SECOND DIVISION
G.R. No. 202090, September 09, 2015
ICT MAJRKETING SERVICES, INC. (NOW KNOWN AS SYKES MARKETING SERVICES, INC.), Petitioner, v. MARIPHIL L. SALES, Respondent.
D E C I S I O N
DEL CASTILLO, J.:
This Petition for Review on Certiorari1 assails: 1) the January 10, 2012 Decision2 of the Court of Appeals (CA) in CA-G.R. SP No. 109860 nullifying and setting aside the February 16, 20093 and May 20, 20094 Resolutions of the National Labor Relations Commission (NLRC) in NLRC LAC CN. 07-002404-08(7)/(8) and reinstating with modification the April 30, 2008 Decision5 of the Labor Arbiter in NLRC-NCR Case No. 10-11004-07; and 2) the CA's May 28, 2012 Resolution6 denying petitioner's Motion for Reconsideration7 of the herein assailed Decision.
Factual Antecedents
Petitioner ICT Marketing Services, Inc. (ICT) - now known as Sykes Marketing Services, Inc. - is a duly registered domestic corporation engaged in the business of providing outsourced customer relations management and business process outsourcing solutions to various clients in government and in the financial services, insurance, telecommunications, health care, information technology, media, energy, and hospitality industries.
On February 22, 2006, petitioner hired respondent Mariphil L. Sales as its Customer Service Representative (CSR) or Telephone Service Representative (TSR), and assigned her to its Capital One account. On August 21, 2006, respondent became a regular employee, and her monthly base salary was increased to P16,350.00 and she was given monthly transportation and meal allowances.
On February 21, 2007, respondent was assigned to the Washington Mutual account, where she was awarded with a certificate for being the "Top Converter/Seller (Second Place)" for the month of April 2007.8
On July 3, 2007, respondent wrote to Glen Odom (Odom) - petitioner's Vice President - complaining about supposed irregularities in the handling of funds entrusted to petitioner by Washington Mutual which were intended for distribution to outstanding Washington Mutual CSRs and TSRs as prizes and incentives. However, no action appears to have been taken on her complaint.
Respondent was then transferred to the Bank of America account on July 30, 2007. Without prior notice to respondent, petitioner scheduled her for training from July 30 to August 6, 2007 on the very same day of her transfer. On the third day of training (August 1), respondent was unable to attend. When she reported for training the next day, respondent was informed that she could not be certified to handle calls for Bank of America due to her failure to complete the training. From then on, respondent was placed on "floating status" and was not given any work assignment.
In a September 28, 2007 letter9 to petitioner's Human Resource (HR) Manager, respondent tendered her resignation from work, effective upon receipt of the letter. Respondent wrote:
I was forced to resign due to the reason that my employment was made on "floating status" effective August 4, 2007 and up to present (almost two months)
I haven't receive [sic] any notice from you or the HR department to report for work despite my repeated follow-up [with] your office thru telephone and mobile phone text messages. Hence, I consider your inaction to my follow-up as an indirect termination of my work with ICT.
The reason I was placed [on] floating status is that, I was absent during the third day of my training with Bank of America, the account to which I was transferred from Washington Mutual (WaMu). However, my absence during such period was justified by the fact that I was sick and I need [sic] to undergo a medical check-up on that date.
Furthermore, I see my transfer from WaMu Account to Bank of America and the continued floating status of my work was prompted by the fact that I lodged a complaint against managers/supervisors assigned in WaMu account regarding irregularities in the handling of funds given by ICT clients which were supposed to be distributed as prizes to TSR's assigned with WaMu. After the filing of the said complaint, through your office, I was transferred to another account (Bank of America) for no apparent reason. I was not even included in the original list of those who were supposed to be transferred because my performance record with WaMu is satisfactory as proven by the fact that I was even awarded with a certificate as "top converter (seller)" for the month of April and was supposed to be included again in the top three highest converters] for the month of May, but unfortunately irregularities were committed, that is why I filed the aforementioned complaint [with] your office.
