THIRD DIVISION

[G.R. No. 230968. July 27, 2022.]

SAMSUDIN T. HAMID , petitioner, vs. GERVASIO SECURITY

AND INVESTIGATION AGENCY, INC./SUSAN S. GERVASIO ,
respondents.

DECISION

GAERLAN, J : p

Subject to review under Rule 45 of the Rules of Court at the instance of

Samsudin T. Hamid (petitioner) is the Decision 1 promulgated on August 28,
2015 and Resolution 2 dated March 31, 2017 of the Court of Appeals (CA) in
CA-G.R. SP No. 130704, which deemed petitioner's Petition for Certiorari 3
closed and terminated.
The Antecedents
Petitioner was hired by Gervasio Security and Investigation Agency,
Inc./Susan S. Gervasio, the president of the security agency (collectively,
respondents) as a security guard on March 8, 2003. Sometime in October
2010, petitioner was assigned at Midas Hotel in Roxas Boulevard, Pasay City,
where he was required to work seven (7) days a week from 7:00 a.m. to 7:00
p.m. 4
On May 24, 2011, after his 12-hour day shift duty, he was asked to
work for the night even though it was his rest day since his co-guard
assigned for night-shift duty was absent. Petitioner informed his immediate
superior that he was not feeling well at that time. Notwithstanding, he was
made to work and guard the Gate 2 of the hotel. 5
On May 25, 2011, when he was about to go home after his 24-hour
duty, petitioner received a Memorandum 6 asking him to explain why no
disciplinary action should be passed upon him after he was caught sleeping
while on duty. 7
On May 26, 2011, petitioner submitted his written response, 8 wherein
he admitted taking a nap during duty but insisted that he was not feeling
well. He explained that he had a cough, and could not breathe properly. He
likewise stated that he was taking Decolgen to alleviate his condition. 9
Despite petitioner's explanation and supplication for understanding, he
was suspended for 30 days without pay "effective upon receipt of this
memorandum after which you are directed to report to this office in
complete uniform after the completion of your suspension for proper
disposition." 10 CAIHTE

During his suspension, petitioner received another memorandum

informing him that he would be relieved from his post after his suspension
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 by virtue of the client's request. 11 Petitioner, thus, after his suspension,
waited to be assigned for another post. Petitioner, however, waited in vain
for he received no call or order from respondents. Accordingly, he filed a
complaint for illegal suspension, and separation pay, among others, on
January 6, 2012. 12 Petitioner amended his complaint on March 14, 2012 to
include illegal dismissal (constructive dismissal) as one of the causes of
action. 13
For their part, respondents averred that they did not dismiss petitioner
on May 25, 2011, or any date thereafter. Respondents claimed that after
petitioner's suspension, they sent four (4) notices on October 10, 2011, 14
November 8, 2011, 15 December 8, 2011 16 and January 9, 2012 17 to
petitioner requiring him to report for duty for immediate posting. All these
notices were sent to his last known address as per personnel files.
Notwithstanding, petitioner failed to report for duty despite said notices.
Instead, petitioner opted to file a complaint against them on January 6, 2012.
The Labor Arbiter Ruling
Labor Arbiter (LA) Jonalyn M. Gutierrez (Gutierrez) rendered the
September 12, 2012 Decision 18 dismissing petitioner's complaint for lack of
merit. 19 The LA ratiocinated that respondents were able to show proof that
petitioner was notified to report to work after his suspension, but the latter
failed to comply; and that petitioner failed to adequately deny that he
received such notices to report. 20 The LA, thus, disposed of the case in this
wise:
WHEREFORE, premises considered, the complaint is hereby
DISMISSED for lack of merit. However, respondent security agency is
hereby ordered to pay complainant an equivalent of 20 days pay
(P404 x 20 days = P8,080 pesos) or P8,080.00 to compensate for the
harsh penalty he sustained despite having suffered to work on his
rest day and for continuous duty.
Other claims are hereby DISMISSED for lack of merit.
SO ORDERED. 21

Undaunted, petitioner filed an appeal 22 to the National Labor Relations

Commission (NLRC).
The NLRC Ruling
On appeal, the NLRC affirmed the dismissal of the complaint. In its
Decision 23 promulgated on March 7, 2013, the NLRC ruled that petitioner
was not constructively dismissed. It explained that while petitioner claimed
that he did not receive the notices to report back to work because they were
sent to his old address, it did not alter the fact that there was prior directive
to him to report to the office after serving his suspension. The fallo of the
NLRC's decision reads:
WHEREFORE, the appeal is DISMISSED. The decision
appealed from is AFFIRMED.
SO ORDERED. 24

