Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. XI
Davao City
REYNALDO P. ESTEBAN, SR.,
Complainants,
- versus-

NLRC RAB- X1- 11-00842- 16

For: ILLEGAL DISMISSAL
With MONEY CLAIMS

MAGNOS SECURITY & INVESTIGATION

SERVICE, INC.,EUGENIO VIRGILIO
E. MAGNO- Vice- President/ STANFILCOA DIVISION OF DOLE PHILIPPINES
& ATTY. MARIANE ESTHER G.
ANICETO- Corp. Human Resources Director,
Respondents.
X - - - - - - - - - - - - - - - - - - - -/
POSITION PAPER FOR THE COMPLAINANT
COMES NOW, the Complainant, REYNALDO P. ESTEBAN, SR.,
duly assisted by the Ateneo de Davao Legal Aide Office through the undersigned
counsel, unto this Honorable Commission most respectfully states that:

THE PARTIES
COMPLAINANT REYNALDO P. ESTEBAN, JR. (ESTEBAN,SR.
for brevity) is a Filipino citizen, 54 years old, high-school graduate, separated,
and a resident of Purok Sampaguita, RGA Village, Agdao, Davao City, where, he
may be served with the summons, notices and other legal processes of the
Honorable Commission.
RESPONDENT

MAGNOS

SECURITY

&

INVESTIGATION

SERVICE, INC., (hereinafter referred to as MAGNOS SECURITY), is

private security agency/operator, together with its Vice- President Eugenio
Virgilio E. Magno, with the principal place of business at corner General Luna
Ext., Davao City. Also impleaded as Respondent is STANFILCO- A DIVISION OF
DOLE PHILIPPINES as principal/client of Magnos Security, represented by
ATTY. MARIANE ESTHER G. ANICETO, the Corporate Human Resources
Director, with the office address at Stanfilco, Doa Soccoro St., Belisario Heights
Subd., Lanang, Davao City.
_______________________________________
NLRC RAB X1- 11-00842- 16
Page 1 of 18

STATEMENT OF THE CASE

COMPLAINANT ESTEBAN, SR., filed a case against RESPONDENTS
MAGNOS SECURITY and STANFILCO- A DIVISION OF DOLE
PHILIPPINES for Illegal Dismissal and with Money Claims.

COMPLAINANT seeks that the RESPONDENTS (1) give him separation

pay, and (2) pay damages.
STATEMENT OF THE FACTS
1.

ESTEBAN, SR. was an employee of Magnos Security beginning February

1985 up to April 12, 2016 as security guard, without contract of
employment. Attached as Annex A is a copy of the Certificate of
Employment issued and signed by the operation/administrative officer of
the said security agency and the company Identification Card of the
complainant as Annex B.

2.

ESTEBAN, SR. was posted at RESPONDENT STANFILCO since he was

hired by Magnos Security for thirty one (31) years. ESTEBAN SR. had a six
(6) days a week work schedule, exclusive of breaks, and may be required to
work overtime. He received a daily salary rate of P336.36 paid every fifteen
days.

3.

Sometime in____, ESTEBAN, SR., together with other security guards of

Magnos Security were informed of the shortage of service assignments to
accommodate the number of active security guards under the agency.
MAGNOS SECURITY asked the consent of those present, including that of
ESTEBAN,SR. to decrease the number of workdays to five (5) days and
number of hours of work per day from twelve (12) hours to eight (8) hours.
The body therein agreed to the suggestion of Magnos Security.

4.

ESTEBAN, JR. had his last duty at STANFILCO on ____. He went to the
office of MAGNOS SECURITY several times to ask for a posting as it has
come to his knowledge that the other security guards are reverted to the
twelve (12)- hour duty except him. However, Merlyn Cuba, operation and
administrative officer of Magnos Security said that ESTEBAN,SR. has to
wait until there is an available service posting.
_______________________________________
NLRC RAB X1- 11-00842- 16
Page 2 of 18

5.

ESTEBAN, JR. while waiting for posting, went to his home province at
Matalam, North Cotabato and engaged in small-scale farming to augment
his income while waiting for posting.

6.