On August 1, 2007, a few days after my transfer [to] Bank of America, my coach, angelo [sic], informed me that I will be having a training on that same day with Bank of America which is really unexpected. I was not given a notice in advance about the training. My coach informed me only three hours before the said training. Later on during my training with Bank of America I was [placed on floating status] indefinitely due to a single absence even though I am a regular employee having worked in ICT for almost two years. Another instance [of] discrimination [sic] and bad faith on the part of ICT management is that, all my fellow agents who were [placed on floating status] for the same reason were all ordered to return to work except me [sic]. Moreover, ICT is continuously hiring TSR's which only shows that there are still accounts open or work available in ICT. However despite the availability of work, I was still on floating status.
Based on the aforementioned facts and circumstance[s], it is very clear that the harassment, pressure, and indefinite floating of my employment with ICT are retaliatory acts perpetrated by the company because of my complaint/ request for investigation on the irregularities being committed by certain company officials.
Thus, I can no longer bear the above-mentioned abuses and discrimination committed against me by ICT management. Therefore, I have no option but to sever my relationship with the company, as my continued floating status had already prejudiced me emotionally and financially.10
xxx Complainant was indeed constructively dismissed from her employment and she quitted [sic] because her continued employment thereat is rendered impossible, unreasonable or unlikely.
Complainant's resignation was sparked by her transfer of assignment and eventual placing her [sic] by the respondent company of [sic] a "on floating" status.
xxx [T]here was no x x x evidence xxx that complainant's transfer was due to the request of a client. Further, if complainant was indeed remised of [sic] her duties due to her punctuality and attendance problem of committing twelve (12) absences alone incurred in July 2007 [sic], why was there no disciplinary action taken against her like reprimand or warning[?]
xxxx
And its effect, complainant is entitled to her claim of separation pay, moral and exemplary damages of P50,000.00 pesos [sic] including an award of attorney's fees.
WHEREFORE, premises considered, judgment is rendered ordering the respondents to pay complainant of [sic] one month pay per year of service as separation pay in the total amount of P32,700.00, P50,000.00 moral and exemplary damages plus 10% of the award as attorney's fees, hereunder computed:
I Separation Pay 2/21/06-8/4/07 = 2yrs. P16,350.00 x 2yrs.=P32.700.00 II Damages P50,000.00 P82,700.00 10% Attorney's Fees P8.270.00 P90,970.00
SO ORDERED.24
We reverse.
Upon an examination of the pleadings on file, We find that in the past the complainant had been transferred from one program to another without any objection on her part. Insofar as the instant case is concerned, it appears that the complainant, aside from having been given a warning for wrong disposition of a call, had been absent or usually late in reporting for work, constraining the respondent ICT to transfer her to another program/account. Required of the complainant was for her to undergo Product Training for the program from July 30 to August 6,2007, and the records indicate that she attended only two (2) days of training on July 30 and 31, 2007, did not report on August 1, 2007 and again reported for training on August 2, 2007. It was then that ICT's Operations Subject Matter Expert, Ms. Suzette Lualhati, informed the complainant that she cannot be certified for the program because she tailed to complete the number of training days, and there was a need for her to report to Human Resources for further instructions. As the complainant did not report to Human Resources, and due to her derogatory record, the respondent company could not find another program where the complainant could be transferred.
From what has been narrated above, We come to the conclusion that the respondent company cannot be faulted for placing the complainant on "floating state." And there does not appear to be any ill will or bad faith that can be attributed to the respondent.
Finally, it is well to emphasize that the complainant tendered her resignation on October 1, 2007. There is no evidence that the complainant has presented that would indicate that duress or force has been exerted on her.
All told, We are of the opinion that the findings of the Labor Arbiter are in stark contrast to the evidence on record.
