RVV SECURITY SYSTEMS, INC., PETITIONER, VS. THE NATIONAL LABOR RELATIONS COMMISSION, EDWIN O. FRIAS AND ANSELMO B. GAVANES, RESPONDENTS.
ELBINIAS, J.:
Among the pertinent and salient facts are those as stated in public respondent NLRC’s Decision[5] of August 10, 2011, which are as follows:
“Complainants Edwin O. Frias and Anselmo B. Gavanes (private respondents here) allege that they were hired as security guards by respondent RVV Security Systems Inc. (petitioner here) in April 1996 and May 1995 respectively.
They worked on a twelve-hour duty from Monday to Sunday with no day-off and received a salary of P300.00 plus P50.00 ECOLA or a total of P350.00 per day.
Both complainants were assigned as building guards at Metro Properties, 1052, MPI Bldg., Magallanes Village, Makati City. Complainant Frias was assigned therein for almost ten years and seven years for complainant Gavanes.
Complainants claim that they were not paid their minimum wage, mandated overtime pay as they were only given an additional P150 for 4 hours overtime daily, holiday pay, premium pay for rest day and holidays and other benefits provided by law. In support of these allegations, complainants submitted in evidence respondent RVV’s Billing Statement addressed to Metro Properties xxx showing that they should receive a monthly salary of P21,269.66 per month inclusive of overtime pay, but they only received P16,000.00 per month.
On February 16, 2010, complainants filed a complaint for wage and overtime underpayment with the Department of Labor and Employment (DOLE) and the case was set for hearing on March 16, 2010.
On the date of said hearing, new guards arrived in their place of assignment and informed complainants that they are relieved from service upon the request of the building owner. No written order was shown by the new guards neither were they aware of any complaint lodged against them by the building owner that may have led to their being relieved from their posts. Despite all these, complainants peacefully turned-over their posts to the new guards and signed the logbook with a negative remark.
Complainants attended the hearing at the DOLE and during said hearing they were informed by Mr. Ronald De Leon, RVV’s Security Manager that they have to look for another security agency as their case will take time to resolve.
On March 17, 2010, complainants received an Order dated March 15, 2010 stating that they were being relieved from their post effective March 16, 2010. Thereafter, complainants followed up on their new assignments, but they were prevented from entering respondents’ office.
Sometime in August 2010, while this case was already being heard, complainant Frias belatedly received a letter dated April 5, 2010 charging them with Gross Neglect of Duty. The letter was mailed at his provincial address at 97 San Agustin, Salangan, San Miguel, Bulacan despite the fact that respondents knew that his home address is at Lot 27, Blk 8[,] Milflora Homes, Sabang, Baliuag, Bulacan as contained in his Identification Card and 201 file.”[6] (Emphasis Supplied)
Because of their dismissal from employment, private respondents Edwin O. Frias and Anselmo B. Gavanes’ (“private respondents” for brevity) filed before the Labor Arbiter a Complaint[7] for “Illegal Dismissal with claims for underpayment of salary, overtime pay, holiday pay, 13th [month] pay with prayer for reinstatement”[8] against petitioner RVV Security Systems, Inc. (“petitioner” for brevity) and against Romeo Venturina, who was sued in his capacity as the Chairman of RVV Security Systems, Inc.
The rest of the facts are continued in public respondent NLRC’s Decision[9] of August 10, 2011:
“xxx respondent RVVSSI alleges that on February 22, 2010 it received a letter from its client, Metro Properties, Inc. (MPI) informing it the need to reshuffle and eventually to replace all guards assigned in their establishment effective March 16, 2010.
On March 15, 2010, in compliance to said request, respondent RVVSSI issued an order relieving four (4) security guards assigned at MPI which included complainants. After receiving said order, complainants failed to report to respondent’s office.
On March 11, 2010, respondent agency received a notice from DOLE-NCR regarding the complaint filed by complainant Gavanes. On March 16, 2010 the scheduled date of hearing, complainant Gavanes was present accompanied by complainant Frias. Respondent’s Security Manager Ronald De Leon advised them to report to respondent’s office for possible assignment elsewhere. Complainants however informed Mr. De Leon that they will not report for fear of reprisal and indeed they did not report despite series of notices sent to them. xxx
Respondents assert that they have paid salaries and benefits due the complainants. Further, they allege that complainants are not entitled to payment of uniform allowance since they are given a set of uniform yearly.”[10] (Emphasis Supplied)
On December 10, 2010, the Labor Arbiter rendered a Decision[11], which found that private respondents were constructively dismissed by petitioner.[12] The dispositive portion of the Labor Arbiter’s Decision[13] read:
“WHEREFORE, this office hereby finds that complainants were constructively and thus, illegally, dismissed by the respondents. Respondents are hereby declared and held solidarily liable to pay: (a) Complainant Edwin Frias P94,536.00 as backwages and P147,056.0 as separation pay; and, (b) Complainant Anselmo B. Gavanes P94,536.00 as backwages and P157,560.00 as separation pay. Backwages and separation pay are subject to recomputation upon finality of this decision. Other claims are dismissed.