Petitioner then moved for reconsideration. 25 It was, however, denied

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 in a Resolution 26 dated April 29, 2013 for lack of merit. Hence, petitioner
filed a Petition for Certiorari with the CA.
The CA Ruling
In the assailed Decision 27 promulgated on August 28, 2015, the CA
dismissed the petition and deemed the same closed and terminated. The CA
ruled that with the execution of a Quitclaim and Release executed by
petitioner, the receipt of the amount of P9,500.00 as consideration thereof,
and the dismissal of the complaint in an Order dated September 12, 2013 by
the Executive LA, Fatima Jambaro-Franco (Jambaro-Franco), the petition has
been rendered moot and academic. 28 The decretal portion of the assailed
Decision reads: DETACa

WHEREFORE, finding the terms and conditions of the Quitclaim

and Release to be in order, not being contrary to law, morals, good
customs and public policy, and that the same was hereby approved
by the NLRC's Executive Labor Arbiter who dismissed the complaint
with prejudice, judgment is hereby rendered on the Quitclaim and
Release. This petition is deemed CLOSED and TERMINATED.
SO ORDERED. 29

Aggrieved, petitioner moved for reconsideration. It was, however,

denied in a Resolution 30 dated March 31, 2017.
Hence, the instant Petition for Review on Certiorari interposing the
following issues:
Issues
I.
WHETHER THE [CA] GRAVELY ERRED WHEN IT DECLARED THE CASE
DEEMED CLOSED AND TERMINATED DESPITE THE FACT THAT THE
APPROVED QUITCLAIM AND RELEASE PERTAINS TO A DIFFERENT CASE
INVOLVING THE SAME PARTIES.
II.
WHETHER THE [CA] GRAVELY ERRED IN NOT RULING THAT THE
PETITIONER WAS CONSTRUCTIVELY DISMISSED.
III.
WHETHER THE [CA] GRAVELY ERRED IN NOT RULING THAT THE
PETITIONER IS ENTITLED TO ALL HIS MONETARY CLAIMS. 31
The Court's Ruling
We find the petition meritorious.
In the instant petition, petitioner insists that the approved Quitclaim
and Release pertains to a different case involving the same parties; thus, the
CA's dismissal of the petition on this ground was misplaced. 32
Petitioner further claims that he was constructively dismissed for he
was placed in a floating status for more than six months. He explained that
he did not receive the notices to report for immediate posting allegedly sent
to his last known address which led to his failure to report for work. 33
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 Meanwhile, respondents aver that they did not dismiss petitioner; and
it was petitioner who failed to report for work despite the four notices which
required him to report for immediate posting, sent to his known address.
We rule in favor of petitioner.
Petitioner's execution of a Quitclaim and
Release after receipt of the amount of
P9,500.00 pertains to a different case.
The amended complaint for illegal dismissal (constructive dismissal),
illegal suspension and claims for moral and exemplary damages and
attorney's fees from where the instant petition is rooted is docketed as
NLRC-NCR-Case No. 01-0034-12. 34 It was initially filed on January 6, 2012
and amended on March 14, 2012. It was then dismissed by LA Gutierrez on
September 12, 2012.
Meanwhile, the second complaint, where the same parties entered into
an amicable settlement, pertains to the case filed before the Executive LA
Jambaro-Franco, with docket number NLRC-NCR-06-09002-13. It was a
complaint for money claim (surety bond) filed on June 21, 2013. 35 Needless
to state, there were two separate and distinct cases wherein the same
parties were involved. aDSIHc

