Dear PAO,

My father works as a security guard in a security agency for twenty (20) years, which allowed him to send us to school. However, without any explanation, he was placed on floating status by said agency for seven (7) months already.

My father, worried how it will affect his retirement, contemplates to seek the assistance of the National Labor Relations Commission (NLRC). He is due to retire two (2) years from now. Last week, however, my father received a return to work notice from them. Should he follow the return-to-work notice? We hope you can give us guidance.

Maya

Dear Maya,

Article 301 (formerly Article 286) of the Labor Code provides that temporary lay-off of an employee must be based on a valid reason or bona fide suspension of operation, business, or undertaking of an employer, to wit:

“ARTICLE 301. [286] When Employment not Deemed Terminated. — The bona fide 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 if he 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, your father may already file a case for constructive dismissal with the NLRC since his floating status is already for more than six (6) months.

Now, a careful reading of the return-to-work notice is proper. You have to check if the return-to-work notice indicated a specific assignment, and when the same would commence, e.g., ABC Mall, beginning 01 July 2025. However, if the return-to-work notice merely indicates that your father should report to the security agency’s office within a certain period for a possible assignment, or does not indicate any at all, then said return-to-work notice is not sufficient. As declared in the Supreme Court case of Hamid vs. Gervasio Security and Investigation Agency, Inc., et al, 27 July 2022, through Honorable Associate Justice Samuel H. Gaerlan:

“In a plethora of cases, We have emphasized that a security guard’s employer must give a new assignment to the employee within six months. This assignment must be to a specific or particular client. ‘A general return-to-work order does not suffice.’ Otherwise stated, jurisprudence requires not only that the employee be recalled to the agency’s office, but that the employee be deployed to a specific client before the lapse of six months. In the case of Ibon v. Genghis Khan Security Services, (Ibon Case), it has been clarified that:

“Respondent could not rely on its letter requiring petitioner to report back to work to refute a finding of constructive dismissal. The letters, dated Nov. 5, 2010 and Feb. 3, 2011, which were supposedly sent to petitioner merely requested him to report back to work and to explain why he failed to report to the office after inquiring about his posting status. More importantly, there was no proof that petitioner had received the letters.

“In Tatel v. JLFP Investigation (JLFP Investigation), the Court initially found that the security guard was constructively dismissed notwithstanding the employer’s letter ordering him to report back to work. It expounded that in spite of the report-to-work order, the security guard was still constructively dismissed because he was not given another detail or assignment. On motion for reconsideration, however, the Court reversed its ruling after it was shown that the security guard was in fact assigned to a specific client, but the latter refused the same and opted to wait for another posting.

“A holistic analysis of the Court’s disposition in JLFP Investigation reveals that: 1 an employer must assign the security guard to another posting within six (6) months from his last deployment, otherwise, he would be considered constructively dismissed; and 2 the security guard must be assigned to a specific or particular client. A general return-to-work order does not suffice.”

Thus, if the return-to-work notice that your father received does not indicate a specific assignment, the same does not suffice.

We hope that we are able to answer your queries. 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.

We appreciate your trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]