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Serrano is a security guard employed by Exocet. Prior to his replacement, he was assigned to client JG Summit Holdings for several years. For more than six months, he was not reassigned by Exocet, leaving him floating for more than six months which constitutes termination; therefore he filed a complaint for illegal dismissal alleging that Exocet violated his right to security of tenure.
The court said that while he was an EE in such a position, there was no showing bad faith in him. In fact, he was offered several positions but he declined them since he preferred VIP security. Exocet cannot be said to have constructively dismissed Serrano.
Whether or not Serrano was constructively dismissed.
The concept of “floating status” or temporary “off-detail” of security guards 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. It can happen when:
• The security agency’s clients decide not to renew their contracts with the agency
• Contracts for security services stipulate that the client may request the agency for the replacement of the guards assigned to it without cause
Since the circumstance is generally outside ER’s control, when a security guard is placed on a “floating status,” he or she does not receive any salary or financial benefit provided by law.
Due to the grim economic consequences to EE, ER should also bear the burden of proving that there are no posts available to which the EE temporarily out of work can be assigned.
Do-14-01 Sec. 6.5, in relation to Sec 9.3, also states that the lack of service assignment for a continuous period of 6 months is an authorized cause for the termination of the employee, who is then entitled to a separation pay equivalent to half-month pay per year of service.
As said, the burden of proving that there are no posts available is on the ER. EE 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 will be most beneficial to the client.
Here, Serrano was placed on floating status after his relief from his post as a VIP security by the client. Yet, there is no showing that Exocet acted in bad faith when it placed him on floating status.
Moreover, Exocet made an offer to Serrano to go back to work. It is just that the assignment (although it does not involve a demotion or diminution) was not the security detail desired by Serrano.
It is unfair and unacceptable to declare the mere lapse of 6 months of floating status as constructive dismissal, without looking into the peculiar circumstances that resulted in the security guard’s failure to assume another post.