153. Shimizu Phils Contractors vs.

Callanta
G.R. NO. 165923, September 29, 2010

Facts:
Shimizu Phils. a corporation engaged in the construction business, employed Virgilio Callanta on August 23, 1994 as Safety
Officer assigned at Yutaka-Giken Project and eventually as Project Administrator of petitioner’s Structural Steel Division (SSD)
in 1995. Virgilio Callanta was informed that his services will be terminated effective July 9, 1997 due to the lack of any vacancy
in other projects and the need to re-align the company’s personnel requirements brought about by the imperatives of maximum
financial commitments. He then filed an illegal dismissal complaint against petitioner assailing his dismissal as without any
valid cause.

Shimizu advanced that respondent’s services was terminated in accordance with a valid retrenchment program being
implemented by the company since 1996 due to financial crisis that plague the construction industry. To prove its financial
deficit, petitioner presented financial statements for the years 1995 to 1997 as well as the Securities and Exchange
Commission’s approval of petitioner’s application for a new paid-in capital amounting to P330,000,000. Shimizu alleged that
in order not to jeopardize the completion of its projects, the abolition of several departments and the concomitant termination
of some employees were implemented as each project is completed. When respondent’s Honda Project was completed,
petitioner offered respondent his separation pay which the latter refused to accept and instead filed an illegal dismissal
complaint.

Mr. Callanta claimed that Shimizu failed to comply with the requirements called for by law before implementing a retrenchment
program thereby rendering it legally infirmed. First, it did not comply with the provision of the Labor Code mandating the
service of notice of retrenchment. He pointed out that the notice sent to him never mentioned retrenchment but only project
completion as the cause of termination. Also, the notice sent to the Department of Labor and Employment (DOLE) did not
conform to the 30-day prior notice requirement. Second, petitioner failed to use fair and reasonable criteria in determining
which employees shall be retrenched or retained. In the termination report submitted to DOLE, he was the only one dismissed
out of 333 employees. Worse, junior and inexperienced employees were appointed/assigned in his stead to new projects thus
also ignoring seniority in hiring and firing employees.

Shimizu argued that when it submitted the retrenchment notice/termination report to DOLE, there was already substantial
compliance with the requirement.

Labor Arbiter rendered a decision holding that Mr. Callanta was validly retrenched. He found that sufficient evidence was
presented to establish company losses; that petitioner offered respondent his separation pay; and that petitioner duly notified
DOLE about the retrenchment. The Labor Arbiter further relied on petitioner’s factual version relating to respondent’s
employment background with regard to his position and behavioral conduct.

NLRC upheld the ruling that there was valid ground for respondent’s termination but modified the Labor Arbiter’s Decision by
holding that petitioner violated respondent’s right to procedural due process. The NLRC found that petitioner failed to comply
with the 30-day prior notice to the DOLE and that there is no proof that petitioner used fair and reasonable criteria in the
selection of employees to be retrenched. Shimizu Philippine Contractor, Inc., is ordered to pay complainant-appellant Virgilio
P. Callanta his separation pay equivalent to one (1) month pay for every year of service. For want of due notice, respondent
is further directed to pay complainant an indemnity equivalent to one (1) month salary.

CA reversed and set aside the NLRC’s ruling. The CA opined that Shimizu failed to prove that there were employees other
than respondent who were similarly dismissed due to retrenchment and that respondent’s alleged replacements held much
higher ranks and were more deserving employees. Moreover, there were no proofs to sustain that petitioner used fair and
reasonable criteria in determining which employees to retrench. According to the CA, petitioner’s failure to produce evidence
raises the presumption that such evidence will be adverse to it. Consequently, the CA invalidated the retrenchment, held
respondent to have been illegally dismissed, and ordered respondent’s reinstatement and payment of backwages.

Issue: Whether or not Shimizu has failed to obeserve fair and reasonable standards or criteria in effecting the dismissal or
Mr. Callanta?

Ruling:
There was substantial compliance for a valid retrenchment; Shimizu used fair and reasonable criteria in effecting
retrenchment.