On July 14, 2016, a duty order was sent to him at his city address directing
him to report on July 20, 2016 at Stanfilco Dole Phil.- Belisario Heights,
Lanang for his assignment. ESTEBAN,SR. then reported to STANFILCO on
the said date. However, the security officer, Maynard Gabin of STANFILCO
was nowhere to be found.

7.

On August 3, 2016, another duty order was sent by MAGNOS SECURITY to

ESTEBAN,SR. at his city address directing him to report on August 7, 2016
at Stanfilco Dole Phil.- Belisario Heights, Lanang for his assignment.
ESTEBAN,SR. then reported to STANFILCO on the said date. However, the
same thing happened. Mr. Gabin was not present so ESTEBAN,SR. was not
given an assignment.

8.

On September 2, 2016, a third duty order was sent to ESTEBAN,SR.

directing him to report to on September 5, 2016 at Stanfilco Dole Phil.Belisario Heights, Lanang for his assignment. This time, it was only his son
who informed him of the said order as he was in Matalam, North Cotabato
upon receipt thereof. ESTEBAN,SR., after two futile instances, then called
STANFILCOS security officer, Mr. Gabin, to inform and ask confirmation
from the latter of the availability of assignment before travelling to Davao
City to cut expenses.

9.

In the same phone call, Mr. Maynard Gabin, STANFILCOS security officer
said that they are not in need of security guard but of a driver.
ESTEBAN,SR. then did not report to STANFILCOS office September 5,
2016 based on Gabins feedback.

10.

Aggrieved and feeling dodged upon, ESTEBAN,SR. filed before the National
Labor relations Commission (NLRC) a case for illegal dismissal and money
claims docketed as NLRC RAB- XI- 11-00842-16.

11.

On December 6, 2016, three (3) oclock in the afternoon, conciliation

proceeding were conducted before Labor Arbiter Hon. Merceditas C. Larida.
Present therein were ESTEBAN, SR., Mrs. Lelia Magno, Proprietor of
MAGNOS SECURITY and Atty. Aniceto for DOLE-STANFILCO. No
settlement was arrived Attached is the Minutes of the said proceeding as
_______________________________________
NLRC RAB X1- 11-00842- 16
Page 3 of 18

Annex _. The Labor Arbiter terminated the mandatory conference and

directed the parties to simultaneously submit their respective verified
position paper Attached is the order as Annex __.
12.

ESTEBAN,SR. is also asking for his separation pay and moral/ exemplary
damages as an effect to his unjustified cessation of his employment.

13.

Upon the request of ESTEBAN,SR., the deadline for the submission is on

December 21, 2016.

Hence, this position paper.

14.

Interestingly, HR manager stated on her letter dated September 17, 2015

that there is still no work available. However, other agents from the
aforementioned closed down account were assigned to another account
while others were temporarily assigned to HR office work.

15.

On October 05, 2015, hearing nothing from respondent IBEX despite

numerous attempts of following up his work status, complainant requested
before DOLE RO- XI through Single- Entry Approach (SENA) for possible
conciliation between complainant and respondent IBEX.

16.

On October 12, 2015, Marianne A. Valle, Recruitment Manager of IBEX

Global, wrote to SENA Desk Officer Mr. Jose Adrian M. Bugais for a
reschedule of the conciliation conference.

17.

On October 14, 2015 at 9:45 oclock in the morning, conciliation

proceedings proceeded. Both parties appeared. Attached is the Minutes of
the SENA as Annex _.

18.

Again, on October 19, 2015, parties met before SENA Desk Officer Bugais
for possible settlement. Complainant appeared for himself while respondent
IBEX was represented by its Recruitment Manager, Marianne A. Valle.
However, parties failed to reach an amicable settlement. As a consequence
thereto, complainant asked the SENA Desk Officer to endorse the case to
NLRC. Attached are SENA Minutes as Annex _ and SENA Referral Form
duly signed by SENA Desk Officer Baguis as Annex _.

19.

October 20, 2015, complainant wrote a letter of complaint through

electronic mail addressed to one Gilbert Santa Maria of IBEX, expressing
_______________________________________
NLRC RAB X1- 11-00842- 16
Page 4 of 18

his frustrations on the poor handling of his case by IBEX Davao HR

manager and Site Director. A copy of the correspondence is herein attached
as Annex_.
20. On the same day at 3 o clock in the afternoon, desperate and lost in
quandary, complainant filed before this Honorable Commission a complaint
docketed as NLRC RAB- XI- 10- 00730- 15 for illegal dismissal with money
claims. Attached is the complaint as Annex_.
21.

