Superior Maintenance vs. Bermeo

G.R. No. 203185, 5 December 2018

Facts of the case:

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. 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. On September 5, 2008, Bermeo filed a Complaint before the Labor Arbiter (LA) against the petitioners for constructive dismissal with claim for separation pay.

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.

On appeal, the NLRC reversed the findings of the LA and ruled that Bermeo was not constructively dismissed from work. The NLRC concluded that the complaint was prematurely filed, as Bermeo's floating status was short of the six months required for it to ripen to constructive dismissal.

The CA, however, granted the petition of the complainant on the conclusion 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., the CA ruled that since there was no suspension in the petitioners' business operations, Article 301 does not apply to them (petitioner) and they cannot seek refuge in the six-month grace period given thereunder for them to give Bermeo a new assignment.

Issue:

Whether Bermeo was constructively dismissed from work

Ruling of the Court:

Bermeo was not constructively dismissed.

Citing Salvaloza v. NLRC, the Court defined temporary off-detail or floating status 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." 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.

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 cases as a form of temporary retrenchment or lay-off, applying by analogy the rules under Article 301 (then Article 286) of the Labor Code, 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.

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.

Article 301 of the Labor Code was 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.

When Bermeo filed 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 floating status. Thus, the filing of his complaint for constructive dismissal is premature.

Good notes on this case

- The temporary lay-off wherein the employees cease to work should not exceed six months. 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. Hence the filing of constructive dismissal of employees placed on floating status within the 6-month period is premature.

- 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 cases as a form of temporary retrenchment or lay-off, applying by analogy the rules under Article 301 (then Article 286) of the Labor Code. This situation applies not only in security services but also in other industries, as long as services for a specific job are legitimately farmed out by a client to an independent contractor.

- This temporary off-detail of employees of the agencies 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.