G.R. No.

202090, September 09, 2015

ICT MA RKETING SERVICES, INC. (NOW KNOWN AS SYKES MARKETING
SERVICES, INC.), Petitioner, v. MARIPHIL L. SALES, Respondent.
DECISION
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, 20094Resolutions 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
Reconsideration7of 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

Riding of the Labor Arbiter

On October 2, 2007, respondent filed a complaint for constructive dismissal against

petitioner and Odom before the NLRC NCR, Quezon City, docketed as NLRC-NCR
Case No. 10-11004-07.

In her Position Paper,11 Reply,12 Rejoinder,13 and Surrejoinder,14 respondent claimed

that for complaining about the supposed irregularities in the Washington Mutual
account, petitioner discriminated against her and unduly punished her. Although she
was not included in the original list of CSRs/TSRs for program transfer, she was
transferred to another account, and then placed on "floating status," which is
tantamount to suspending her indefinitely without due process, despite her satisfactory
performance. Respondent averred that petitioner's claim of multiple absences is not
true, because not once was she penalized therefor, assuming such charge is true.
Respondent also alleged that her one-day absence during the training for the Bank of
America program cannot justify her being placed on a "floating status" because the "no-
absence during training" requirement cited by petitioner - using her employment
contract15 and the "New Hire Training Bay"16 as bases - applies only to new hires on
probationary status, and not to regularized employees. In any case, the "New Hire
Training Bay" used by petitioner was for the Capital One program. She also pointed out
that during her indefinite suspension or "floating status," petitioner continued to hire new
CSRs, as shown by its newspaper advertisements during the period. 17Finally, she
asserted that her resignation was not voluntary, but was forced upon her by petitioner
as a result of its unlawful acts. Thus, respondent prayed for the recovery of backwages,
separation pay, P100,000.00 combined moral and exemplary damages, and attorney's
fees equivalent to 10 per cent (10%) of the total award.

In its Position Paper,18 Reply,19 Rejoinder,20 and Surrejoinder,21 petitioner prayed for the
dismissal of the complaint, arguing that respondent was transferred from the
Washington Mutual account as an exercise of management initiative or prerogative, and
due to infractions22 committed by her, as well as attendance and punctuality issues that
arose. It claimed that respondent could not be certified for the Bank of America account
for failing to complete the training. It maintained that respondent was placed on standby
status only, and not suspended or constructively dismissed. In fact, she was directed to
report to its HR department, but she did not do so. It also insisted that respondent
resigned voluntarily. It denied committing any act of discrimination or any other act
which rendered respondent's employment impossible, unreasonable or unlikely. Finally,
it claimed that prior notice of her transfer to the Bank of America account was made
through an electronic mail message sent to her; and that respondent has no cause of
action since she resigned voluntarily, and thus could not have been illegally dismissed.
On April 30, 2008, the Labor Arbiter rendered a Decision 23 finding complainant to have
been constructively dismissed and awarding separation pay, moral and exemplary
damages, and attorney's fees to respondent. The Labor Arbiter held:
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

Riding of the National Labor Relations Commission

Petitioner appealed before the NLRC arguing that the Labor Arbiter erred in ruling that
respondent was constructively dismissed. It also argued that Odom was not personally
liable as he was merely acting in good faith and within his authority as corporate officer.

Respondent likewise interposed an appeal25 arguing that the award of backwages

should be computed from the date of her dismissal until finality of the Labor Arbiter's
Decision; and that the proportionate share of her 13th month pay should be paid to her
as well.

On February 16, 2009, the NLRC issued a Resolution,26 declaring as follows:

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

Respondent filed a Motion for Reconsideration,28 but in a May 20, 2009

Resolution,29 the motion was denied.

Ruling of the Court of Appeals

In a Petition for Certiorari30 filed with the CA and docketed as CA-G.R. SP No. 109860,
respondent sought a reversal of the February 16, 2009 and May 20, 2009 Resolutions
of the NLRC.

Petitioner filed its Comment,31 to which respondent interposed a Reply.32

On January 10, 2012, the CA issued the assailed Decision containing the following
pronouncement:
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:
"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."
Further, 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.34

Petitioner filed a Motion for Reconsideration, but the same was denied in a May
28,2012 Resolution. Hence, the present Petition.

In a November 11, 2013 Resolution,35 this Court resolved to give due course to the
Petition.
Issues

Petitioner submits that -

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

Petitioner's Arguments

Praying that the assailed CA dispositions be set aside and that the NLRC's February 16,
2009 and May 20, 2009 Resolutions be reinstated instead, petitioner maintains in the
Petition and Reply37 that respondent's transfer to another account was done as a valid
exercise of management prerogative, which allows it to regulate all aspects of
employment. Her transfer was done in good faith, and without diminution in rank and
salary. It contends that respondent knew very well that any CSR/TSR may be
transferred to another program/account anytime for business reasons; in fact,
respondent herself was transferred from Capital One to Washington Mutual, and she did
not complain. Moreover, she knew as well that "schedule adherence" or
attendance/punctuality is one of the "metrics" or standards by which the performance of
a CSR is measured, and that she failed to comply in this regard. It claims that the
decision to place her on "floating status" instead of dismissing her was an
accommodation and should not be treated as an illegal or unjustified act; that being on
"floating status" is not tantamount to constructive dismissal, and the failure to place or
transfer respondent to another account was due to her derogatory record, and not
petitioner's bad faith or inaction. It insists that the placing of an employee on "floating
status" for up to six months is allowed in the event of a bona fide suspension of the
operations or undertaking of a business.38 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. Finally, petitioner posits that since there is no illegal
dismissal but rather a voluntary relinquishment of respondent's post, then there is no
basis for the pecuniary awards in her favor.