On October 21, 2015, Eric Kaufman, Senior Vice President and General
Manager of IBEX Global Philippines, replied to the email of complainant
Bisquera. In the said letter, Kaufman pointed out that IBEX placed
complainant on floating status as an exercise of its management prerogative
allegedly as provided for by labor law, despite the fact that complainant had
already orally communicated to IBEX HR Manager that he would resign
rather than be placed on floating status. A copy of the correspondence is
herein attached as Annex_.

22.

Complainant did not receive the appropriate pay for the overtime work he
had rendered, which was equivalent to ___ a day. The complainant could
not present the daily time record as it is under the custody of the herein
respondents;

23.

The complainant was likewise not paid of the holiday pay due to him under
the labor standards law. The complainant was likewise required to work on
all

holidays

within

the

dates

of

his

employment,

to

wit:

___________________.
24.

Within the period of his employment, the complainant has not availed of his
service incentive leaves nor was he given the amount equivalent thereof.

25.

Complainant is also asking for his separation pay and moral/ exemplary
damages as an effect to his unjustified cessation of his employment.

26.

On November 25, 2015 at 10 o clock in the morning, the parties,

complainant and IBEX representative Sandra Mae Cases, met before the
Honorable NLRC for mediation conference. However, no settlement was
reached. Attached is the Minutes of the said proceeding as Annex _. The
Labor Arbiter terminated the mandatory conference and directed the

_______________________________________
NLRC RAB X1- 11-00842- 16
Page 5 of 18

parties to submit their respective verified position paper within ten (10)
days from the receipt of the order. Attached is the order as Annex __.
27.

On motion of both parties, the deadline for the submission is extended until
December 17, 2015.
Hence, this position paper.

ISSUES TO BE TRIED OR RESOLVED

I.
II.

Whether
an
employer-employee
ESTEBAN,SR. and RESPONDENTS;

relationship

exists

between

Whether ESTEBAN,SR. was a Regular Employee;

III.

Whether ESTEBAN SR. was illegally or constructively dismissed;

IV.

Whether ESTEBAN,SR. was afforded due process when he was dismissed

by RESPONDENT MAGNOS SECURITY warranting award of damages;
and

V.

Whether or not ESTEBAN,SR. is entitled to separation pay.

ARGUMENTS AND DISCUSSIONS

I.

An
employer-employee
relationship
exists
between
ESTEBAN,SR. and RESPONDENT MAGNOS SECURITY.

The issue of illegal dismissal is premised on the existence of an employeremployee relationship between the parties.1 The determination of the existence of
an employer-employee relationship is defined by law according to the facts of
each case, regardless of the nature of the activities involved.2
Under DOLE Department Order No. 14 Series of 2001 laying down
the guidelines governing the employment and working conditions of security
guards and similar personnel in the private security industry, the security service
contractor is the employer of its security guard and similar personnel. The
principal where the security guard is assigned is considered an indirect
employer for unpaid wages and other wage related benefits based on joint and
several liability of principal to the service contractor. 3

II.

ESTEBAN, SR. IS A REGULAR EMPLOYEE OF MAGNOS

SECURITY

New Philippine Skylanders, Inc.,et.al., vs Francisco N. Dakila, G.R. No. 199547,

September 24, 2012
2
Remington Industrial Sales Corporation vs Erlinda Castaeda, G.R. No. 169295-96,
November 20,2006
3
Section 3.1 of DO No. 14, Series of 2001
_______________________________________
NLRC RAB X1- 11-00842- 16
Page 6 of 18
1

Article 294 of the Labor Code Provides that an employment shall be deemed
to be regular where the employee has been engaged to perform activities which
are usually necessary or desirable in the usual business or trade of the employer.
Here, ESTEBAN,SR. was employed as security guard of MAGNOS
SECURITY. He was in active service for thirty-one (31) years reporting for duty at
STANFILCO under the employment of MAGNOS SECURITY.
The conclusion is solidified by Department Order No. 14 Series of 2001
that any security guard or similar personnel in the private security industry who
is allowed to work after the probationary period shall be considered a regular
employee.4 Hence, ESTEBAN,SR. is a regular employee necessarily engaged in
the regular and usual business of MAGNOS SECURITY as security agency.