As an authorized cause for separation from service under Article 283 of the Labor Code, retrenchment is a valid exercise of
management prerogative subject to the strict requirements set by jurisprudence:

1
(1) That the retrenchment is reasonably necessary and likely to prevent business losses which, if already incurred, are not
merely de minimis, but substantial, serious, actual and real, or if only expected, are reasonably imminent as perceived
objectively and in good faith by the employer;
(2) That the employer served written notice both to the employees and to the Department of Labor and Employment at least
one month prior to the intended date of retrenchment;
(3) That the employer pays the retrenched employees separation pay equivalent to one month pay or at least ½ month pay
for every year of service, whichever is higher;
(4) That the employer exercises its prerogative to retrench employees in good faith for the advancement of its interest and
not to defeat or circumvent the employees’ right to security of tenure; and
(5) That the employer used fair and reasonable criteria in ascertaining who would be dismissed and who would be retained
among the employees, such as status, efficiency, seniority, physical fitness, age, and financial hardship for certain workers.

Both the Labor Arbiter and the NLRC found sufficient compliance with these substantive requirements, there being enough
evidence to prove that petitioner was sustaining business losses, that separation pay was offered to respondent, and that
notices of termination of service were furnished respondent and DOLE. However, the NLRC modified the Decision of the
Labor Arbiter by granting respondent indemnity since the notice to DOLE was served short of the 30-day notice requirement
and that there is no proof of the use of fair and reasonable criteria in the selection of employees to be retrenched or retained.
The CA, then, reversed the Decision of the NLRC by ruling that the absence of fair and reasonable criteria in implementing
the retrenchment invalidates altogether the retrenchment.

In implementing its retrenchment scheme, petitioner was constrained to streamline its operations and to downsize its
complements in a progressive manner in order not to jeopardize the completion of its projects. Thus, several departments like
the Civil Works Division, Electro-mechanical Works Division and the Territorial Project Management Offices, among others,
were abolished in the early part of 1996 and thereafter the Structural Steel Division, of which respondent was an Administrator.
Respondent was among the last batch of employees who were retrenched and by the end of year 1997, all of the employees
of the Structural Steel Division were severed from employment.

Mr. Callanta argued that that he was singled out for termination as allegedly shown in petitioner’s monthly termination report
for the month of July 1997 filed with the DOLE does not persuade this Court. Standing alone, this document is not proof of
the total number of retrenched employees or that respondent was the only one retrenched. It merely serves as notice to DOLE
of the names of employees terminated/ retrenched only for the month of July. In other words, it cannot be deemed as an
evidence of the number of employees affected by the retrenchment program. Thus we cannot conclude that no other
employees were previously retrenched.

Shimizu implemented its retrenchment program in good faith because it undertook several measures in cutting down its costs,
to wit, withdrawing certain privileges of petitioner’s executives and expatriates; limiting the grant of additional monetary
benefits to managerial employees and cutting down expenses; selling of company vehicles; and infusing fresh capital into the
company. Respondent did not attempt to refute that petitioner adopted these measures before implementing its retrenchment
program.

Shimizu was able to prove that it incurred substantial business losses, that it offered to pay respondent his separation pay,
that the retrenchment scheme was arrived at in good faith, and lastly, that the criteria or standard used in selecting the
employees to be retrenched was work efficiency which passed the test of fairness and reasonableness.

The termination notice sent to DOLE did not comply with the 30-day notice requirement, thus, respondent is entitled to
indemnity for violation of due process. However, petitioner admitted that the reports were submitted 21 days, in the case of
the first notice, and 16 days, in the case of the second notice, before the intended date of respondent’s dismissal.

The purpose of the one month prior notice rule is to give DOLE an opportunity to ascertain the veracity of the cause of
termination. Non-compliance with this rule clearly violates the employee’s right to statutory due process.

Consequently, we affirm the NLRC’s award of indemnity to respondent for want of sufficient due notice. But to be consistent
with our ruling in Jaka Food Processing Corporation v. Pacot, the indemnity in the form of nominal damages should be fixed
in the amount of P50,000.00.

