In the recent case of Exocet Security and Allied Services Corp. and/or Ma. Teresa Marcelo vs. Armando D. Serrano (G.R. No. 198538, September 29, 2014) the Supreme Court clarified some of the rules concerning security guards on floating status. I have taken the liberty of summarising these rules, but I have more or less followed the exact words of the Supreme Court in the decision.
1. The “floating status” or temporary “off-detail” of security guards employed by private security agencies is 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. 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.
2. As the circumstance is generally outside the control of the security agency or the employer, the Court has ruled that when a security guard is placed on a “floating status,” he or she does not receive any salary or financial benefit provided by law.
3. 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.
4. To validly terminate a security guard for lack of service assignment for a continuous period of six months under Secs. 6.5 and 9.3 of DO 14-01, the security agency must comply with the provisions of Article 289 (previously Art. 283) of the Labor Code, which mandates that a written notice should be served on the employee on temporary off-detail or floating status and to the DOLE one (1) month before the intended date of termination.
5. In every case, the Court has declared that the burden of proving that there are no posts available to which the security guard may be assigned rests on the employer.
6. If after the period of 6 months, the security agency/employer cannot provide work or give assignment to the reserved security guard, the latter can be dismissed from service and shall be entitled to separation pay (viz., ½ month for every year of service, but not less than 1 month pay).
7. Security guards on reserved status who accept employment in other security agencies or employers before the end of the above six- month period may not be given separation pay.
8. 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. “Off-detailing” 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.
The Supreme Court ended its Decision with the following assurance of balanced protection to both management and labor:
As a final note, the Court reiterates that it stands to promote the welfare of employees and continue to apply the mantle of protectionism in their favor. Thus, employees, like security guards, should not be laid-off for an indefinite period of time. However, We hold that a similar protection should be given to employers who, in good faith, have exerted efforts to comply with the requirements of the law by offering reasonable work and appropriate assignments during the six-month period. After all, the constitutional policy of providing full protection to labor is not intended to oppress or destroy management, and the commitment of this Court to the cause of labor does not prevent Us from sustaining the employer when it is in the right, as in this case.