159. PASIG CYLINDER MFG CORP vs ROLO ET AL.

GR NO. 173631 SEPT. 8, 2010

ISSUE:
Whether petitioners are liable (a) for constructive dismissal; and (b) non-payment of
13th month pay, service incentive leave pay, and holiday pay?

RULING:
We find no error in the labor arbiters ruling on the question of petitioners liability for
constructive dismissal. It seems petitioners rested their case on the defense of respondents
abandonment of work. For this cause to prosper, petitioners should have proved (1) that the
failure to report for work was without justifiable reason, and (2) respondents intention to sever
the employer-employee relationship as shown by some overt acts. Petitioners failed to
discharge their burden of proof. On respondents non-reporting for work, petitioners failed to
rebut respondents claim that they were denied entry to their work area and the records
substantially support the arbiters finding that respondents were placed on shifts not by weeks
but almost by month. Further, petitioners fail to bring to our attention any overt acts of
respondents showing clear intention to sever their employment relationship with petitioners.
On the contrary, respondents act of filing complaints before the NLRC for illegal dismissal shows
intent to continue their employment and hold petitioners liable for their constructive dismissal
and for non-compliance with labor laws on payment of benefits. We have consistently treated
this fact as belying intent to abandon work.

Accordingly, petitioners are liable for constructive dismissal for placing respondents on shifts of
a few days per month and in eventually denying them workplace access, rendering respondents
employment impossible, unreasonable or unlikely, leaving them no choice but to quit.

Petitioners further claim that the documents they submitted to the NLRC prove payment to
respondents of the labor benefits the arbiter awarded to them. The task of resolving this issue,
purely factual, properly pertains to the NLRC as the quasi-judicial appellate body to which these
documents were presented to review the arbiters ruling. True, the labor arbiter was the ideal
forum to receive and evaluate these pieces of evidence but the NLRC is not precluded from
considering them in light of their apparent merit, consistent with equity and the basic notions
of fairness. In discharging this task, the NLRC is to take into account all the documents
petitioners attached to their memorandum of appeal, particularly Annexes GGGGGG to IIIIII,
KKKKKK and LLLLLL] which are payment ledgers indicating acknowledgment by some
respondents of their receipt of 13th month pay for 1998 and 1999. The NLRC should also pass
upon petitioners claim of erroneous award of 13th month pay to respondents Danilo Rollo,
Emelito Lobo, Ronnie John Espinas, Jose Ronnie Serenio, Roberto Pinuela, Reynaldo Orande,
and David Oclarino whom the arbiter found to have been paid such benefit.

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160. NIPPON HOUSING PHIL, INC. vs LEYNES
GR NO. 177816 AUG 3, 2011

ISSUE:
Whether or not the CA erred in finding that Leynes was constructively dismissed when she was
placed on floating status prior to her termination from employment on the ground of
redundancy?

RULING:

Although the CA correctly found that the record is bereft of any showing that Leynes was
unacceptable to BGCC, the evidence the parties adduced a quo clearly indicates that petitioners
were not in bad faith when they placed the former under floating status. Disgruntled by NHPI
countermanding of her decision to bar Engr. Cantuba from the Project, Leynes twice signified
her intention to resign from her position. In her application letter for an immediate emergency
leave, Leynes also distinctly expressed her dissatisfaction over NHPI resolution of her dispute
with Engr. Cantuba and announced her plan of coordinating with her lawyer regarding her
resignation letter.

In view of the sensitive nature of Leynes position and the critical stage of the Project business
development, NHPI was constrained to relay the situation to BGCC which, in turn, requested
the immediate adoption of remedial measures from Takada, including the appointment of a
new Property Manager for the Project. Upon BGCC recommendation, NHPI consequently hired
Engr. Jose on 13 February 2002 as Leynes replacement. Far from being the indication of bad
faith the CA construed the same to be, these factual antecedents suggest that NHPI immediate
hiring of Engr. Jose as the new Property Manager for the Project was brought about by
Leynesown rash announcement of her intention to resign from her position. Although she
subsequently changed her mind and sent Reyes a letter by telefax on 13 February 2002
announcing the reconsideration of her planned resignation and her intention to return to work
on 15 February 2002, Leynes evidently had only herself to blame for precipitately setting in
motion the events which led to NHPI hiring of her own replacement.

The record, moreover, shows that NHPI simply placed her on floating status "until such time
that another project could be secured" for her. Traditionally invoked by security agencies when
guards are temporarily sidelined from duty while waiting to be transferred or assigned to a new
post or client, Article 286 of the Labor Code has been applied to other industries when, as a
consequence of the bona fide suspension of the operation of a business or undertaking, an
employer is constrained to put employees on floating status for a period not exceeding six
months.