The purpose of the one month prior notice rule is to give DOLE an opportunity to ascertain the
veracity of the cause of termination. Non-compliance with this rule clearly violates the employee’s
right to statutory due process. (SHIMIZU PHILS. CONTRACTORS, INC. v. VIRGILIO P. CALLANTA,
G.R. No. 165923, September 29, 2010)

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156. G.R. No. 185352: August 10, 2011

COASTAL SAFEWAY MARINE SERVICES INC., Petitioner, v. ELMER T. ESGUERRA, Respondent.

FACTS:

Elmer T. Esguerra (Esguerra) was hired by Coastal Safeway Marine Services, Inc. (CSMSI) sometime in 2003 as Third Mate for the M/V Mr. Nelson, an ocean-going
vessel under the flag of the United Arab Emirates (UAE) owned by its foreign principal, Canada & Middle East General Trading (CMEGT). Subject to the provisions of
the POEA-SEC, the contract of employment executed by the parties on 9 May 2003 provided a term of one (1) year and a basic monthly salary of US$800.00 for a 48-
hour work-week, with provisions for overtime pay and vacation leave with pay.Rather than the aforesaid vessel, however, it appears that, on 13 May 2003, Esguerra,
as Second Officer, eventually boarded the vessel M/V Gondwana which was likewise manned by CSMSI on behalf of Nabeel Shipmanagement Ltd. Fze. (NSLF).

On 28 June 2003 or after forty six (46) days of shipboard employment, Esguerra requested medical attention for back and chest pains while M/V Gondwana was
docked at Port Jebel Ali, UAE. Examined on 5 July 2003 at the Jebel Ali Medical Centre, Esguerra was declared "not fit for work until complete cardiac evaluation is
done" and "advised to rest until then" by Dr. Zarga S. Tulmar. Thereafter, Esguerra insisted on going home on the ground that he had been rendered unfit for work.
Alleging that he had yet to receive his salary for June 2003 and that his employer was making him shoulder his repatriation expenses as a consequence of his failure
to finish his contract, Esguerra also sought assistance from the Jebel Ali police/coastguard regarding his predicament.Subsequent to his arrival in the Philippines on 7
July 2003, Esguerra went to the Philippine Heart Center (PHC), the Philippine Orthopedic Hospital (POH) and the Philippine General Hospital (PGH) for medical
evaluation and treatment.

On 16 July 2003, Esguerra filed against CSMSI, its president, Benedicto C. Morcilla (Morcilla), and CMEGT, the complaint for medical reimbursement, sickness
allowance, permanent disability benefits, damages and attorney fees before the arbitral level of the NLRC. Subsequent to the filing of said complaint, Dr. Vicaldo and
Dr. Saguin of the PGH issued separate medical certificates both declaring Esguerra unfit for work.

In refutation, CSMSI, Morcilla and CMEGT averred that the tests administered on Esguerra at the Jebel Ali Medical Centre revealed that he was in good health; and,
that disregarding the finding that he continued to be fit for work, Esguerra insisted on his repatriation and filed his complaint without submitting himself to a post-
employment medical examination within three (3) working days upon his return.

The Labor Arbiter, as affirmed by the NLRC, dismissed the complaint on the ground that Esguerra failed to prove his disability and to submit himself to a post-
employment medical examination by a company-designated physician, pursuant to Section 20-B of the POEA SEC.

Through a petition for certiorari with the CA, Esguerra received a favorable decision. The CA reversed the NLRC ruling and CSMSI subsequent motion for
reconsideration was denied. Hence, this petition.

ISSUE:

Whether or not the Court of Appeals misappreciated the evidence and applied the POEA Standard Employment Contract of 1996 instead of the Revised Terms and
Conditions for Seafarers on Board Ocean-Going vessels, which is part and parcel of the Contract of Employment entered into between Esguerra and the petitioner on
May 9, 2003?

HELD: The petition is impressed with merit.

