Transfer amounting to dismissal

As the exigency of the business may require, an employer may transfer an employee provided said transfer does not result in demotion in rank or diminution in salary, benefits and other privileges of the employee; or is not used as a subterfuge by the employer to rid himself of an undesirable worker. In security services, the transfer connotes a changing of guards or exchange of their posts, or the reassignment to other posts. This case of Rivas illustrates when the transfer is considered a constructive dismissal.

Rivas started working as security guard on March 29, 1984 in a security agency (CSA) owned by Jun. His first assignment was in Bataan where he stayed in the living quarters of CSA. Subsequently, he was transferred to the SSS Buendia Branch in Makati. On June 24, 1994 CSA’s contract with the SSS expired, so Rivas reported to CSA’s office for a new assignment. The personnel department however informed him that there was no post available although on October 3, 1994 he was offered a post in Bataan which he rejected because he was residing in Manila. When he came back on December 15, 1994, he got no assignment although on March 27, 1995, a post in Manila was offered to him but with the condition that he sign a termination contract first; he refused such offer. He thus sued Jun as owner of CSA for constructive illegal dismissal before the NLRC.

Jun denied that Rivas reported to CSA on December 15, 1994, for if he did he would have been given an assignment since there were several vacancies then in Pasay City. He also denied that Rivas was offered a post on March 27, 1995 with a condition that he must sign a termination contract. He said that Rivas was not given the run around and it was Rivas who refused to accept the position. Thus there can be no constructive dismissal according to Jun. Was he correct?

The Supreme Court said that the resolution of whether Rivas was constructively dismissed depends on whether or not the assignment offered him in Bataan was unreasonable and prejudicial to his interest. While Jun has the prerogative to transfer his guards pursuant to business exigencies, he has the burden, however, to show that the exercise of such prerogative was not done with grave abuse of discretion or contrary to justice and fair play.

He failed to discharge this burden. Instead of adequately showing the necessity of such transfer to Bataan, Jun cast doubt on the urgency of such decision when he claimed that there were posts available in Manila where Rivas could be posted if only Rivas would agree. Also, if such assignment in Manila was actually made, there would have been no need for Rivas to institute the complaint before the NLRC. A transfer that is unnecessary, inconvenient and prejudicial to employees cannot be countenanced.

Rivas was indeed constructively removed and illegally dismissed. He is entitled to reinstatement and back wages. Back wages are paid as part of the penalty Jun has to pay for illegally dismissing Rivas. It is computed from the time of Rivas’ dismissal on June 25, 1994, the day after the expiration of his last assignment, up to the time of his reinstatement, less whatever amount he might have earned in the interim. Rivas should be reinstated instead of giving him separation pay absent any showing that reinstatement is no longer feasible (Urbanes, Jr. vs. Court of Appeals and Rilles, G.R. 138379, November 24, 2004).

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