Considering that even labor laws discourage intrusion in the employer's judgment concerning
the conduct of their business, courts often decline to interfere in their legitimate business
decisions,absent showing of illegality, bad faith or arbitrariness. Indeed, the right of employees
to security of tenure does not give them vested rights to their positions to the extent of
depriving management of its prerogative to change their assignments or to transfer them.The
record shows that Leynes filed the complaint for actual illegal dismissal from which the case
originated on 22 February 2002 or immediately upon being placed on floating status as a

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consequence of NHPI hiring of a new Property Manager for the Project. The rule is settled,
however, that "off-detailing" is not equivalent to dismissal, so long as such status does not
continue beyond a reasonable time and that it is only when such a "floating status" lasts for
more than six months that the employee may be considered to have been constructively
dismissed. A complaint for illegal dismissal filed prior to the lapse of said six-month and/or the
actual dismissal of the employee is generally considered as prematurely filed.

Viewed in the light of the foregoing factual antecedents, the Court finds that the CA reversibly
erred in holding petitioners liable for constructively dismissing Leynes from her employment.
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. Constructive dismissal exists where there is
cessation of work because continued employment is rendered impossible, unreasonable or
unlikely, as an offer involving a demotion in rank and a diminution in pay. Stated otherwise, it is
a dismissal in disguise or an act amounting to dismissal but made to appear as if it were not.

With no other client aside from BGCC for the building management side of its business, the
Court finds that NHPI was acting well within its prerogatives when it eventually terminated
Leynesservices on the ground of redundancy. One of the recognized authorized causes for the
termination of employment, redundancy exists when the service capability of the workforce is
in excess of what is reasonably needed to meet the demands of the business enterprise. A
redundant position is one rendered superfluous by any number of factors, such as overhiring of
workers, decreased volume of business, dropping of a particular product line previously
manufactured by the company or phasing out of service activity priorly undertaken by the
business.It has been held that the exercise of business judgment to characterize an employee
service as no longer necessary or sustainable is not subject to discretionary review where, as
here, it is exercised there is no showing of violation of the law or arbitrariness or malice on the
part of the employer.

Having been validly terminated on the ground of redundancy, Leynes is entitled to separation
pay equivalent to one-month salary for every year of service but not to the backwages
adjudicated in her favor by the Labor Arbiter.

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161. BELLO vs BONIFACIO SECURITY SERVICES, INC.
GR NO. 188086 AUG, 2011

ISSUE:
Whether the petition should be dismissed outright for defective verification; and whether the
CA erred in annulling the NLRCs resolutions?

RULING:
Verification of a pleading is a formal, not jurisdictional, requirement intended to secure the
assurance that the matters alleged in a pleading are true and correct. Thus, the court may
simply order the correction of unverified pleadings or act on them and waive strict compliance
with the rules.] It is deemed substantially complied with when one who has ample knowledge
to swear to the truth of the allegations in the complaint or petition signs the verification, and
when matters alleged in the petition have been made in good faith or are true and correct.
In this case, we find that the petitions verification substantially complied with the requirements
of the rules. The SPA authorized Bello-Ona to represent Bello in the case entitled Francis Bello
v. Bonifacio Security Services, Inc. and/or Samuel Tomas, (CA) Case No. 047829-06; NLRC-N[CR]
Case No. 00-11-09529-2002 the case from which the present petition originated. As the
daughter of Bello, Bello-Ona is deemed to have sufficient knowledge to swear to the truth of
the allegations in the petition, which are matters of record in the tribunals and the appellate
court below.

On the merits of the case, we find no reason to disturb the CA conclusion that there was no
constructive dismissal. Case law defines constructive dismissal as a cessation of work because
continued employment has been rendered impossible, unreasonable, or unlikely, as when there
is a demotion in rank or diminution in pay, or both, or when a clear discrimination, insensibility,
or disdain by an employer becomes unbearable to the employee.

We note that, other than his bare and self-serving allegations, Bello has not offered any
evidence that he was promoted in a span of four months since his employment as traffic
marshal in July 2001 to a detachment commander in November 2001. During his six-month
probationary period of employment, it is highly improbable that Bello would be promoted after
just a month of employment, from a traffic marshal in July 2001 to supervisor in August 2001,
and three months later to assistant detachment commander and to detachment commander in
November 2001. At most, the BSSI merely changed his assignment or transferred him to the
post where his service would be most beneficial to its clients. The management's prerogative of
transferring and reassigning employees from one area of operation to another in order to meet
the requirements of the business is generally not constitutive of constructive dismissal. We see
this to be the case in the present dispute so that the consequent reassignment of Bello to a
traffic marshal post was well within the scope of the BSSIs management prerogative.

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161-A. MOJAR vs AGRO COMMERCIAL SECURITY SERVICE AGENCY

ISSUE:
Won petitioners were illegally dismissed?