Viewed in light of the fact that Esguerra contract of employment was executed on 9 May 2003, CSMSI correctly faults the CA for applying POEA Memorandum
Circular No. 055-96 instead of the 2000 POEA-SEC which took effect on 25 June 2000. Deemed written in the seafarer's contract of employment,the 2000 POEA-SEC
like its predecessor was designed primarily for the protection and benefit of Filipino seamen in the pursuit of their employment on board ocean-going vessels.ection
20-B (3) thereof has been interpreted to mean that it is the company-designated physician who is entrusted with the task of assessing the seaman's disability,whether
total or partial, due to either injury or illness, during the term of the latter's employment.

Concededly, this does not mean that the assessment of said physician is final, binding or conclusive on the claimant, the labor tribunal or the courts. Should he be so
minded, the seafarer has the prerogative to request a second opinion and to consult a physician of his choiceregarding his ailment or injury, in which case the medical
report issued by the latter shall be evaluated by the labor tribunal and the court, based on its inherent merit.For the seaman claim to prosper, however, it is
mandatory that he should be examined by a company-designated physician within three days from his repatriation.Failure to comply with this mandatory reporting
requirement without justifiable cause shall result in forfeiture of the right to claim the compensation and disability benefits provided under the POEA-SEC.

There is no dispute regarding the fact that Esguerra had altogether failed to comply with the above-discussed mandatory reporting requirement. Beyond his bare
assertion, however, that CSMSI "never gave him referrals to continue his medications as recommended by the foreign doctor" despite his call on 8 July 2003 "to
inform them that he will report the next day in order to submit his medical evaluation abroad," Esguerra did not present any evidence to prove justification for his
inability to submit himself to a post-employment medical examination by a company-designated physician. If a written notice is required of a seafarer who is
physically incapacitated for purposes of compliance with said requirement, the Court fails to see why a more tangible proof should not likewise be expected of
Esguerra who, after his arrival on 7 July 2003, appears to have been well enough to consult with Dr. Vicaldo and Dr. Saguin on 9 July 2003.

Esguerra compliance with the mandatory reporting requirement under the POEA-SEC was made even more imperative by the fact that his repatriation for medical
reasons was categorically disputed by CSMSI. Consistent with the 5 July 2003 diagnosis made by Dr. Tulmar at the Jebel Ali Medical Centre declaring him "not fit for
work until complete cardiac evaluation is done" and advising him "to rest until then," it appears that Esguerra underwent serology, hematology, biochemistry and x-
ray diagnostic tests which yielded no significant findings relative to the back and chest pains he claims to have suffered.Although the 5 July 2003 notation made on
the M/V Gondwana Chief Officer Logbook states that he was "advised to be repatriated" on the same day and "to continue his medication in the Philippines," no less
than Esguerra himself confirmed in his 6 July 2003 letter to the Jebel Ali police/coastguard that he had yet to undergo a compete cardiac evaluation and that CSMSI
foreign principal, NSLF, had refused to shoulder his repatriation expenses on the ground that he was unable to finish his contract.

Quite significantly, Esguerra also filed his complaint on 16 July 2003, before his impediment rating was definitively assessed by either Dr. Vicaldo or Dr. Saguin.
Perusal of the record further shows that, by and of themselves, the medical certifications upon which Esguerra anchored his claims for disability benefits and sickness
allowance were not supported by such diagnostic tests and/or procedures as would adequately refute the normal results of those administered to him at the Jebel Ali
Medical Centre.
Granted that strict rules of evidence are not applicable in claims for compensation and mere probability and not the ultimate degree of certainty is regarded as the
touchstone or test of proof in compensation proceedings, it cannot be gainsaid that awards of compensation cannot rest in speculations or presumptions. In the
absence of showing of adequate tests and reasonable findings to support the same, the divergent Impediment Grades assessed by Dr. Vicaldo and Dr. Saguin cannot
be expediently taken at face value. In Magsaysay Maritime Corporation vs. Velasquez,this Court significantly brushed aside the evidentiary value of a
recommendation made by Dr. Vicaldo which was likewise "based on a single medical report which outlined the alleged findings and medical history" of the claimant-
seafarer. In Montoya vs. Transmed Manila Corporation, a similar fate was dealt the same doctor's plain statement of the supposed work-relation/work-aggravation of
a seafarer's ailment which was "not supported by any reason or proof submitted together with the assessment or in the course of the arbitration."
GRANTED.