It is established that petitioner executed a Quitclaim and Release upon

receipt of the amount of P9,500.00 from respondents. Such quitclaim,
however, pertains not to the first case for illegal dismissal but the second
case for reimbursement of surety bond. Otherwise stated, the parties
amicably settled in the second case (NLRC-NCR-06-09002-13), which led to
the dismissal thereof. 36 This is evident in the Minutes 37 of the hearing in
NLRC-NCR-06-09002-13 dated September 12, 2013 which shows that the
petitioner executed the Quitclaim and Release, upon receipt of the amount
of P9,500.00, representing the cash bond and coop refund.
Petitioner was constructively dismissed.
Placing security guards on floating status is a valid exercise of
management prerogative. However, any such placement on off-detail should
not exceed six (6) months. Otherwise, constructive dismissal shall be
deemed to have occurred. 38
To recall, petitioner was suspended for one month starting on May 26,
2011. Before the expiration of his one-month suspension, or on June 13,
2011, petitioner received a memorandum relieving him from his post after
his suspension, as advised by the client. 39 Thus, petitioner was deemed in a
floating status from June 26, 2011.
Respondents aver that petitioner was not constructively dismissed
since prior to the lapse of six months, they sent him notices to report for
work for immediate posting. The notices were dated October 10, 2011,
November 8, 2011, December 8, 2011, and January 9, 2012.
On the other hand, petitioner claims not having received any of the
notices for they were mailed to his old address. This prompted him to
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 institute a complaint for constructive dismissal against respondents on
January 6, 2012, or seven months, more or less, after he was relieved of his
post.
We rule in favor of petitioner.
Records show that, indeed, there exist four notices of different dates
addressed to petitioner requiring him to report for immediate posting. As to
whether petitioner received or not these notices, suffice it to say that the LA
and the NLRC have already ruled that respondents have mailed them to
petitioner's given address and that petitioner failed to adequately deny
receipt of this notices.
It bears stressing, however, that the mailing and/or serving of these
notices and the receipt thereof by petitioner do not automatically hamper a
case for constructive dismissal.
In a plethora of cases, We have emphasized that a security guard's
employer must give a new assignment to the employee within six months.
This assignment must be to a specific or particular client. "A general return-
to-work order does not suffice." 40 Otherwise stated, jurisprudence requires
not only that the employee be recalled to the agency's office, but that the
employee be deployed to a specific client before the lapse of six months. 41
In the case of Ibon v. Genghis Khan Security Services, 42 (Ibon Case), it has
been clarified that:
Respondent could not rely on its letter requiring petitioner to
report back to work to refute a finding 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 office after
inquiring about his posting status. More importantly, there was no
proof that petitioner had received the letters.
I n Tatel v. JLFP Investigation (JLFP Investigation) , 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 specific or particular client. A general return-to-
work order does not suffice. 43 (Emphasis suppled; citations
omitted) ETHIDa

Applying the foregoing to the present controversy, considering that

petitioner was placed on a floating status for more than six (6) months from
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 his last assignment, he was deemed constructively dismissed. Though
respondents sent him notices to report for immediate posting, such notices
did not state a specific client to which he would be deployed, as required by
relevant jurisprudence. This is clear from the letters of the notices, which
state: we are hereby directing you "to report to the undersigned effective on
the receipt of this memorandum for immediate posting." 44
Clearly, the notices merely require petitioner to report to the security
agency. The notices were, at best, nothing more than general return-to-work
orders, which did not state a specific client to which petitioner would be
assigned. Applying the Ibon Case, the service of these notices, assuming
they were indeed received by petitioner, did not toll the running of
petitioner's floating status.
Moreover, while respondents do not specifically and categorically claim
that petitioner abandoned his job, in fact, they claim that abandonment is
out of the picture, the tenor of their arguments points to abandonment as
the ground why petitioner lost his job.
To reiterate, respondents claim that despite serving notices to
petitioner for him to report for work, nothing was heard from him. The
immediate filing of the complaint for constructive dismissal, however, belie
abandonment.
Settled is the rule that a charge of abandonment is totally inconsistent
with the immediate filing of a complaint for illegal dismissal. The filing
thereof is proof enough of one's desire to return to work, thus negating any
suggestion of abandonment. Employees who take steps to protest their
dismissal cannot logically be said to have abandoned their work. 45
Furthermore, abandonment is a matter of intention and cannot lightly
be presumed from certain equivocal acts. To constitute abandonment, there
must be clear proof of deliberate and unjustified intent to sever the
employer-employee relationship. Clearly, the operative act is still the
employee's ultimate act of putting an end to his employment. 46
In the instant case, petitioner filed the complaint on January 6, 2012,
that is, immediately after the lapse of six months from the time he was
placed in a floating status. His insistence, therefore, that he was
constructively dismissed, albeit it was disputed, and his act of immediately
filing a case for constructive dismissal, negate abandonment.
In sum, the CA's dismissal of the Petition for Certiorari based on a
Quitclaim and Release is misplaced. As exhaustively discussed, the Quitclaim
and Release pertain to a different case, a complaint for money claims, not to
the instant case for constructive dismissal.
Furthermore, petitioner was indeed constructively dismissed. He was
not given a specific client within six months from the time he was placed in a
floating status. While notices were sent to petitioner, these notices were
merely general return-to-work orders which did not alter petitioner's floating
status. The notices did not state a specific client to which petitioner would
be assigned.
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 As a consequence of the finding of illegal dismissal, petitioner would
ordinarily be entitled to reinstatement. 47 There are instances, however, that
reinstatement is no longer feasible. In the case of Dela Fuente v. Gimenez, 48
We have ruled that reinstatement is no longer feasible:
x x x (a) when the former position of the illegally dismissed employee
no longer exists; or (b) when the employer's business has closed
down; or (c) when the employer-employee relationship has already
been strained as to render the reinstatement impossible. The Court
likewise considered reinstatement to be non-feasible because a
"considerable time" has lapsed between the dismissal and the
resolution of the case. Indeed, the Court considers "considerable
time," which includes the lapse of eight (8) years or more (from the
filing of the complaint up to the resolution of the case) to support the
grant of separation pay in lieu of reinstatement. 49 (Citations omitted)
In the instant case, the complaint for illegal dismissal was filed in 2012.
Since, 10 years had passed from the time petitioner filed his complaint
against respondents, then, We hold and so rule that his reinstatement is no
longer practicable. More so, petitioner himself specifically prayed for an
award of separation pay and has also been specific in asking that he no
longer be reinstated. Thus, instead of reinstatement, We grant petitioner
separation pay of one month for every year of service until the finality of this
Resolution, with a fraction of a year of at least six (6) months being counted
as one (1) whole year. 50
Other monetary claims are dismissed for failure of petitioner to prove
his entitlement thereto.
All told, We conclude that the LA, NLRC and the CA committed
reversible error in dismissing the complaint for illegal dismissal. Clearly,
petitioner was constructively dismissed after he was placed in a floating
status for more than six months. A reversal thereof is, thus, warranted in this
case.
Finally, in conformity with the prevailing jurisprudence, 51 interest at
the rate of six percent (6%) per annum from the finality of this Resolution
until full payment should be imposed on the total monetary award.
WHEREFORE, in view of the foregoing premises, the instant petition is
GRANTED. The August 28, 2015 Decision and Resolution dated March 31,
2017 of the Court of Appeals in CA-G.R. SP No. 130704, are REVERSED and
SET ASIDE. Accordingly, respondents Gervasio Security and Investigation
Agency, Inc./Susan S. Gervasio are ordered to pay petitioner Samsudin T.
Hamid:
1. Full backwages and other benefits computed from the date
petitioner's employment was illegally terminated until the finality
of this Decision;
2. Separation pay computed from the date petitioner commenced
employment until the finality of this Decision at the rate of one
(1) month's salary for every year of service, with a fraction of a
year of at least six (6) months being counted as one (1) whole
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 year; and
3. Attorney's fees equivalent to ten percent (10%) of the total
award.
4. Interest of six percent (6%) per annum on all the monetary
awards from the finality of this Decision until full payment.
AIDSTE

