affected his
performance as security guard and was the subject of the complaint of the Metrobank Head
Security Unit.

This Commision is mindful of the fact that most contracts for services stipulate that the
client may request the replacement of security guards assigned to it (Salvaloza vs NLRC, 650 Phil
543, 557 (2010)). During that period of time when the guards are in between assignments or
when they are made to wait for new assignments after being relieved from a previous post,
guards are considered on temporary “off-detail” or under “floating status”. Act of requesting a
transfer to another post due to osteoarthritis and thus, the resulting reduction of his working
hours should not be blamed on respondent-appellee.

This Commission further notes that during the SENA proceedings complainant-appellant
manifested his lack of interest to continuously work with respondent-appellee despite its offer
for him to return to work. This is not surprising as complainant-appellant appears to have
already at that time intended to work, as he did, with another agency.

As astutely observed by the Labor Arbiter –

“xxx, the charge of constructive dismissal must likewise fail. It must be

remembered that complainant’s transfer from Metrobank to DASIA’s Dipolog
Office was due to his ailment of osteoarthritis, which entailed his going on
leave for seven (7) days starting on 23 November 2015, and raised questions
from Metrobank’s Head Security about his fitness for work as bank security
guard.

There is nothing wrong for the reduction of complainant’s bimonthly work

from fifteen (15) days to only ten (10) days in view of his above-mentioned
ailment. He cannot have his cake and eat it, too, so to speak, by continuing to
work as before while stricken with osteoarthritis which rendered him
practically unfit for work as a security guard, whether in a bank or not. “ (RAB
DECISION, p.4)

Anent however complainant-appellant’s claim for refund of cash bond, the same is
granted as respondent-appellee did not rebut the propriety thereof. But, further evidence must
be adduced necessary to determine and fix total amount of the cash bond deposited by
complainant-appellant. This can be conveniently and expeditiously done by the Regional
Arbitration Branch of origin during execution proceedings, under the given circumstance.

WHEREFORE, foregoing premises considered, the instant appeal is hereby partially

granted and the decision appealed from is affirmed with modification in that respondent Davao
Security and Investigation Agency in ORDERED to refund to complainant Richard A. Dagot his
cash bond, the amount thereof is subject to computation by the Regional Arbitration Branch of
origin during execution proceedings.

SO ORDERED.

Cagayan De Oro City, Philippines.

BARIO-ROD M. TALON
Presiding Commissioner