RULING:
Petitioners argue that they were illegally dismissed, based on the 1989 case Agro Commercial
Security Services Agency, Inc. v. NLRC., which holds that when the floating status of employees
lasts for more than six (6) months, they may be considered to have been illegally dismissed
from the service.
Unfortunately, the above-mentioned case is not applicable here. In Agro, the service contracts
of the security agency therein with various corporations and government agencies to which the
security guards were previously assigned were terminated, generally due to the sequestration
of the said offices. Accordingly, many of the security guards were placed on floating status.
Floating status means an indefinite period of time when one does not receive any salary or
financial benefit provided by law. In this case, petitioners were actually reassigned to new
posts, albeit in a different location from where they resided. Thus, there can be no floating
status or indefinite period to speak of. Instead, petitioners were the ones who refused to report
for work in their new assignment.
In cases involving security guards, a relief and transfer order in itself does not sever the
employment relationship between the security guards and their agency. Employees have the
right to security of tenure, but this does not give them such a vested right to their positions as
would deprive the company of its prerogative to change their assignment or transfer them
where their services, as security guards, will be most beneficial to the client. An employer has
the right to transfer or assign its employees from one office or area of operation to another in
pursuit of its legitimate business interest, provided there is no demotion in rank or diminution
of salary, benefits, and other privileges; and the transfer is not motivated by discrimination or
bad faith, or effected as a form of punishment or demotion without sufficient cause.
While petitioners may claim that their transfer to Manila will cause added expenses and
inconvenience, we agree with the CA that, absent any showing of bad faith or ill motive on the
part of the employer, the transfer remains valid.

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162. REYES ET AL. vs RP GUARDIANS SECURITY AGENCY INC.
GR NO. 193756 APRIL 10, 2013

ISSUE:
Won petitioners were constructively dismissed?

RULING:
There is no doubt that petitioners were constructively dismissed. The LA, the NLRC and the CA
were one in their conclusion that respondent was guilty of illegal dismissal when it placed
petitioners on floating status beyond the reasonable six-month period after the termination of
their service contract with Banco de Oro. Temporary displacement or temporary off-detail of
security guard is, generally, allowed in a situation where a security agency’s client decided not
to renew their service contract with the agency and no post is available for the relieved security
guard.15 Such situation does not normally result in a constructive dismissal. Nonetheless, when
the floating status lasts for more than six (6) months, the employee may be considered to have
been constructively dismissed.16 No less than the Constitution17guarantees the right of
workers to security of tenure, thus, employees can only be dismissed for just or authorized
causes and after they have been afforded the due process of law.18cralawvllred

Settled is the rule that that an employee who is unjustly dismissed from work shall be entitled
to reinstatement without loss of seniority rights and other privileges, and to his full backwages,
inclusive of allowances and to his other benefits or their monetary equivalent computed from
the time his compensation was withheld up to the time of actual reinstatement.19 If
reinstatement is not possible, however, the award of separation pay is proper.20cralawvllred

Backwages and reinstatement are separate and distinct reliefs given to an illegally dismissed
employee in order to alleviate the economic damage brought about by the employee’s
dismissal.21 “Reinstatement is a restoration to a state from which one has been removed or
separated” while “the payment of backwages is a form of relief that restores the income that
was lost by reason of the unlawful dismissal.” Therefore, the award of one does not bar the
other.

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163. THE ORCHARD GOLF AND COUNTRY CLUB vs FRANCISCO
GR NO. 178125 MAR 18, 2013

ISSUE:
Won there was constructive dismissal?

RULING:
The Petition lacks merit.
At the outset, it must be emphasized that Francisco’s two suspensions, i.e., for her failure to
draft the SGV letter and for being absent without prior leave, is no longer at issue before this
Court. Records show that after the NLRC declared the same as valid in its November 19, 2002
Resolution, Francisco moved for reconsideration but to no avail. After the denial of her motion,
Francisco no longer brought the issue or appealed the same to the CA. Hence, the only issues
for our resolution are the propriety of Francisco’s transfer to the position of Cost Controller and
the award of attorney’s fees.
There was constructive dismissal when Francisco was transferred to the Cost Accounting
Section.
We agree with the NLRC and the CA that Francisco’s transfer to the position of Cost Controller
was without valid basis and that it amounted to a demotion in rank. Hence, there was
constructive dismissal.
Records show that when Francisco returned to work on July 20, 2000 fresh from her first
suspension, she was unceremoniously transferred by Famy, via his July 20, 2000 memorandum,
to the Club’s Cost Accounting Section. Famy stated the reason for her transfer:
This is to inform you that effective today, July 20, 2000, Management has approved your
temporary transfer of assignment pending the completion of the investigation you lodged
against the undersigned.
His memorandum of even date to his superior Clemente reveals the same cause:
In view of the recent developments, i.e. the suspension of Ms. Amelia Francisco and her letter
of July 5, 2000 x x x, I would like to formally inform you that effective today, July 20, 2000, Ms.
Francisco shall be temporarily given a new assignment in my department pending the result of
the investigation she lodged against the undersigned.
In other words, the cause of Francisco’s temporary transfer on July 20, 2000 was her pending
complaint against Famy.
And then again, on September 6, 2000, Nuevo issued another memorandum duly noted and
approved by Clemente, and personally delivered at Francisco’s residence on September 7, 2000
informing her this time that she has been placed on forced leave with pay for 30 days, or from
September 7, 2000 up to October 11, 2000, for the reason that the case filed against her has
strained her relationship with her superiors.