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157. G.R. No. 175209 : January 16, 2013

ROLANDO L. CERVANTES, Petitioner, v. PAL MARITIME CORPORATION and/or WESTERN SHIPPING AGENCIES, PTE., LTD.,
Respondents.

PEREZ, J.:

FACTS:

Petitioner Rolando Cervantes (Cervantes) was hired as Master on board the vessel M/V Themistocles by respondent PAL
Maritime Corporation, the manning agent of respondent Western Shipping Agencies, PTE., LTD., (Western Shipping) for
a 10-month period.

The owner of the vessel sent a telex message to Cervantes enumerating several complaints regarding his poor
performance. On the following day, Cervantes replied and imputed ill- motive on the part of the foreign inspectors who
were making false accusations against Filipino crew members. He sent another telex message stating that: “ANYHOW TO
AVOID REPETITION [ON] MORE HARSH REPORTS TO COME. BETTER ARRANGE MY RELIEVER [AND] C/O BUSTILLO
RELIEVER ALSO. UPON ARR NEXT USA LOADING PORT FOR THEIR SATISFACTION.”

In response to said message, Western Shipping sent a letter informing Cervantes that: “OWNERS HAVE DECIDED TO
RELIEVE YOU UPON PASSING PANAMA CANAL OR NEXT CONVENIENT PORT. WE TRUST THIS PRE-MATURED ENDING OF
CONTRACT IS MUTUALLY AGREED AND FOR THE BENEFITS OF ALL PARTIES CONCERNED.”

Cervantes replied: “HV NO CHOICE BUT TO ACCEPT YR DECISION. TKS ANYHOW FOR RELIEVING ME IN NEXT
CONVENIENT PORT WILL EASE THE BURDEN THAT I HV FELT ONBOARD. REST ASSURE VSL WILL BE TURNED OVER
PROPERLY TO INCOMING MASTER.”

When Cervantes was repatriated to Manila, he filed a complaint for illegal dismissal before the Labor Arbiter. The Labor
Arbiter ruled that he was illegally dismissed.

On appeal, the NLRC reversed the decision of the Labor Arbiter. The Court of Appeals affirmed the NLRC’s decision.

Hence, this present petition for review.

ISSUE: Whether or not Cervantes resigned or was terminated from his employment?

HELD: Cervantes resigned from his employment.

LABOR LAW: resignation

Resignation is the voluntary act of an employee who finds himself in a situation where he believes that personal reasons
cannot be sacrificed in favor of the exigency of the service, such that he has no other choice but to disassociate himself
from his employment. This is precisely what obtained in this case. The statements in Cervantes’ telex message is plain
and straightforward.

Cervantes also failed to substantiate his claim that he and the Filipino crew members were being subjected to racial
discrimination on board.

Petition is DENIED.

4
158. D.M. Consunji vs. Bello
G.R. No. 159371; July 19, 2013

Facts:
Bello brought a complaint for illegal dismissal and damages against DMCI and/or Rachel Consunji. He claimed that DMCI
had employed him as a mason without any interruption from February 1, 1990 until October 10, 1997 at an hourly rate of
P25.081; that he had been diagnosed to be suffering from pulmonary tuberculosis, thereby necessitating his leave of absence;
that upon his recovery, he had reported back to work, but DMCI had refused to accept him and had instead handed to him a
termination paper that the cause had not been explained to him.

DMCI’s projects had not yet been completed.

Issues:
1. WHETHER OR NOT PRIVATE RESPONDENT WAS A REGULAR EMPLOYEE; AND
2. WHETHER OR NOT PRIVATE RESPONDENT WAS DISMISSED OR VOLUNTARILY RESIGNED.

Held:
In the context of the law, Bello was a project employee of DMCI at the beginning of their employer-employee relationship.
The project employment contract they then entered into clearly gave notice to him at the time of his engagement about his
employment being for a specific project or phase of work. He was also thereby notified of the duration of the project, and the
determinable completion date of the project.

