Discrimination constitutes constructive dismissal

Persida Acosta

Persida Acosta

Dear PAO,
My friend was employed as a security guard in a security agency. He worked there for almost 15 years and was constantly deployed in client malls. One time, he was absent from work because of a personal reason and this matter was reported by the mall to the security agency. The agency sacked him and he was not given any assignment for nine months.

Whenever he would inquire as his new post, the security agency would claim that there is no new client who is in need of a security guard. But, my friend said the security agency is hiring new security guards for immediate deployment. Can my friend file a case against the security agency?

Dear Berting,
Your friend can file a complaint for constructive dismissal against the Security Agency because he was placed under floating status for more than six (6) months. In Salvaloza vs. NLRC (G.R. No. 182086, November 24, 2010), the Supreme Court said:

“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 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 even for want of cause, such that the replaced security guard may be placed on temporary off-detail if there are no available posts under the agency’s existing contracts. During such time, the security guard does not receive any salary or any financial assistance provided by law. 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.“

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 except to forego continued employment. It exists when 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”.

Please be guided also by the provisions of Section 1 (a), Article 228, Republic Act No. 10396 which provides that: “(A)ll issues arising from labor and employment shall be subject to mandatory conciliation-mediation.” Section 1 (b) also provides that any or both parties involved in the dispute may pre-terminate the conciliation-mediation proceedings and request referral or endorsement to the appropriate Department of Labor and Employment (DOLE) Agency or Office which has jurisdiction over the dispute, or if both parties so agree, refer the unresolved issues to voluntary arbitration.

Your friend’s complaint against his employer should be referred first to the DOLE’s Single Entry Approach (SEnA). The latter’s purpose is to provide speedy, impartial, inexpensive and accessible settlement procedure for all labor issues.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net


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1 Comment

  1. What happens if the agency is owned (almost all agencies) by top government officials like a former president of the Philippines, retired generals, policemen? Will the case be heard before a Philippines court? Will the case be decided in favor of the complainant? I doubt it. Only in the Philippines that retired government officials, military and policemen monopolized security agencies. These people are so GREEDY of money at the expense of the employees. May these owners of agencies rot in hell.