III.

Esteban, Sr.s status is equivalent to constructive dismissal

The Supreme Court ruled in Vicente C. Tatel v. JLFP Investigation
Security Agency, Inc5., citing Superstar Security Agency, Inc. and/or Col.
Andrada v. NLRC6 that placing an employee on temporary "off-detail" is
not equivalent to dismissal provided that such temporary inactivity should
continue only for a period of six (6) months. In security agency parlance,
being placed "off-detail" or on "floating status" means "waiting to be
posted." In Salvaloza v. NLRC7, the Court further explained the nature of
the "floating status," to wit: 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 by him except to forego his
continued employment.8 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 pay9.

4
5

Section 3.3 of DO No. 14 Series of 2001

G.R. No. 206942, February 25, 2015

262 Phil. 930 (1990)

G.R. No. 182086, November 24, 2010, 636 SCRA 184
8
Fungo v. Lourdes School of Mandaluyong, G.R. No. 152531, July 27, 2007, 528 SCRA 248, 256-257
9
Duldulao v. Court of Appeals, G.R. No. 164893, March 1, 2007,
_______________________________________
NLRC RAB X1- 11-00842- 16
Page 7 of 18
6
7

The continued failure of Magnos Security to offer Esteban Sr. to

offer him a new assignment during the proceedings of the case before the
Labor Arbiter and beyond the six-month period makes respondent liable for
constructive dismissal.

IV.

MABAYAO was illegally dismissed.

In cases of regular employment, the employer shall not

terminate the services of an employee except for a just
cause or when authorized by this Title. 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
from him up to the time of his actual reinstatement. 10
An employer may terminate an employment for any of
the following causes:11
a) Serious misconduct or willful disobedience by the
employee of the lawful orders of his employer or
representative in connection with his work;
b) Gross and habitual neglect by the employee of
his duties;
c) Fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized
representative;
d) Commission of a crime or offense by the employee
against the person of his employer or any immediate
member of his family or his duly authorized
representatives; and
e) Other causes analogous to the foregoing.
Abandonment of job is a form of neglect of duty. 12
To constitute abandonment, two elements must concur:
(1) the failure to report for work or absence without
valid or justifiable reason, and (2) a clear intention to
sever the employer-employee relationship, with the
second element as the more determinative factor and being
manifested by some overt acts. Mere absence is not
sufficient. It is the employer who has the burden of proof to
10
11
12

Article 293 of the Labor Code of the Philippines as amended

Article 296 of the Labor Code of the Philippines as amended
Azucena, C. Jr. (2013) Everyones Labor Code.
_______________________________________
NLRC RAB X1- 11-00842- 16
Page 8 of 18

show a deliberate and unjustified refusal of the employee to

resume his employment without any intention of returning. 13
The two elements of abandonment is not present in this
case. First, MABAYAO did not fail to report on his duty. He
was told to rest while waiting for his new assignment.
Second, while MABAYAO did work with Bisda Security
Agency, there is no intention of abandonment of work
because he is merely utilizing his time while on call with Ace
Star. He is willing to come back whenever called by Ace Star.
In fact, in December 5, 2015, MABAYAO went to Ace Star
office to follow up on his assignment only to find out that he
was already terminated.
Finding no valid cause in the instant case, it leads to no
other conclusion than that MABAYAO was illegally dismissed
from employment.

V.

MABAYAO was not afforded due process when he

was dismissed by RESPONDENT ACE STAR
warranting award of Damages

Supreme Court held in one case14 that Having found that

respondents are regular employees who may be, however,
dismissed for cause as we have so found in this case, there
is a need to look into the procedural requirement of due
process in Section 2, Rule XXIII, Book V of the Rules
Implementing the Labor Code. It is required that the
employer furnish the employee with two written notices: (1)
a written notice served on the employee specifying the
ground or grounds for termination, and giving to said
employee reasonable opportunity within which to explain his
side; and (2) a written notice of termination served on the
employee indicating that upon due consideration of all the
circumstances, grounds have been established to justify his
termination.
The twin requirements of notice and hearing constitute
the elements of [due] process in cases of employee's
dismissal. The requirement of notice is intended to inform
the employee concerned of the employer's intent to dismiss
and the reason for the proposed dismissal. Upon the other
hand, the requirement of hearing affords the employee an
opportunity to answer his employer's charges against him