WHEREFORE, in view of the foregoing, the decision appealed from is hereby reversed and set aside. Addordingly [sic], a new one is entered dismissing the complaint for lack of merit.
SO ORDERED.27
This Court finds the petition meritorious.
While it is true that management has the prerogative to transfer employees, the exercise of such right should not be motivated by discrimination, made in bad faith, or effected as a form of punishment or demotion without sufficient cause. When the transfer is unreasonable, unlikely, inconvenient, impossible, or prejudicial to the employee, it already amounts to constructive dismissal. In constructive dismissal, the employer has the burden of proving that the transfer and demotion of an employee are for just and valid grounds, such as genuine business necessity. Should the employer fail to overcome this burden of proof, the employee's transfer shall be tantamount to unlawful constructive dismissal.
In the case at bench, private respondent corporation failed to discharge this burden of proof considering the circumstances surrounding the petitioner's July 2007 transfer to another account. Prior to her reassignment, petitioner's annual performance merited increase in her salary effective February 2007 and was also awarded a certificate of achievement for performing well in April 2007. Her transfer was also abrupt as there was no written transfer agreement Morming her of the same and its requirements unlike her previous transfer from Capital One to Washington Mutual account. It is therefore difficult to see the reasonableness, urgency, or genuine business necessity to transfer petitioner to a new account. While it may be true that petitioner has attendance and punctuality issues, her over-all performance as a CSR/TSR cannot be said to be below par given the annual merit increase and the certificate of achievement awarded to her. If indeed, private respondent corporation had trouble transferring the petitioner to another post because of her derogatory record, the corporation could just have dismissed her for cause.
After petitioner's unjustified transfer, she was informed by private respondent corporation that she could not be "certified" or allowed to handle calls for the new account because of her absence during training. She was later placed on a floating status and was not given another post.
The Court considers placing the petitioner on a floating status as another unjustified action of the private respondent corporation prejudicial to petitioner as employee. In this case, except for private respondent corporation's bare assertion that petitioner no longer reported to the human resources department as instructed, no proof was offered to prove that petitioner intended to sever the employer-employee relationship. Private respondent corporation also offered no credible explanation why it failed to provide a new assignment to petitioner. Its assertion that it is petitioner's derogatory record which made it difficult for the corporation to transfer her to another account despite its efforts is not sufficient to discharge the burden of proving that there are no posts or no accounts available or willing to accept her.
In Nationwide Security and Allied Services, Inc. vs. Valderama,33 the Supreme Court declared that due to the grim economic consequences to the employee of being placed on a floating status, the employer should bear the burden of proving that there are no posts available to which the employee temporarily out of work can be assigned.
These acts by the private respondent corporation, of transferring petitioner to another account without sufficient cause and proper notice and its subsequent failure to provide a new post for her for two months without credible explanation, constitute unjustified actions prejudicial to the petitioner as an employee, making it unbearable for her to continue employment.
Thus, petitioner opted to resign, albeit involuntarily. The involuntariness of her resignation is evident in her letter which states categorically:chanRoblesvirtualLawlibrary"I was forced to resign due to the reason that my employment was made on 'floating status' effective August 4, 2007 and up to the present (almost two months) I haven't receive [sic] any notice from you or the HR department to report for work despite my repeated follow-up to your office thru telephone and mobile phone text messages. Hence, I consider your inaction to my follow-up as an indirect termination of my work with ICT."ChanRoblesVirtualawlibraryFurther, petitioner immediately filed a complaint for illegal dismissal. Resignation, it has been held, is inconsistent with the filing of a complaint. Thus, private respondent corporation's mere assertion that petitioner voluntarily resigned without offering convincing evidence to prove it, is not sufficient to discharge the burden of proving such assertion. It is worthy to note that the fact of filing a resignation letter alone does not shift the burden of proof and it is still incumbent upon the employer to prove that the employee voluntarily resigned.