However, the history of Bello’s appointment and employment showed that he performed his tasks as a mason in DMCI’s
various constructions projects, Tthus, Bello acquired in time the status of a regular employee by virtue of his continuous
work as a mason of DMCI.

It is settled that the extension of the employment of a project employee long after the supposed project has been
completed removes the employee from the scope of a project employee and makes him a regular employee. In this
regard, the length of time of the employee’s service, while not a controlling determinant of project employment, is a strong
factor in determining whether he was hired for a specific undertaking or in fact tasked to perform functions vital, necessary
and indispensable to the usual business or trade of the employer.1

Voluntary resignation
Yet, even had the letter been actually signed by him, the voluntariness of the resignation could not be assumed from such
fact alone. His claim that he had been led to believe that the letter would serve only as the means of extending his sick leave
from work should have alerted DMCI to the task of proving the voluntariness of the resignation.
Under the circumstances, DMCI became burdened with the obligation to prove the due execution and genuineness of the
document as a letter of resignation, which it failed to prove.

5
160. G.R. No. 177816 : August 3, 2011

NIPPON HOUSING PHIL. INC., and/or TADASHI OTA, HOROSHI TAKADA, YUSUHIRO KAWATA, MR. NOBOYUSHI and JOEL REYES,Petitioners, v. MAIAH ANGELA LEYNES,
Respondent.

FACTS:

Nippon Housing Philippines, Inc. (NPHI) hired respondent Maiah Angela Leyneson 26 March 2001 for the position of Property Manager.
On 6 February 2002, Leynes had a misunderstanding with Engr. Honesto Cantuba, the Building Engineer assigned at Bay Gardens Condominium Project (the Project),
regarding the extension of the latter working hours. Aside from instructing the security guards to bar Engr. Cantuba from entry into the Project and to tell him to
report to the NHPI main office in Makati, Leynes also sent a letter dated 8 February 2002 by telefax to Joel Reyes, NHPI HR Head, apprising the latter of Cantuba
supposed insubordination and disrespectful conduct. With Engr. Cantuba submission of a reply in turn accusing Leynes of pride, conceit and poor managerial skills,
Hiroshi Takada, NHPI VP, went on to issue the 12 February 2002 memorandum, attributing the incident to "simple personal differences" and directing Leynes to allow
Engr. Cantuba to report back for work.

Disappointed with the foregoing management decision, Leynes submitted to a letter asking for an emergency leave of absence for the supposed purpose of
coordinating with her lawyer regarding her resignation letter. While NHPI offered the Property Manager position to Engr. Carlos Jose on 13 February 2002 as a
consequence Leynessignification of her intention to resign, it also appears that Leynes sent another letter to Reyes by telefax on the same day, expressing her
intention to return to work on 15 February 2002 and to call off her planned resignation upon the advice of her lawyer. On 22 February 2002, Leynes was further
served with a letter and memorandum relieving her from her position and directing her to report to NHPI main office while she was on floating status.

Aggrieved, Leynes lost no time in filing against NHPI and its above-named officers a complaint for illegal dismissal, unpaid salaries, benefits, damages and attorney
fees before the NLRC. NHPI and its officers asserted that the management exercise of the prerogative to put an employee on floating status for a period not
exceeding six months was justified in view of her threatened resignation from her position and BGCC request for her replacement.During the pendency of the case,
however, Reyes eventually served the DOLE and Leynes with a notice terminating her services effective 22 August 2002, on the ground of redundancy or lack of a
posting commensurate to her position at the Project.Leynes was offered by NHPI the sum ofP28,188.16 representing her unpaid wages, proportionate 13th month
pay, tax refund and service incentive leave pay (SILP).

The LA found that NHPI act of putting Leynes on floating status was equivalent to termination from employment without just cause and compliance with the twin
requirements of notice and hearing.

On appeal, the NLRC reversed the LA decision. Leynes elevated the case to the CA on a Rule 65 petition for certiorari and the CA reversed the NLRC decision.