SO ORDERED.”[14] (Emphasis was made in the original)
Upon petitioner’s appeal, public respondent NLRC, in its assailed Decision[15] of August 10, 2011 affirmed the Labor Arbiter’s Decision[16] of December 10, 2010.
Petitioner’s eventual Motion for Reconsideration[17] was partially granted, only to the extent that Romeo Venturina was absolved from any liability, by public respondent NLRC in its assailed Resolution[18] of November 29, 2011. Afterwards, petitioner filed the Petition[19] at bench praying that:
“xxx the assailed Decision dated August 10, 2011 and the Resolution dated November 29, 2011 be reversed and set aside and a new one be issued dismissing the instant complaint for lack of merit.”[20]
Petitioner raised the following grounds:
“I.
WHETHER OR NOT THE NATIONAL LABOR RELATIONS COMMISSION (6TH DIVISION) COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AFFIRMING THE LABOR ARBITER’S DECISION FINDING [PRIVATE RESPONDENTS] AS CONSTRUCTIVELY DISMISSED, HENCE ILLEGAL, DESPITE THE FACT THAT THE COMPLAINT DID NOT RAISE CONSTRUCTIVE DISMISSAL AS A CAUSE OF ACTION.
II.
WHETHER OR NOT THE NATIONAL LABOR RELATIONS COMMISSION (6th DIVISION) IN AFFIRMING THE LABOR ARBITER’S DECISION, COMMITTED SERIOUS ERRORS IN THE FINDINGS OF FACTS WHICH, IF NOT CORRECTED, WILL CAUSE GRAVE AND IRREPARABLE DAMAGE AND/OR INJURY TO THE [PETITIONER]
III.
WHETHER OR NOT THE NATIONAL LABOR RELATIONS COMMISSION (6th DIVISION) IN AFFIRMING THE LABOR ARBITER’S DECISION, COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT AFFIRMED THE FINDING THAT [PRIVATE RESPONDENTS] WERE ILLEGALLY DISMISSED AND AWARDED THEM BACKWAGES AND SEPARATION PAY”[21] (Emphasis was made in the original)
Contrary to petitioner’s arguments in its assigned grounds I and II, private respondents were constructively dismissed by petitioner.
Petitioner had argued as follows:
“xxx the complaint was clearly premature and should have been dismissed outright. At the time of the filing of the Complaint, the six (6) month floating status had not yet expired. Clearly, there can be no finding of constructive dismissal given this factual backdrop.
xxx
xxx at the time of the filing of the Complaint at the NLRC on May 25, 2010, the six month permissible ‘floating status’ period has not yet prescribed. Hence, it cannot be gainsaid that at the time of the filing of the instant complaint, the Respondents were already dismissed. Simply put, Respondents only refused to report to Petitioner’s office for posting.
In cases involving security guards, a relief and transfer order in itself does not sever employment relationship between a security guard and his agency. An employee has the right to security of tenure, but this does not give him such a vested right in his position as would deprive the company of its prerogative to change his assignment or transfer him where his service, as security guard, will be most beneficial to the client. Temporary ‘off-detail’ or the period of time security guards are made to wait until they are transferred or assigned to a new post or client does not constitute constructive dismissal as their assignments primarily depend on the contracts entered into by the security agencies with third parties. Indeed, the Court has repeatedly recognized that ‘off-detail’ is not equivalent to dismissal, so long as such status does not continue beyond a reasonable time; when such a ‘floating status’ lasts for more than six months, the employee may be considered to have been constructively dismissed.
xxx
xxx before the sending out of the six (6) notices to private respondents xxx informing [them] to report to the office for possible posting, private respondents were personally advised and instructed by Mr. Ronald De Leon during the Mediation Hearing at the DOLE-NCR on March 16, 2010 to report to the office for possible posting. However, private respondent refused to do so. Where the inaction of the private respondents was the proximate cause of their present situation, the petitioner should not be made to suffer when it had done everything in good faith to give them a job posting elsewhere.
xxxLikewise, private respondents[‘] claim that they tried to report to petitioner’s office to follow up on their new assignments but they were barred from entering the premises by the guard on duty and that they did this for two (2) weeks but the guard on duty prevented them from entering the place, is simply unsubstantiated.