Therefore, we believe and so hold that petitioner was constructively dismissed from employment. Constructive dismissal exists when the resignation on title part of the employee was involuntary due to the harsh, hostile and unfavorable conditions set by the employer. The test for constructive dismissal is whether a reasonable person in the employee's position would feel compelled to give up his employment under the prevailing circumstances. With the decision of the private respondent corporation to transfer and to thereafter placed [sic] her on floating status, petitioner felt that she was being discriminated and this perception compelled her to resign. It is clear from her resignation letter that petitioner felt oppressed by the situation created by the private respondent corporation, and this forced her to surrender her position.
Under Article 279 of the Labor Code, an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.
As petitioner did not pray for reinstatement but only sought payment of money claims, the labor arbiter is correct in awarding separation pay equivalent to one month pay for every year of service. We also do not find any cogent reason to disturb the award of damages and attorney's fees since we have found bad faith on the part of the private respondent corporation to abruptly [sic] transfer and place the petitioner on floating status. Individual respondent Glen Odom is however, exonerated from any liability as there was no clear finding that he acted with malice or bad faith. Backwages and other monetary benefits must also be included in compliance with the above-mentioned provision of labor law which shall be reckoned from the time her constructive dismissal took effect until the finality of this decision.
WHEREFORE, premises considered, the Resolutions dated February 16, 2009 and May 20, 2009 respectively, issued by the public respondent National Labor Relations Commission (NLRC) in NLRC CA No. 07-002404-08 are REVERSED and SET ASIDE. The decision of the Labor Arbiter dated April 30, 2008 is REINSTATED with MODIFICATION that the petitioner Mariphil L. Sales, be awarded backwages and other monetary benefits from the date of her constructive dismissal up to the finality of this Decision.
SO ORDERED.34ChanRoblesVirtualawlibrary
A.
THE COURT OF APPEALS ERRED WHEN IT HELD THAT RESPONDENT'S TRANSFER WAS UNJUSTIFIED NOTWITHSTANDING EVIDENCE TO SHOW THAT RESPONDENT WAS NOT DEMOTED AND WAS EVEN GIVEN THE SAME RANK AND PAY.B.
THE COURT OF APPEALS ERRED WHEN IT HELD THAT RESPONDENT'S PLACEMENT UNDER FLOATING STATUS WAS TANTAMOUNT TO CONSTRUCTIVE DISMISSAL AS THIS IS CONTRARY TO NUMEROUS DECISIONS OF THE HONORABLE COURT.C.
THE COURT OF APPEALS ERRED WHEN IT REINSTATED LABOR ARBITER MACAM'S DECISION DATED 30 APRIL 2008 WHICH DECLARED THAT RESPONDENT WAS CONSTRUCTIVELY DISMISSED, NOTWITHSTANDING EVIDENCE THAT CLEARLY SHOWS THAT RESPONDENT VOLUNTARILY RESIGNED.D.
THE COURT OF APPEALS ERRED IN AWARDING RESPONDENT SEPARATION PAY, BACKWAGES, MORAL AND EXEMPLARY DAMAGES AND ATTORNEY'S FEES.36
Under the doctrine of management prerogative, every employer has the inherent right to regulate, according to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, the time, place and manner of work, work supervision, transfer of employees, lay-off of workers, and discipline, dismissal, and recall of employees. The only limitations to the exercise of this prerogative are those imposed by labor laws and the principles of equity and substantial justice.
While the law imposes many obligations upon the employer, nonetheless, it also protects the employer's right to expect from its employees not only good performance, adequate work, and diligence, but also good conduct and loyalty, hi fact, the Labor Code does not excuse employees from complying with valid company policies and reasonable regulations for their governance and guidance.
