Floating status of more than six months is dismissal

Dear PAO,

My husband has been working as a security guard in a security agency in Quezon City since 2005. However, he was not given a new assignment after the company where he was previously assigned has closed its operations. When my husband asked his operations manager for an assignment, he was told that he was on floating status. Can my husband file a case for illegal dismissal against the security agency?

Lisa

Dear Lisa,

We can only imagine the difficulty of the situation where your husband is in. The lack of assignment of your husband necessarily puts your whole family’s finances into a tight spot. We understand your desire to seek redress for this very unfortunate situation. However, we must emphasize that putting a security guard on floating status is not per se violative of his labor rights.

Temporary “off-detail” or “floating status” was defined as 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 (Salvaloza vs. NLRC, G.R. No. 182086, November 24, 2010). Being on “off-detail” is not equivalent to dismissal so long as such status does not continue beyond a reasonable time. A security guard who was on “floating status” for more than six months may be considered to have been constructively dismissed (Megaforce Security and Allied Services, Inc. vs. Lactao, G.R. No. 160940, July 21, 2008).

You did not mention in your letter the time when your husband has been on floating status. Nevertheless, the fact that your husband was placed on “floating status” by his operations manager does not necessarily give him the right to file a case for illegal dismissal against his employer. It is only if his status continued for more than six months will he may be considered to have been constructively dismissed. In which case, he may institute an illegal dismissal case against his security agency before the National Labor Relations Commission. If your husband can successfully prove his case, he will be reinstated from his job and will be awarded full backwages.

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. –Persida Acosta, Manila Times

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.