ISSUE:
Whether or not the CA erred in finding that Leynes was constructively dismissed when she was placed on floating status prior to her termination from employment
on the ground of redundancy?

HELD:
Although the CA correctly found that the record is bereft of any showing that Leynes was unacceptable to BGCC, the evidence the parties adduced a quo clearly
indicates that petitioners were not in bad faith when they placed the former under floating status. Disgruntled by NHPI countermanding of her decision to bar Engr.
Cantuba from the Project, Leynes twice signified her intention to resign from her position. In her application letter for an immediate emergency leave, Leynes also
distinctly expressed her dissatisfaction over NHPI resolution of her dispute with Engr. Cantuba and announced her plan of coordinating with her lawyer regarding her
resignation letter.

In view of the sensitive nature of Leynes position and the critical stage of the Project business development, NHPI was constrained to relay the situation to BGCC
which, in turn, requested the immediate adoption of remedial measures from Takada, including the appointment of a new Property Manager for the Project. Upon
BGCC recommendation, NHPI consequently hired Engr. Jose on 13 February 2002 as Leynes replacement. Far from being the indication of bad faith the CA construed
the same to be, these factual antecedents suggest that NHPI immediate hiring of Engr. Jose as the new Property Manager for the Project was brought about by
Leynesown rash announcement of her intention to resign from her position. Although she subsequently changed her mind and sent Reyes a letter by telefax on 13
February 2002 announcing the reconsideration of her planned resignation and her intention to return to work on 15 February 2002, Leynes evidently had only herself
to blame for precipitately setting in motion the events which led to NHPI hiring of her own replacement.

The record, moreover, shows that NHPI simply placed her on floating status "until such time that another project could be secured" for her. 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.

Considering that even labor laws discourage intrusion in the employer's judgment concerning the conduct of their business, courts often decline to interfere in their
legitimate business decisions,absent showing of illegality, bad faith or arbitrariness. Indeed, the right of employees to security of tenure does not give them vested
rights to their positions to the extent of depriving management of its prerogative to change their assignments or to transfer them.The record shows that Leynes filed
the complaint for actual illegal dismissal from which the case originated on 22 February 2002 or immediately upon being placed on floating status as a consequence
of NHPI hiring of a new Property Manager for the Project. The rule is settled, however, that "off-detailing" is not equivalent to dismissal, so long as such status does
not continue beyond a reasonable time and that it is only when such a "floating status" lasts for more than six months that the employee may be considered to have
been constructively dismissed. A complaint for illegal dismissal filed prior to the lapse of said six-month and/or the actual dismissal of the employee is generally
considered as prematurely filed.

Viewed in the light of the foregoing factual antecedents, the Court finds that the CA reversibly erred in holding petitioners liable for constructively dismissing Leynes
from her employment. There is said to be constructive dismissal when an act of clear discrimination, insensitivity or disdain on the part of the employer has become
so unbearable as to leave an employee with no choice but to forego continued employment. Constructive dismissal exists where there is cessation of work because
continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank and a diminution in pay. Stated otherwise, it is a
dismissal in disguise or an act amounting to dismissal but made to appear as if it were not.

With no other client aside from BGCC for the building management side of its business, the Court finds that NHPI was acting well within its prerogatives when it
eventually terminated Leynesservices on the ground of redundancy. One of the recognized authorized causes for the termination of employment, redundancy exists
when the service capability of the workforce is in excess of what is reasonably needed to meet the demands of the business enterprise. A redundant position is one
rendered superfluous by any number of factors, such as overhiring of workers, decreased volume of business, dropping of a particular product line previously
manufactured by the company or phasing out of service activity priorly undertaken by the business.It has been held that the exercise of business judgment to
characterize an employee service as no longer necessary or sustainable is not subject to discretionary review where, as here, it is exercised there is no showing of
violation of the law or arbitrariness or malice on the part of the employer.
Having been validly terminated on the ground of redundancy, Leynes is entitled to separation pay equivalent to one-month salary for every year of service but not to
the backwages adjudicated in her favor by the Labor Arbiter.GRANTED