The case is REMANDED to the Labor Arbiter to make a detailed

computation of the amounts due to petitioner, which must be paid without
delay, and for the execution of this Decision.
SO ORDERED.
Caguioa, Inting, Dimaampao and Singh, JJ., concur.

Footnotes
1. Rollo, pp. 38-45; penned by Associate Justice Noel G. Tijam (now a retired
Member of this Court), with Associate Justices Francisco P. Acosta and
Eduardo B. Peralta, Jr., concurring.

2. Id. at 47-48; penned by Associate Justice Francisco P. Acosta, with Associate

Justices Eduardo B. Peralta, Jr., and Victoria Isabel A. Paredes, concurring.

3. Id. at 11-33.
4. Id. at 138.
5. Id.
6. Id. at 112.
7. Id.

8. Id. at 114.
9. Id.
10. Id. at 115-116.
11. Id. at 117.
12. Id. at 98-99.

13. Id. at 100-101.

14. Id. at 118.
15. Id. at 120.
16. Id. at 122.

17. Id. at 124.

18. Id. at 137-142.
19. Id. at 142.
20. Id. at 141.

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 21. Id. at 142.
22. Id. at 144-153.
23. Id. at 65-69; penned by Commissioner Numeriano D. Villena with Commissioner
Angelo Ang Palaña and Presiding Commissioner Herminio V. Suelo,
concurring.
24. Id. at 69.
25. Id. at 70-77.
26. Id. at 79-81.

27. Id. at 38-45.

28. Id. at 42-43.
29. Id. at 44-45.
30. Id. at 47-48.

31. Id. at 18.

32. Id. at 18-20.
33. Id. at 20-27.
34. Id. at 201-203.
35. Id. at 204-205.

36. Id. at 192.

37. Id. at 193.
38. Padilla v. Airborne Security Service, Inc., 821 Phil. 482, 488-489 (2017).
39. Rollo, p. 117.
40. Padilla v. Airborne Security Service, Inc., supra note 38 at 489.

41. Seventh Fleet Security Services, Inc. v. Loque , G.R. No. 230005, January 22,
2020.

42. 811 Phil. 250 (2017).

43. Id. at 258-259.
44. Rollo, pp. 118-124.
45. JS Unitrade Merchandise, Inc. v. Samson, Jr., G.R. No. 200405, February 26,
2020.
46. Id.
47. Article 294 (formerly Art. 279) of the Labor Code.

48. G.R. No. 214419, November 17, 2021.

49. Id.

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 50. Id.
51. Nacar v. Gallery Frames, G.R. No. 189871, August 13, 2013, 716 Phil. 267
(2013); Servflex, Inc. v. Urera , G.R. No. 246369, March 29, 2022; De Silva v.
Urban Konstruct Studio, Inc., G.R. No. 251156, November 10, 2021.

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