Private respondents utterly failed to specify the dates and the time when they allegedly reported to the Petitioner’s office nor the name/s of the guard/s on duty who barred them from entering, who should have been known to them being security guards like private respondents. MERE ALLEGATION IS NOT PROOF.”[22] (Emphasis supplied)
Defeating petitioner’s arguments however, is that as the records revealed, petitioner failed to provide new work assignments to private respondents within six (6) months from the time private respondents were recalled[23] from their previous work assignments on March 16, 2010, and were placed on “floating status”.
Despite private respondents’ premature filing of their Complaint[24] for Illegal Dismissal on May 25, 2010,[25] which was before six (6) months had lapsed since private respondents were placed on “floating status”, still, petitioner failed to offer private respondents new work assignments while such Complaint[26] was pending before the Labor Arbiter for more than six (6) months after private respondents were recalled from their previous assignment. Thus, petitioner had constructively dismissed private respondents by placing them on “floating status” for more than six (6) months. These matters were as similarly found by public respondent NLRC, to wit:
“While it may be true that complainants-appellees’ relief was not at the instance of respondents-appellants but that of their client MPI, still there is an obligation on their part to post complainants-appellees to another client. No post was offered to them and worse, they were even barred from entering the company premises. It also did not escape our notice that complainants-appellees who have served the client MPI for almost fifteen (15) years were only served a copy of the relief order two days after they were actually relieved.
Curtly put, their relief which could have been prompted by a valid reason became suspect due to its timing and the haste which attended it. Moreover, complainants-appellees were not given any assignment, despite the absence of a showing that posts where they could be assigned are not available. Thus, We agree with the Labor Arbiter that they were constructively dismissed.”[27] (Emphasis supplied)
The failure of an employer, such as petitioner, to offer new work assignments to its employees, such as private respondents, while a Complaint for Illegal Dismissal was pending before the Labor Arbiter, with the pendency of such Complaint already being beyond six (6) months from the time such employees were placed on “floating status”, results to the employer’s liability for constructive dismissal. Such a consequence is pursuant to the following pronouncement of the Supreme Court in Megaforce Security and Allied Services, Inc., and Raul Manalo vs. Henry Lactao and National Labor Relations Commission, G.R. No. 160940, July 21, 2008:
“However, in the present case, while the charge of illegal dismissal may have been premature because Lactao has not been given a new assignment or temporary ‘off-detail’ for a period of seven days only when he amended his complaint, the continued failure of Megaforce to offer him a new assignment during the proceedings of the case before the LA and beyond the reasonable six-month period makes it liable for constructive dismissal.
There is constructive dismissal if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it would foreclose any choice by him except to forego his continued employment. It 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.” (Emphasis supplied)
In addition, petitioner failed to sufficiently prove that no posts were available for private respondents so as to justify continuation of petitioner’s placing of private respondents on “floating status”. Private respondents were merely given Notices[28] to report to petitioner’s office, but no indication was given in the Notices[29] that private respondents were being assigned to particular posts. This was as also properly found by public respondent NLRC, to wit:
“Assuming for the sake of argument that complainants-appellees knew that they were being required to report to respondents-appellants’ office, still, it is clear from the notices that they were merely required to report and there was no mention of assigning them to a particular post.”[30] (Emphasis Supplied)
That an employer, such as petitioner, had the burden to prove the unavailability of posts where the security guards, such as petitioners, could be assigned, in order to justify the latter’s being on a “floating status”, is pursuant to the following pronouncement made by the Supreme Court in Nationwide Security and Allied Services, Inc., vs. Ronald P. Valderama, G.R. No. 186614, February 23, 2011:
“In cases involving security guards, a relief and transfer order in itself does not sever employment relationship between a security guard and his agency. An employee has the right to security of tenure, but this does not give him a vested right to his position as would deprive the company of its prerogative to change his assignment or transfer him where his service, as security guard, will be most beneficial to the client. Temporary off-detail’ or the period of time security guards are made to wait until they are transferred or assigned to a new post or client does not constitute constructive dismissal, so long as such status does not continue beyond six months.
The onus of proving that there is no post available to which the security guard can be assigned rests on the employer, viz.:
When a security guard is placed on a ‘floating status,’ he does not receive any salary or financial benefit provided by law. Due to the grim economic consequences to the employee, the employer should bear the burden of proving that there are no posts available to which the employee temporarily out of work can be assigned.” (Emphasis supplied)
All of these therefore showed that private respondents were constructively dismissed by petitioner.
