SECOND DIVISION

[G.R. No. 221085. June 19, 2017.]

RAVENGAR G. IBON , petitioner, vs. GENGHIS KHAN SECURITY

SERVICES and/or MARIETTA VALLESPIN , respondents.

DECISION

MENDOZA , J : p

This petition for review on certiorari seeks to reverse and set aside the July 3,
2015 Decision 1 and October 13, 2015 Resolution 2 of the Court of Appeals (CA) in CA-
G.R. SP No. 125948, which a rmed the April 24, 2012 Decision 3 and the May 22, 2012
Resolution 4 of the National Labor Relations Commission (NLRC) in NLRC LAC No. 01-
000503-12(8)/NLRC NCR CN. 05-07463-11, a case for illegal dismissal.
Ravengar G. Ibon (petitioner) was employed as a security guard by Genghis Khan
Security Services (respondent) sometime in June 2008. He was initially assigned to a
certain Mr. Solis in New Manila, Quezon City. In July 2008, he was transferred to the 5th
Avenue Condominium in Fort Bonifacio, Taguig City, in September 2008 and was
posted there until May 2009. 5
In June 2009, petitioner was transferred to the Aspen Tower Condominium until
his last duty on October 4, 2010. Thereafter, respondent promised to provide him a new
assignment, which, however, did not happen. 6
On May 10, 2011, petitioner led a Complaint 7 against respondent for illegal
dismissal, with claims for underpayment of wages, holiday and rest day premiums,
service incentive leave pay, non-payment of separation pay, and reimbursement of
illegal deductions. 8 He alleged that he was no longer assigned to a new post after his
last duty on October 4, 2010; that he was merely receiving a daily salary of P384.00;
and that in the course of his employment, respondent would deduct P200.00 per month
as cash bond from September 2008 until September 2010. 9
For his part, respondent denied that petitioner was placed on a floating status for
more than six (6) months. It claimed that he was suspended on October 4, 2010 for
sleeping on the job. Respondent added that petitioner was endorsed to another client
for re-assignment, which the latter refused because his license was due for renewal.
Since then, petitioner failed to report for work. 1 0
Sometime in November 2010, petitioner went to respondent's o ce to claim his
13th month pay, but the same was not given to him because it was not yet due.
Respondent then received a call from the Department of Labor and Employment (DOLE)
regarding petitioner's claim for 13th month pay, which was later on settled during the
proceedings before the DOLE. It then sent letters to petitioner requiring him to report
for work, but he did not show up. Hence, respondent was surprised to receive
summons regarding the complaint for illegal dismissal. 1 1
The LA Ruling

In its November 29, 2011 Decision, 1 2 the Labor Arbiter (LA) declared petitioner
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 to have been constructively dismissed because of respondent's failure to put him on
duty for more than six (6) months. It ordered respondent to pay petitioner backwages
from May 5, 2011, the effective date of the constructive dismissal. The LA also granted
petitioner's prayer for separation pay in view of the parties' strained relationship, as well
as his claims for wage differential, service incentive leave pay and reimbursement of his
cash bond.
Aggrieved, respondent appealed to the NLRC.
The NLRC Ruling

In its April 24, 2012 Decision, the NLRC reversed and set aside the decision of the
LA. It opined that there was no constructive dismissal because respondent did not
intend to inde nitely place petitioner on a oating status. The NLRC noted that
respondent sent letters to petitioner requiring him to report back to work within the six-
month period. It added that respondent offered to reinstate petitioner during the
proceedings before the LA, but the said offer was rejected by the latter.
Further, the NLRC pointed out that even if the letters were not received by
petitioner, respondent's act of sending them showed that it did not wish to sever the
employer-employee relationship. It, nevertheless, sustained the money claims awarded
by the LA.
Petitioner moved for reconsideration, but his motion was denied by the NLRC in a
Resolution dated May 22, 2012.
Undaunted, petitioner filed a petition for certiorari before the CA.
The CA Ruling

In its assailed Decision, dated July 3, 2015, the CA affirmed the NLRC nding that
petitioner was not constructively dismissed. It wrote that the evidence on record
showed that petitioner was required to report back to work and that on October 21,
2010, he was offered a new assignment, which he refused. The CA concluded that there
was no dismissal to speak of as it was petitioner who manifested his lack of interest in
going back to work.
Hence, this petition raising the following: DHIcET