13
14

Labor, et al vs NLRC, G.R. No. 110388, September 14, 1995

Lynvil Fishing Enterprises, Inc. vs Ariola, et al., G.R. No. 181974, February 1, 2012
_______________________________________
NLRC RAB X1- 11-00842- 16
Page 9 of 18

and accordingly, to
dismissal is effected.15

defend

himself

therefrom

before

Applying it in this case, there was not even one notice

furnished to MABAYAO. He was dismissed without anything
given to him disregarding almost 15 years of service
rendered to the agency. This clearly warrants damages to
MABAYAO because his rights are obviously violated.

VI.

MABAYAO
is
separation pay

entitled

to

backwages

and

A case in point is the case of Bani Rural Bank Vs De Guzman, et al. 16 ,

whereby the Supreme Court held that:
Article 279 of the Labor Code, as amended, provides
backwages and reinstatement as basic awards and
consequences of illegal dismissal:
Article 279. Security of Tenure. -x x x 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 from him up to the time of his actual
reinstatement.
"By jurisprudence derived from this provision,
separation pay may [also] be awarded to an illegally
dismissed employee in lieu of reinstatement." Section
4(b), Rule I of the Rules Implementing Book VI of the
Labor Code provides the following instances when the
award of separation pay, in lieu of reinstatement to an
illegally dismissed employee, is proper: (a) when
reinstatement is no longer possible, in cases where the
dismissed employee s position is no longer available;
(b) the continued relationship between the employer
and the employee is no longer viable due to the
strained relations between them; and (c) when the
dismissed employee opted not to be reinstated, or the
payment of separation benefits would be for the best
interest of the parties involved. In these instances,
separation pay is the alternative remedy to
reinstatement in addition to the award of
backwages. The payment of separation pay and
Rubia v. NLRC, Fourth Division, et. al, G.R. No. 178621, 26 July 2010
G.R. No.170904, November 13, 2013
_______________________________________
NLRC RAB X1- 11-00842- 16
Page 10 of 18

15
16

reinstatement are exclusive remedies. The payment of

separation pay replaces the legal consequences of
reinstatement to an employee who was illegally
dismissed.
Thus, an illegally dismissed employee is entitled to
two reliefs: backwages and reinstatement. The two
reliefs provided are separate and distinct. In instances
where reinstatement is no longer feasible because of
strained relations between the employee and the
employer, separation pay is granted. In effect, an
illegally dismissed employee is entitled to either
reinstatement, if viable, or separation pay if
reinstatement is no longer viable, and backwages.
From the facts of this case, it logically follows that
MABAYAO is entitled to backwages and separation pay.
PRAYER
WHEREFORE, it is most respectfully prayed for this
Honorable Labor Arbiter that judgment be rendered in favor
of the complainant by:
a. Declaring the complainants dismissal as illegal and
that he has been grossly underpaid;
b. Ordering respondent Ace Star to:
i. Pay complainant underpayments of his minimum
wage as mandated by RTWPB, Holiday Pay,
Premium for Rest Day, Overtime Pay, Allowances,
13th month pay, Service Incentive Leave Pay;
ii. Pay complainant the remaining balance of his cash
bond not released to him;
iii. Pay complainant backwages computed from the
time his compensation was withheld from him;
iv. Pay complainant his separation pay equivalent to
one (1) month salary for every year of service;
v. Pay complainant damages because the dismissal
was attended by bad faith and/or constituted an
act oppressive to labor and was done in a manner
contrary to morals, good customs and public
policy.
c. Ordering respondent Marfori to pay solidarily with Ace
Star the enumerations above in accordance to
complainants employment with him.
d. Granting the complainant other reliefs which are just
and equitable under the aforementioned circumstances.
_______________________________________
NLRC RAB X1- 11-00842- 16
Page 11 of 18

Respectfully submitted this ___ of February, 2016,

Davao City.
ISSUES
I. Whether or not there was constructive/illegal
dismissal of the Complainant Bisquera;
II. Whether or not complainant is entitled to money
claims.