Concerning the transfer of employees, these are the following jurisprudential guidelines: (a) a transfer is a movement from one position to another of equivalent rank, level or salary without break in the service or a lateral movement from one position to another of equivalent rank or salary; (b) the employer has the inherent right to transfer or reassign an employee for legitimate business purposes; (c) a transfer becomes unlawful where it is motivated by discrimination or bad faith or is effected as a form of punishment or is a demotion without sufficient cause; (d) the employer must be able to show that the transfer is not unreasonable, inconvenient, or prejudicial to the employee.42
Experience which is the life of the law — as well as logic and common sense — militates against the petitioners' cause.44
True, it is the inherent prerogative of an employer to transfer and reassign its employees to meet the requirements of its business. Be that as it may, the prerogative of the management to transfer its employees must be exercised without grave abuse of discretion. The exercise of the prerogative should not defeat an employee's right to security of tenure. The employer's privilege to transfer its employees to different workstations cannot be used as a subterfuge to rid itself of an undesirable worker.
Here, riled by respondent's consecutive filing of complaint against it for nonpayment of SSS contributions, VSAI had been tossing respondent to different stations thereafter. From his assignment at University of Santo Tomas for almost a year, he was assigned at the OWWA main [o]ffice in Pasig where he served for more than three years. After three years at the OWWA main office, he was transferred to the OWWA Pasay City parking lot knowing that the security services will end forthwith. VSAI even concocted the reason that he had to be assigned somewhere because his spouse was already a lady guard assigned at the OWWA main office. Inasmuch as respondent was single at that time, this was obviously a mere facade to [get] rid of respondent who was no longer in VSAIs good graces.
The only logical conclusion from the foregoing discussion is that the VSAI constructively dismissed the respondent. This ruling is in rhyme with the findings of the Court of Appeals and the NLRC. Dismissal is the ultimate penalty that can be meted to an employee. Inasmuch as petitioners failed to adduce clear and convincing evidence to support the legality of respondent's dismissal, the latter is entitled to reinstatement and back wages as a necessary consequence. However, reinstatement is no longer feasible in this case because of the palpable strained relations, thus, separation pay is awarded in lieu of reinstatement.
x x x x
Indeed, the Court ought to deny this petition lest the wheels of justice for aggrieved workingmen grind to a halt. We ought to abate the culture of employers bestowing security of tenure to employees, not on the basis of the latter's performance on the job, but on their ability to toe the line set by their employer and endure in silence the flagrant incursion of their rights, zealously protected by our labor laws and by the Constitution, no less.47 (Emphasis and underscoring supplied)
Settled is the rule that that an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges, and to his full backwages, inclusive of allowances and to his other benefits or their monetary equivalent computed from the time his compensation was withheld up to the time of actual reinstatement. If reinstatement is not possible, however, the award of separation pay is proper.
Backwages and reinstatement are separate and distinct reliefs given to an illegally dismissed employee in order to alleviate the economic damage brought about by the employee's dismissal. "Reinstatement is a restoration to a state from which one has been removed or separated" while "the payment of backwages is a form of relief that restores the income that was lost by reason of the unlawful dismissal." Therefore, the award of one does not bar the other.
In the case of Aliling v. Feliciano, citing Golden Ace Builders v. Talde, the Court explained:chanRoblesvirtualLawlibraryThus, an illegally dismissed employee is entitled to two reliefs: backwages and reinstatement. The two reliefs provided are separate and distinct. In instances where reinstatement is no longer feasible because of strained relations between the employee and the employer, separation pay is granted. In effect, an illegally dismissed employee is entitled to either reinstatement, if viable, or separation pay if reinstatement is no longer viable, and backwages.
The normal consequences of respondents' illegal dismissal, then, are reinstatement without loss of seniority rights, and payment of backwages computed from the time compensation was withheld up to the date of actual reinstatement. Where reinstatement is no longer viable as an option, separation pay equivalent to one (1) month salary for every year of service should be awarded as an alternative. The payment of separation pay is in addition to payment of backwages.51
Endnotes:
* Per Special Order No. 2166 dated September 9, 2015.
1Rollo, pp. 15-63.
