Although The Agency May Place A Security Guard Under A Floating Status Or Indefinite

Suspension, The Same Should Not Exceed Six Months, As It May Ripen Into Constructive
Dismissal
G.R. NO. 169812 FEBRUARY 23, 2007, FEDERITO B. PIDO, PETITIONER, VS.NATIONAL LABOR
RELATIONS COMMISSION, CHERUBIM SECURITY AND GENERAL SERVICES, INC., AND
ROSARIO K. BALAIS, RESPONDENTS

Indefinite suspension of a security guard may ripen into constructive dismissal.

Federito was hired by Cherubim, a security agency, as security guard assigned to the Ayala Museum.
He was later transferred to the Tower and Exchange Plaza as computer operator. As with other
guards assigned to the Ayala centre, Federito is under the operational control and supervision of the
Ayala Security Force, where Richard is a security officer. Richard and Federito had an altercation
when Richard confronted him (Federito) about his duty detail order as well as the security license for
his service firearms were expired. Richard then filed a complaint against him for Gross Misconduct
before the security agency, and recommended that he be relived from the Ayala Security Force, thus
when Federito reported for work he was not allowed anymore because of a Recall Order issued by
the agency. An investigation was conducted by the agency during which Federito narrated his side of
the story. After nine months, nothing came out of the investigation, so Federito filed a case for illegal
suspension and illegal dismissal before the NLRC.

Cherubim in its defense, denied dismissing Federito, claiming that while the investigation was
ongoing, it offered Federito another assignment, but the latter refused saying pahinga muna ako

The Labor Arbiter ruled in favour of Federitom holding that his suspension for more than nine months
have ripened into constructive dismissal.

On appeal to the NLRC, the latter set aside the payment of separation pay and back wages,
reasoning out that the agency is willing to reassign him to another position. It also reinstated
Federito.

The Court of Appeals also dismissed petitioners appeal, hence Federito elevated the case to the
Supreme Court.

The Supreme Court ruled that Federito was constructively dismissed, but not on the grounds relied
upon by the Labor Arbiter and the Court of Appeals, Article 286 of the Labor Code. The lower
tribunals ruled that although the agency may place a security guard under a floating status, the same
should not exceed six months, as it may ripen into constructive dismissal, as in this case.

Instead, the Supreme Court ruled:

From the January 23, 2000 Recall Order issued by respondent reading:

1. You are hereby instructed to report to Cherubim Office tomorrow, 24 January 2000 for investigation
and effective to date, your duty at Tower One Console is [t]emporarily suspended.

2. The outright suspension is due to the argumentation (sic) [that] happened between you and ASF
Alcantara last 21 January 2000, 0900 Hrs.

3. In this regard, report to Mr. Marcelino N. Tolod, the Operation[s] Manager, after your investigation
for further instruction, (Underscoring supplied),

it is gathered that respondent intended to put petitioner under preventive suspension for an indefinite
period of time pending the investigation of the complaint against him. The allowable period of
suspension in such a case is not six months but only 30 days, following Sections 8 and 9 of Rule
XXIII, Book V of the Omnibus Rules Implementing the Labor Code (Implementing Rules), viz:
SEC. 8. Preventive suspension. The employer may place the worker concerned under preventive
suspension if his continued employment poses a serious and imminent threat to the life or property of
the employer or of his co-workers.

SEC. 9. Period of suspension. No preventive suspension shall last longer than thirty (30) days. The
employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or
the employer may extend the period of suspension provided that during the period of extension, he
pays the wages and other benefits due to the worker. In such case, the worker shall not be bound to
reimburse the amount paid to him during the extension if the employer decides, after completion of
the hearing, to dismiss the worker. (Emphasis, italics, and underscoring supplied)

As above-quoted Section 9 of the said Implementing Rules expressly provides, in the event the
employer chooses to extend the period of suspension, he is required to pay the wages and other
benefits due the worker and the worker is not bound to reimburse the amount paid to him during the
extended period of suspension even if, after the completion of the hearing or investigation, the
employer decides to dismiss him.

Respondent did not inform petitioner that it was extending its investigation, nor did it pay him his
wages and other benefits after the lapse of the 30-day period of suspension. Neither did respondent
issue an order lifting petitioners suspension, or any official assignment, memorandum or detail order
for him to assume his post or another post. Respondent merely chose to dawdle with the
investigation, in absolute disregard of petitioners welfare.

At the time petitioner filed the complaint for illegal suspension and/or constructive dismissal on
October 23, 2000, petitioner had already been placed under preventive suspension for nine months.
To date, there is no showing or information that, if at all, respondent still intends to conclude its
investigation.

This Court thus rules that petitioners prolonged suspension, owing to respondents neglect to
conclude the investigation, had ripened to constructive dismissal.