DISCUSSIONS
I. Complainant Bisqueras floating
status is tantamount to constructive
dismissalThe Supreme Court defined the concept of constructive dismissal in the case
of Blue Dairy Corp. vs. NLRC17 as:
Constructive dismissal refers to an involuntary resignation
resorted to when continued employment becomes impossible,
unreasonable or unlikely; when there is a demotion in rank or a
diminution in pay; or when a clear discrimination, insensibility or
disdain by an employer becomes unbearable to an employee or an
unwarranted transfer or demotion of an employee, or other
unjustified action prejudicial to the employee. The employer has to
prove that such managerial actions do not constitute constructive
dismissal.
It also explained the concept of floating status in EXOCET SECURITY
AND ALLIED SERVICES CORPORATION and/or MA. TERESA
MARCELO vs. ARMANDO D. SERRANO18 as:
While there is no specific provision in the Labor Code which
governs the "floating status" or temporary "off-detail" of security
guards employed by private security agencies, this situation was
considered by this Court in several cases as a form of temporary
retrenchment or lay-off. The concept has been defined 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.
In this instant case, complainant, who is a call- center agent was placed in a
floating status after the account of his teams client was closed. Under the
Employment Contract that was duly signed by the complainant and respondents
17
18

314 SCRA 401

G.R. No. 198538, September 29, 2014
_______________________________________
NLRC RAB X1- 11-00842- 16
Page 12 of 18

recruitment director, it provided a provision (Section 6) governing termination of

employment, wherein it says:
Should the client account to which you are assigned withdraw or
discontinue business with IBEX Global Solutions Philippines, Inc.,
or should the servicing of said account cease, your employment
with the company shall likewise by deemed terminated.
To put it simply, once the account is terminated, agents who are under it
are also deemed terminated. Nothing in the said contract deals or even mentions
about placing an affected employee in a floating status. Quoting Atty. Joseph
Angelo Angel in his column, To be fair to the employee, however, he must be
clearly informed at the time of hiring that his employment is subject to
fluctuations or the exigencies of the business and that he may be placed as a
consequence on "floating status" from time to time 19. In this case however,
placing complainant in floating status is not justified for never was he briefed nor
any provision in the employment contract informed him of the possibility of
being placed in floating status.
Contrary therewith, the respondent did not terminate the complainant in
pursuant to the aforementioned provision but instead placed him arbitrarily in a
floating status. Through IBEX Vice President in his reply stated that they did
not exercise its right to terminate the employment is due to the reason that they
are looking for possible re-assignments for the time remaining in the six- month
period mandated by law. While it may seem favorable for the complainant, the
instability and uncertainty engendered by the floating status arrangement is not
beneficial to the employees. It brings disastrous economic impact especially for
employees like the complainant that feeds the mouth of his family. Therefore, the
company must ensure that it has taken good faith and outmost effort to carry out
its assurances. If not, then respondent should have allowed complainant to resign
from his employment and find another job.
In the same case of Exocet vs. Serrano, 20 the Court said:
Verily, a floating status requires the dire exigency of the
employers bona fide suspension of operation of a business or
undertaking. In security services, this happens when the security
agencys clients which do not renew their contracts are more than
those that do and the new ones that the agency gets. Also, in
19

Angel, Joseph Angelo., September 25, 2012 Temporary layoff: A concern in call centers retrieved from
http://www.bworldonline.com/content.php?section=Opinion&title=Temporary-layoff:-A-concern-in-callcenters&id=59070
20
Ibid.
_______________________________________
NLRC RAB X1- 11-00842- 16
Page 13 of 18