2 Id. at 66-72; penned by Associate Justice Florito S. Macalino and concurred in by Associate Justices Josefina Guevara-Salonga and Mariflor P. Punzalan-Castillo.
3 Id. at 377-381.
4 Id. at 408-409.
5 Id. at 304-314.
6 Id. at 74-77; penned by Associate Justice Florito S. Macalino and concurred in by Associate Justices Mariflor P. Punzalan-Castillo and Ramon M. Bato, Jr.
7 Id. at 78-103.
8 Id. at 173.
9 Id. at 147-148.
10 Id.
11 Id. at 149-162.
12 Id. at 203-223.
13 Id. at 251-269.
14 Id. at 286-302.
15 Id. at 127-132.
16 Id. at 133-137.
17 Id. at 232-236.
18 Id. at 104-126.
19 Id. at 183-196.
20 Id. at 237-248.
21 Id. at 270-278.
a) June 23, 2006 - respondent was issued a Formal Written Warning for giving misleading information to a customer on June 22, 2006.
b) July 12, 2006 - she was again warned for selling to the wrong person on June 27, 2006.
c) Another written warning on March 20, 2007 for wrong disposition of a call.
23 Id. at 304-314; penned by Labor Arbiter Antonio R. Macam.
24 Id. at 312-314.
25 Id. at 348-355.
26 Id. at 377-381; penned by Commissioner Gregorio O. Bilog III and concurred in by Commissioner Pablo C. Espiritu, Jr.
27 Id. at 380-381
28 Id at 382-404.
29Id. at 408-409; penned by Commissioner Gregorio O. Bilog III and concurred in by Commissioner Pablo C. Espiritu, Jr.
30 Id. at 411-447.
31 Id. at 451-491.
32 Id. at 492-528.
33 659 Phil 362 (2011).
34Rollo, pp. 68-71.
35 Id. at 704-705.
36 Id. at 33.
37 Id. at 753-770.
38Citing Nippon Housing Phil, Inc. v. Leynes, 670 Phil. 495 (2011); Malig-on v. Equitable General Services, Inc., 636 Phil. 330 (2010); and Nationwide Security and Allied Services, Inc. v. Valderama, supra note 33.
39Rollo, pp. 720-744.
40 Art. 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.
41 377 Phil. 951 (1999).
42 Rural Bank of Cantilan, Inc. v. Julve, 545 Phil. 619, 624-625 (2007).
43Rollo, pp. 232-236.
44Spouses Rongavilla v. Court of Appeals, 355 Phil. 721, 740 (1998).
45 Peckson v. Robinsons Supermarket Corporation, G.R. No. 198534, July 3, 2013, 700 SCRA 668, 681, citing Blue Dairy Corporation v. National Labor Relations Commission, 373 Phil. 179, 186 (1999).
46 514 Phil. 488 (2005).
47 Id. at 500-505.
48Rollo, pp. 232-236.
49See Salvaloza v. National Labor Relations Commission, 650 Phil. 543, 557 (2010), stating that -Temporary "off-detail" or "floating status" is 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. (Emphasis supplied)Thus:chanRoblesvirtualLawlibrary
In Nippon Housing Phil, Inc. v. Leynes, supra note 38 at 506, this Court declared that the concept of "floating status" under the Labor Code applies not only to security guards but to "other industries" as well.xxx Traditionally invoked by security agencies when guards are temporarily sidelined from duty while waiting to be transferred or assigned to a new post or client, Article 286 of the Labor Code has been applied to other industries when, as a consequence of the bona fide suspension of the operation of a business or undertaking, an employer is constrained to put employees on floating status for a period not exceeding six months, xxx50Nationwide Security and Allied Services, Inc. v. Valderama, supra note 33 at 370, citing Pido v. National Labor Relations Commission, 545 Phil. 507, 516 (2007).
51Reyes v. RP Guardians Security Agency, Inc., G.R. No. 193756, April 10, 2013, 695 SCRA 620, 625-627.ChanRoblesVirtualawlibrary