Consequently, contrary to petitioner’s arguments in its assigned ground III, private respondents are entitled to the award of backwages and separation pay. That this is to be so is in accordance with the declaration of the Supreme Court in Genuino Ice Company, Inc., Hector S, Genuino and Edgar A. Carriaga vs. Eric Y. Laya and Eddie Boy Sodela, G.R. No. 190001, March 23, 2011, as follows:
“The CA was also correct in affirming the NLRC’s award of full backwages and separation pay in lieu of reinstatement. In FF Marine Corporation v. NLRC, we ruled that an illegally dismissed employee is entitled to reinstatement without loss of seniority rights and to other established employment privileges, and to his full backwages. In the event, reinstatement is no longer feasible, the employer must pay him his separation pay.” (Emphasis Supplied)
No cogent or compelling reason was therefore shown to justify any deviation from the following findings of the Labor Arbiter, which were in accordance with the facts and the law, and which were affirmed by public respondent NLRC:
“As to the relief, complainants, as an (sic) illegally dismissed employees, are entitled to the twin relief of reinstatement with backwages. However, considering the attendant circumstances, this office finds it more appropriate to grant complainants separation pay of one-month salary for every year of service. This would also be to the best interest of the parties considering that respondents contend that complainants have abandoned their work. Complainants should be paid separation pay of one-month salary for every year of service, in lieu of reinstatement. Thus, this office awards backwages from the time of dismissal on March 15, 2010 up to the date of the finality of this decision and separation pay of one month pay per year of service from the time of complainants’ employment also up to the date of the finality of this decision. Subject to recomputation upon finality, backwages are computed as follows: P10,504.00/mo. x 9 months or P94,536.00 for each complainant. Separation pay, also subject to recomputation, is computed at : (a) Edwin O. Frias P10,504.00/yr. of service x 14 years or P147,056.00; and, (b) Anselmo B. Gavanes P10,504.00/yr. of service x 15 years = P157,560.00.
On the complainants’ money claims, this office rules that complainants’ allegations on their money claims should at least have a modicum of admissibility in order for this office to take cognizance of and resolve the same. A perusal of the payslips presented by parties indicate that the rate used for the complainants was at least equal to the P382/day minimum wage. All other claims are dismissed for want of basis.”[31]
Indeed, the findings of the Labor Arbiter, when affirmed by the NLRC and supported by evidence on record as in this case, are accorded due respect and finality, and are binding upon the court.[32]
Thus, after careful consideration of all the facts, arguments, and issues appearing on the records, as well as of the pertinent laws and jurisprudence, the public respondent NLRC was shown not to have committed grave abuse of discretion, which in turn is meant as such capricious and whimsical exercise of judgment that is equivalent to an excess or lack of jurisdiction.[33]
IN VIEW OF ALL THESE, the Petition is DENIED.
SO ORDERED.
Dicdican, and Paredes, JJ., concur.
[1] Rollo, pp. 3-27.
[2] Rollo, pp. 30-37
[3] Rollo, pp. 39-42.
[4] Rollo, pp. 43-50.
[5] Rollo, pp. 30-37
[6] Rollo, pp. 31-33.
[7] Rollo, pp. 51-53.
[8] Rollo, p. 123.
[9]Rollo, pp. 30-37
[10] Rollo, p. 33.
[11] Rollo, pp. 123-128.
[12] Rollo, p. 128.
[13] Rollo, pp. 123-128.
[14] Rollo, p. 128.
[15] Rollo, pp. 30-37.
[16] Rollo, pp. 123-128.
[17] Rollo, pp. 43-50.
[18] Rollo, pp. 39-42.
[19] Rollo, pp. 3-28.
[20] Rollo, p. 26.
[21] Rollo, p. 10.
[22] Rollo, pp. 12-24.
[23] Rollo, p. 65-66. RVVSSI-HO Special Orders No. HO-10-OC-075 dated March 15, 2010 and RVVSSI-HO Special Orders No. HO-10-OC-077 dated March 15, 2010
[24] Rollo, pp. 51-52.
[25] Rollo, pp. 51-52.
[26] Rollo, pp. 51-53.
[27] Rollo, p. 36.
[28] Rollo, pp. 70-79.
[29] Rollo, pp. 70-79.
[30] Rollo, p. 36.
[31] Rollo, pp. 127-128.
[32] German Machineries Corporation vs. Eddie D. Endaya, G.R. No. 156810, November 25, 2004
[33] First Women’s Credit Corporation, et al. vs. Glicerio Perez, et al., G.R. No. 169026, June 15, 2006