instances when 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, the replaced security guard
may be placed on temporary "off-detail" if there are no available
posts under respondents existing contracts.
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)
It must be emphasized, however, that although placing a security
guard on "floating status" or a temporary "off-detail" is
considered a temporary retrenchment measure, there is
similarly no provision in the Labor Code which treats of
a temporary retrenchment or lay-off. Neither is there any
provision which provides for its requisites or its duration.
Nevertheless, since an employee cannot be laid-off indefinitely,
the Court has applied Article 292 (previously Article 286) of the
Labor Code by analogy to set the specific period of temporary
lay-off to a maximum of six (6) months. The said provision states:
ART. 292. When employment not deemed terminated.- The
bonafide 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
ifhe 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.
Thus, this Court has held, citing Sebuguero v. NLRC, that the
placement of the employee on a floating status should not last for
more than six months. After six months, the employee should be
recalled for work, or for a new assignment; otherwise, he is
deemed terminated.
There is no specific provision of law which treats of a temporary
retrenchment or lay-off and provides for the requisites in
effecting it or a period or duration therefor. These employees
cannot forever be temporarily laid-off. To remedy this situation
or fill the hiatus, Article 286 [now 292] may be applied but only
by analogy to set a specific period that employees may remain
temporarily laid-off or in floating status. Six months is the period
set by law that the operation of a business or undertaking may be
suspended thereby suspending the employment of the employees
concerned. The temporary lay-off wherein the employees likewise
cease to work should also not last longer than six months. After
six months, the employees should either be recalled to work or
permanently retrenched following the requirements of the law,
and that failing to comply with this would be tantamount to
dismissing the employees and the employer would thus be liable
for such dismissal.
_______________________________________
NLRC RAB X1- 11-00842- 16
Page 14 of 18

In the case at hand, it must be noted that IBEX cannot claim the six month
period as a right to its management prerogative. The Supreme Court in a number
of cases recognizes that no specific provision of law which treats of a temporary
retrenchment or floating status. The period given is not a right given to the
employers to deprived employees of work in the guise of temporary lay- off but
the period is to prevent employees to be forever temporary laid- off. In applying
the same provision, there is a caveat that those who are placed in floating status
must be prioritized in new assignments. However, in this case, despite the
existence of floating status, the company has continuously hired new agents.
Therefore by analogy, it cannot be said that there is a justifiable temporary
suspension of operation to place complainant in prolonged agony of remaining as
employee of IBEX but receiving no pay nor any other financial benefits. The
Labor Laws are created to level the industry for both the employee and the
employer. If it shall be used and construed to deprive and oppress the laborer of
what it is due as well as hurting the rights of management, then labor laws
become futile. Circumstances must be looked upon to justify the period of the
floating status. In this case, the poor handling of complainants floating status
does not in any way, justify or become beneficial.
The complainant has also manifested to the HR that he is not signing the
Notice of Temporary Displacement because he is not in favor of the floating
status. Upon his conferment with the HR manager he again expressed his
sentiment regarding the floating status. Much to his dismay, the efforts made by
the respondent company to act on his case is inutile. While they claim that they
are still looking for possible re-assignment of the complainant, other team
members were already placed to another accounts or temporary work
assignments and worse, they even continuously hired call center agents.
Left in desperation to earn, the complainant was moved to express orally
his desire to resign to the HR manager. He explained that he cannot anymore
afford to be in floating status given his personal circumstance of being the bread
winner of his family and providing for the medical needs of his 74- year old ailing
mother. However, said resignation was subtlety denied by the fain assurance of
the company to look for re-assignment.
IBEX now cannot claim good faith or acting on benevolence and
compassion while it did not heed the request of the party to formally terminate
him instead to enable him to find another opportunity to earn. The Constitution
guarantee the rights of all workers to security of tenure 21 but it also protects
laborer from involuntary servitude. By not taking action to his resignation, it can
be gleamed upon that there is an utter disregard of his right not to be subjected to
involuntary service which even the constitution frowns upon. What IBEX
manifested was self-interest rather than valuing the services of its agents.
In status quo, floating status is being practiced in security industry
wherein security agencies can place security guards on floating status while
waiting for new assignment. It means that employment is not severed but is just
temporarily suspended without pay. With the growth of Business Process
Outsourcing in the Philippines and given its nature of business, floating status is
commonly practiced. However, if practiced arbitrarily as in the case at hand,
many BPO employees shall be placed in a very disadvantageous position, robbing
them of their honest living and left without any security in their employment,
such in the case of complainant Bisquera.
Therefore, given the lack of sincerity of the company to find him another
assignment at the soonest possible period and discrimination in the workplace as
21