ISSUES
I
WHETHER THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING
THE RULING OF THE NLRC THAT THE PETITIONER WAS NOT
ILLEGALLY DISMISSED FROM EMPLOYMENT; AND
II
WHETHER THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING
THE RULING OF THE NLRC THAT THE PETITIONER IS NOT ENTITLED
TO HIS MONETARY CLAIMS DUE TO ILLEGAL DISMISSAL. 1 3
Petitioner argues that he did not receive the letters requiring him to report back
to work; that a perusal of the letters revealed that the same did not indicate a speci c
assignment; that respondent had no intention to reinstate him considering that he was
placed on a oating status for a long period of time; and that he was entitled to moral
damages, exemplary damages and attorney's fees.

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 In its Comment, 1 4 dated March 21, 2016, respondent averred that petitioner's
claim of illegal dismissal could not overcome the evidence it presented to show that no
dismissal took place; and that moral and exemplary damages could only be awarded
only when there is a nding of illegal dismissal and such dismissal is borne out with
malice and bad faith on the part of the employer.
In his Reply, 1 5 dated January 31, 2017, petitioner contended that the lack of
service assignment for a continuous period of six (6) months is an authorized cause for
the termination of the employee, who is then entitled to separation pay; and that
respondent's offer of reinstatement was meant to negate an otherwise consummated
act of illegal dismissal.
The Court's Ruling
The petition is meritorious.
Only questions of law
may be raised in a Rule
45 petition; exceptions

Generally, questions of fact are beyond the ambit of a petition for review under
Rule 45 of the Rules of Court as it is limited to reviewing only questions of law. The rule,
however, admits of exceptions wherein the Court expands the coverage of a petition for
review to include a resolution of questions of fact. One of the exceptions is when the
ndings of fact are con icting. 1 6 The present petition falls under this exception as the
ndings of fact by the NLRC, as a rmed by the CA, differed from those of the LA. The
LA found that petitioner was constructively dismissed whereas, the NLRC and the CA
opined that petitioner was never dismissed.
Security guard on
floating status vis--vis
constructive dismissal

Respondent refutes petitioner's constructive dismissal by arguing that the latter

was not placed on a oating status for more than six (6) months because he was
suspended on October 4, 2010 for sleeping on the job. Further, it asserts that it sent
letters to petitioner requiring him to report back to work and that it offered
reinstatement during the proceedings before the LA, which petitioner turned down.
These arguments, notwithstanding, there is basis to hold that petitioner was
constructively dismissed.
In Reyes v. RP Guardians Security Agency , 1 7 the Court held that temporary off-
detail of a security guard is generally allowed, but is tantamount to constructive
dismissal if the floating status extends beyond six (6) months, to wit:
Temporary displacement or temporary off-detail of security guard is, generally,
allowed in a situation where a security agency's client decided not to renew their
service contract with the agency and no post is available for the relieved
security guard. Such situation does not normally result in a constructive
dismissal. Nonetheless, when the floating status lasts for more than six
(6) months, the employee may be considered to have been
constructively dismissed . No less than the Constitution guarantees the right
of workers to security of tenure, thus, employees can only be dismissed for just
or authorized causes and after they have been afforded the due process of law.
1 8 [Emphasis supplied]

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 Relative thereto, constructive dismissal may exist if an act of clear discrimination,
insensibility, or disdain by an employer becomes so unbearable on the part of the
employee that it can foreclose any choice by him except to forego his continued
employment 1 9 or when there is cessation of work because continued employment is
rendered impossible, or unlikely, as an offer involving a demotion in rank and a
diminution in pay. 2 0
Security guard on
floating status must be
assigned to a specific
posting

