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Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE:
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. (Article 301, Labor Code)
“Floating status” or temporary “off-detail” of an employee may take place when employees are forced to go on leave in case of temporary retrenchment of business or no posts are available for employees.
While there is no specific provision in the Labor Code governing the “floating status” or temporary “off-detail” of employees, by analogy, Article 301 of the Labor Code may be considered in situations such as these as a form of temporary retrenchment or lay-off.
Article 301 of the Labor Code provides that:
“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.”
Conformably with the above provision, the placement of an employee on “floating status” must not exceed six (6) months. Otherwise, the employee may be considered constructively dismissed. Furthermore, the burden of proving that there are no posts available to which the security guard can be assigned rests on the employer. However, the mere lapse of six months in “floating status” should not automatically result to constructive dismissal. The peculiar circumstances of the employee’s failure to assume another post must still be inquired upon. (Seventh Fleet Security Services, Inc. v. Rodolfo Loque,
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. (ICT Marketing Services, Inc. v. Mariphil L. Sales, G.R. No. 202090, September 09, 2015)
Jurisprudence says:
“The law set six (6) months as the period where the operation of a business or undertaking may be suspended, thereby also suspending the employment of the employees concerned. The resulting temporary lay-off, wherein the employees likewise cease to work, should also not last longer than six (6) months. After the period of six (6) months, the employees should either then be recalled to work or permanently retrenched following the requirements of the law. Failure to comply with this requirement would be tantamount to dismissing the employees, making the employer responsible for such dismissal. Elsewise stated, an employer may validly put its employees on forced leave or floating status upon bona fide suspension of the operation of its business for a period not exceeding six (6) months. In such a case, there is no termination of the employment of the employees, but only a temporary displacement. When the suspension of the business operations, however, exceeds six (6) months, then the employment of the employees would be deemed terminated, and the employer would be held liable for the same.” (Innodata Knowledge Services, Inc. v. Inting, et al., G.R. No. 211892, December 06, 2017)
In the case of Innodata Knowledge Services, Inc. v. Inting, et al. (G.R. No. 211892, December 06, 2017), the Supreme Court ruled that if an employee placed in floating status voluntarily resigns within the period of his or her temporary off-detail, such voluntary resignation cannot be considered as constructive dismissal.
Jurisprudence says:
“In any event, respondent’s voluntary resignation prior to the expiration of the allowable six-month “floating status” period cannot constitute constructive dismissal, and her immediate filing of the labor case thereafter, is thus premature.”
Related Articles:
May an employee be placed on floating status?
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