Floating Status

Rights and Remedies of Security Guards on Floating Status against their Security Agencies

My last assignment as security guard was last May 2015. It is already September or four (4) months since my last assignment and I have not heard from my security agency since then. I reported to the agency and they told me that there is no assignment for me at the moment.

Can I file an illegal dismissal case against the security agency for not giving me any duty for the last four months?

Situation

Can I already file an illegal dismissal case now?

NO.

Being placed on a temporary “off-detail” or “floating status” is not equivalent to dismissal. If you file a complaint now, it will be dismissed for being prematurely filed. NOTE: A security guard is on floating status when he is “waiting to be posted.”

The law recognizes that the security guards’ assignments depend on the contracts between the security agency and their clients.

What can I do to protect my right?

At this stage, you can write the Security Agency to inform them that you are already on the fourth month of your off-detail. Ask the agency to prioritize you in assignment for available post.

If I’m still not assigned after six (6) months, can I file an illegal dismissal case?

YES.

After 6 six months in a floating status, a security guard should be either recalled to work or permanently retrenched.

If he remains in a floating status for more than 6 months, he can be considered as constructively dismissed.

NOTE: The mere lapse of six-month period does not constitute constructive dismissal. The court will look into the circumstances surrounding the case.

When the lack of assignment is caused by the security guard, such as when he refused an offer to assume a post, then there is no illegal dismissal.

Is there a valid cause to retrench my employment?

YES.

Department of Labor and Employment (DOLE) Order No. 14-01 states that lack of service assignment for a continuous period of 6 months is an authorized cause to terminate an employee.

NOTE: This provision contemplates a situation where the security agency has a surplus of security guards due to lack of clients.

The procedure for retrenchment, laid down in the Labor Code and DO 14-01, must be followed.

If I decide to file a complaint, what should I do?

You may go to the nearest National Labor Relations Commission (NLRC) office to file your complaint for illegal (constructive) dismissal.

STEP 1: FILE COMPLAINT WITH NLRC

What happens when I file a case with NLRC?

Your complaint will first be referred to the Single Entry Approach (SEnA). You and the security agency shall undergo a 30-day mandatory conciliation-mediation process to effect settlement. *SEnA is an administrative approach to provide a speedy, impartial, inexpensive and accessible settlement procedure for all issues/complaints arising from employer-employee relations to prevent them from ripening into full blown disputes.

STEP 2: SENA

What happens when I file a case with NLRC?

If the matter is not settled by SEnA, the case will be elevated and raffled to an office of any Labor Arbiter. Both parties will again be asked to reconcile and settle the case without going to the merits of the case.

STEP 3: Labor Arbiter

What happens when I file a case with NLRC?

If again, no settlement was reached, the parties will now be ordered to submit their corresponding position paper stating their allegations together with the evidence to support their claim.

STEP 4: Position Paper

What happens when I file a case with NLRC?

When both parties have already submitted their position paper, they will both be required to file their REPLY to the other party’s position paper.

STEP 5: Reply

What happens when I file a case with NLRC?

Usually, after the replies are filed, the case will be submitted for resolution. The Labor Arbiter usually takes ninety (90) days to resolve the case and render his decision.

STEP 6: Submit for Resolution

To summarize the procedure:

1: File COMPLAINT 2: SENA

3: LABOR ARBITER 4: POSITION PAPER

5: REPLY 6: WAIT FOR DECISION

Evidence that may be presented:

1. Company I.D., Employment Contract or any document that shows employment - to show that the security guard is an employee of the security agency. 2. Pay Slip –to show sufficiency of salary in accordance with labor standards. 3. Pull-Out form or any document that shows the date of your last assignment –to support the allegation of the last date of your duty for the counting of the six-month period. 4. The letter to the security agency informing that you are asking for an assignment –to show that you are asking the security for an assignment prior to the expiration of the six-month period and you are not abandoning your employment with the security agency.

Sources

Article 286 of the Labor Code of the Philippines Superstar Security Agency, Inc. vs. NLRC, 184 SCRA 74 [1990] Mobile Protective & Detective Agency vs. Ompad, G. R. No. 159195, May 9, 2005 Agro Commercial Security Services Agency, Inc. vs. NLRC, G.R. Nos. 82823-24,

July 31, 1989 Reyes vs. RP Guardians Security Agency, Inc, G.R. No. 193756, April 10, 2013 Exocet Security and Allied Services Corporation vs.

Armando D. Serrano, G.R. No. 198538, September 29, 2014 http://blr.dole.gov.ph/frequently-asked-questions/55-single-entry-approach-

sena

[Uploaded on 28 October 2015]]

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