In the case at bench, petitioner was last deployed on October 4, 2010. Thus, it
was incumbent upon respondent to show that he was redeployed within six (6) months
from the said date. Otherwise, petitioner would be deemed to have been constructively
dismissed.
A perusal of the records, however, reveals that aside from respondent's bare
assertions that petitioner was suspended, which the latter had denied, there was no
evidence of the imposition of said penalty. Respondent could have easily produced
documents to support its contention that petitioner had been suspended, considering
that employers are required to observe due process in the discipline of employees.
Respondent could not rely on its letter requiring petitioner to report back to work
to refute a nding of constructive dismissal. The letters, dated November 5, 2010 and
February 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 o ce 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) , 2 1 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 speci c or particular client. A general
return-to-work order does not suffice.
In Exocet Security and Allied Services Corporation v. Serrano (Exocet Security), 2 2
the Court absolved the employer even if the security guard was on a oating status for
more than six (6) months because the latter refused the reassignment to another client,
to wit:
In the controversy now before the Court, there is no question that the
security guard, Serrano, was placed on oating status after his relief from his
post as a VIP security by his security agency's client. Yet, there is no showing
that his security agency, petitioner Exocet, acted in bad faith when it placed
Serrano on such oating status. What is more, the present case is not a
situation where Exocet did not recall Serrano to work within the six-
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 month period as required by law and jurisprudence. Exocet did, in fact,
make an offer to Serrano to go back to work . x x x
Clearly, Serrano's lack of assignment for more than six months cannot be
attributed to petitioner Exocet. On the contrary, records show that, as early as
September 2006, or one month after Serrano was relieved as a VIP security,
Exocet had already offered Serrano a position in the general security service
because there were no available clients requiring positions for VIP
security . Notably, even though the new assignment does not involve a
demotion in rank or diminution in salary, pay, or bene ts, Serrano declined
the position because it was not the post that suited his preference, as
he insisted on being a VIP Security . x x x
Thus, it is manifestly unfair and unacceptable to immediately declare the
mere lapse of the six-month period of oating status as a case of constructive
dismissal, without looking into the peculiar circumstances that resulted in the
security guard's failure to assume another post. This is especially true in the
present case where the security guard's own refusal to accept a non-VIP detail
was the reason that he was not given an assignment within the six-month
period. The security agency, Exocet, should not then be held liable. 2 3
[Emphases supplied]
Applying the foregoing to the present controversy, respondent should have
deployed petitioner to a specific client within six (6) months from his last assignment.
The correspondences allegedly sent to petitioner merely required him to explain why he
did not report to work. He was never assigned to a particular client. Thus, even if
petitioner actually received the letters of respondent, he was still constructively
dismissed because none of these letters indicated his reassignment to another client.
Unlike in Exocet Security n and JLFP Investigation, respondent is guilty of constructive
dismissal because it never attempted to redeploy petitioner to a de nite assignment or
security detail.
Further, petitioner's refusal to accept the offer of reinstatement could not have
the effect of validating an otherwise constructive dismissal considering that the same
was made only after petitioner had led a case for illegal dismissal. Further, at the time
the offer for reinstatement was made, petitioner's constructive dismissal had long been
consummated. 2 4 Such belated gesture does not absolve respondent from the
consequences of petitioner's dismissal.
WHEREFORE , the July 3, 2015 Decision and October 13, 2015 Resolution of the
Court of Appeals in CA-G.R. SP No. 125948 are REVERSED and SET ASIDE . The
November 29, 2011 Decision of the Labor Arbiter is REINSTATED .
SO ORDERED.
Peralta, ** Leonen and Martires, JJ., concur.
Carpio, * J., is on official leave.
Footnotes
* On Official Leave.
** Per Special Order No. 2445 dated June 16, 2017.

1. Rollo, pp. 39-44.

2. Id. at 46-47.
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 3 . Penned by Commissioner Gregorio O. Bilog III, with Commissioner Pablo C. Espiritu Jr.
concurring and Presiding Commissioner Alex A. Lopez on leave; id. at 158-164.
4. Id. at 176-177.
5. Id. 74.

6. Id.
7. Id. at 70-71.

8. Id. at 13.

9. Id. at 14.
10. Id.
11. Id. at 15.
12. Id. at 134-139.
13. Id. at 20.

14. Id. at 230-233.

15. Id. at 245-255.
16. Co v. Vargas, 676 Phil. 463, 471 (2011).
17. 708 Phil. 598 (2013).

18. Id. at 603-604.

19. Central Azucarera de Bais, Inc. v. Siason, G.R. No. 215555, July 29, 2015, 764 SCRA 494,
501.

20. MegaForce Security and Allied Services, Inc. v. Lactao, 581 Phil. 100, 107 (2008).
21. G.R. No. 206942, February 25, 2015, 752 SCRA 55.
22. 744 Phil. 403 (2014).
23. Id. at 418-419.

24. Hantex Trading Co., Inc. v. CA, 438 Phil. 737, 747 (2002).
n Note from the Publisher: Written as "Ecoxet" in the original document.

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