Art. 13, Sec. 3, 1987 Philippine Constitution

_______________________________________
NLRC RAB X1- 11-00842- 16
Page 15 of 18

evidenced by the Notice of Disengagment and the denial of his resignation, can be
said as tantamount to constructive dismissal which entitles complainant to its
money claims prayed for.
II. Complainant Bisquera is entitled to money claimsComplainants claims that within the period of his employment, he was not
paid of any overtime pay (art. 87), premium pay for rest day / holiday pay (Art.
91- 93), vacation/ sick leave pay and unused service incentive leave pay (Art. 95).
They clearly do not fall under the exceptions provided under the Book III, Rule IV
of the Implementing Rules.
Likewise, on account of the complainants rendition of work beyond eight
hours within his 24-hour workdays on the above-mentioned dates, he is entitled
to overtime work pay as provided under Article 87 of the Labor Code.
Also, given the compulsion to protect his right by legal means,
complainant is also claiming 10% Attorneys Fee pursuant to Art. 2208(2) of the
New Civil Code and Art. 111 of the Labor Code.
PRAYER
WHEREFORE, premises considered, it is most respectfully prayed of the
Honorable

Commission

that

judgment

be

rendered

DECLARING

the

complainant REYNALDO P. ESTEBAN, SR as illegally/constructively terminated,

and ORDERING the respondents to pay jointly and severally the accrued Holiday
Pay, Overtime Pay, Sick Leave Pay, premium pay, service incentive leave pay plus
the nominal damages of P30, 000.00 for failure of the respondent to comply with
the procedural requirements of termination of employment to the complainant.
Considering the hostile working environment and strained relationship of
the complainant and respondents, it is also prayed for that separation pay shall
be paid in lieu of reinstatement.
Other relief and remedies are also prayed for.
Respectfully submitted. 19 December 2016, Davao City, Philippines.

REYNALDO P. ESTEBAN, SR.,

Complainant

_______________________________________
NLRC RAB X1- 11-00842- 16
Page 16 of 18

Assisted By:
ATENEO DE DAVAO LEGAL AIDE OFFICE
2/F Dotterweich Bldg., Ateneo de Davao University,
Jacinto St., Davao City
By:
ATTY. MANUEL M. QUIBOD
Roll of Attorneys No.
IBP No.
MCLE Compliance No.
Republic of the Philippines}
In the City of Davao} S.s
X --------------------------------/
VERIFICATION/ CERTIFICATION
I, REYNALDO P. ESTEBAN, SR., of legal age, separated and a resident of Davao
City, after having been sworn to in accordance with law, depose and state that:
I am the complainant in the above-captioned case.
I have caused the preparation of the foregoing Position Paper.
I have read the contents of the said Position Paper.
I understand all the allegations contained therein and that the same are true
and correct to the best of our personal knowledge and belief.
I certify that we have not heretofore commenced any action or proceeding
involving the same issues raised in this Memorandum before the Supreme Court,
the Court of Appeals, or different divisions thereof, or any tribunal or agency and
to the best of my knowledge, no such action or proceeding is pending in the
Supreme Court, Court of Appeals, or different divisions thereof, or tribunal or
agency.
Should I learn that a similar action or proceeding has been filed or pending
before the same courts, we shall notify the court, tribunal, agency within five (5)
days from such notice.
IN WITNESS WHEREOF, I have hereunto affixed my signature this __
December 2016 at Davao City, Philippines.

REYNALDO P. ESTEBAN, SR.,

Affiant
SUBSCRIBED AND SWORN TO before me this _______ at Davao
City,
Philippines,
the
Affiants
exhibiting
to
me
__________________________.
cc:
MAGNOS SECURITY & INVESTIGATION SERVICE, INC.,
EUGENIO VIRGILIO E. MAGNO- Vice- President/
_______________________________________
NLRC RAB X1- 11-00842- 16
Page 17 of 18

STANFILCO- A DIVISION OF DOLE PHILIPPINES & ATTY. MARIANE

ESTHER G. ANICETO- Corp. Human Resources Director
Registry
Receipt No. __________
Date:
______________________
EXPLANATION
The service of this position paper to the adverse party is by registered mail
due to the lack of personnel to effect personal service.

_______________________________________
NLRC RAB X1- 11-00842- 16
Page 18 of 18