Respondent's Arguments

In her Comment39 praying for dismissal of the Petition and the corresponding affirmance
of the assailed dispositions, respondent insists that she was illegally dismissed. She
reiterates that her transfer to the Bank of America account was an undue penalty for her
complaining about supposed anomalies in the Washington Mutual account. She avers
that the documentary evidence of her supposed unauthorized absences were
manufactured to support petitioner's false allegations and mislead this Court into
believing that she was delinquent at work. She argues that assuming that these
absences were true, then they should have merited her dismissal for cause - yet the fact
is she was not dismissed nor punished for these supposed absences. She asserts that
petitioner's claim that she was transferred on the recommendation of a client is untrue
and self-serving, and is unjustified since the client has no authority to order or
recommend her transfer. She maintains that her being placed on "floating status" was
illegal, since a) there is no evidence to prove her alleged "attendance and punctuality
issues," and b) there was no bona fide suspension of petitioner's business or
undertaking for a period not exceeding six months, as prescribed under Article 286 of
the Labor Code,40 which would justify the suspension of her employment for up to
months. As enunciated in the Philippine Industrial Security Agency Corp. v.
Dapiton41 case which petitioner itself cited, Article 286 applies only when there is
a bonafide suspension of the employer's operation or undertaking for a period not
exceeding six months, due to dire exigencies of the business that compel the employer
to suspend the employment of its workers. Respondent points out that petitioner
continued with its business, and worse, it in fact continued to hire new CSRs/TSRs
during the period of respondent's suspension from work. In fine, respondent alleges that
she was constructively dismissed and forced to resign, rather than continue to subject
herself to petitioner's discrimination, insensibility, harassment, and disdain; and that for
such illegal acts, she is entitled to indemnity from petitioner.
Our Ruling

The Court denies the Petition.

Respondent's Transfer
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

While the prerogative to transfer respondent to another account belonged to petitioner,

it weilded the same unfairly. The evidence suggests that at the time respondent was
transferred from the Washington Mutual account to the Bank of America program,
petitioner was hiring additional CSRs/TSRs.43 This simply means that if it was then
hiring new CSRs/TSRs, then there should be no need to transfer respondent to the
Bank of America program; it could simply train new hires for that program. Transferring
respondent - an experienced employee who was already familiar with the Washington
Mutual account, and who even proved to be outstanding in handling the same - to
another account means additional expenses for petitioner: it would have to train
respondent for the Bank of America account, and train a new hire to take her place in
the Washington Mutual account. This does not make sense; quite the contrary, it is
impractical and entails more expense on petitioner's part. If respondent already knew
her work at the Washington Mutual account very well, then it is contrary to experience
and logic to transfer her to another account which she is not familiar with, there to start
from scratch; this could have been properly relegated to a new hire.

There can be no truth to petitioner's claim either that respondent's transfer was made
upon request of the client. If she was performing outstanding work and bringing in good
business for the client, there is no reason - indeed it is beyond experience and logic - to
conclude that the client would seek her transfer. Such a claim could only be fabricated.
Truly,
Experience which is the life of the law — as well as logic and common sense —
militates against the petitioners' cause.44

Moreover, as the appellate court correctly observed, even if respondent had attendance
and punctuality issues, her overall performance as a CSR/TSR was certainly far from
mediocre; on the contrary, she proved to be a top performer. And if it were true that
respondent suddenly became lax by way of attendance in July 2007, it is not entirely her
fault. This may be attributed to petitioner's failure to properly address her grievances
relative to the 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. She wrote petitioner about her
complaint on July 3, 2007; however, no explanation was forthcoming from petitioner,
and it was only during these proceedings - or after a case had already been filed - that
petitioner belatedly and for no other useful purpose attempted to address her concerns.
This may have caused a bit of disillusionment on the part of respondent, which led her
to miss work for a few days in July 2007. Her grievance should have been addressed by
petitioner; after all, they were serious accusations, and have a bearing on the
CSRs/TSRs' overall performance in the Washington Mutual account.

Respondent's work as a CSR - which is essentially that of a call center agent - is not
easy. For one, she was made to work the graveyard shift - that is, from late at night or
midnight until dawn or early morning. This certainly takes a toll on anyone's physical
health. Indeed, call center agents are subjected to conditions that adversely affect their
physical, mental and emotional health; exposed to extreme stress and pressure at work
by having to address the customers' needs and insure their satisfaction, while
simultaneously being conscious of the need to insure efficiency at work by improving
productivity and a high level of service; subjected to excessive control and strict
surveillance by management; exposed to verbal abuse from customers; suffer social
alienation precisely because they work the graveyard shift - while family and friends are
at rest, they are working, and when they are at rest, family and friends are up and
about; and they work at a quick-paced environment and under difficult circumstances
owing to progressive demands and ambitious quotas/targets set by management. To
top it all, they are not exactly well-paid for the work they have to do and the conditions
they have to endure. Respondent's written query about the prizes and incentives is not
exactly baseless and frivolous; the least petitioner could have done was to timely
address it, if it cared about its employee's welfare. By failing to address respondent's
concerns, petitioner exhibited an indifference and lack of concern for its employees -
qualities that are diametrically antithetical to the spirit of the labor laws, which aim to
protect the welfare of the workingman and foster harmonious relations between capital
and labor. By its actions, petitioner betrayed the manner it treats its employees.

Thus, the only conceivable reason why petitioner transferred respondent to another
account is the fact that she openly and bravely complained about the supposed
anomalies in the Washington Mutual account; it is not her "derogatory record" or her
"attendance and punctuality issues", which are insignificant and thus irrelevant to her
overall performance in the Washington Mutual account. And, as earlier stated,
respondent's "attendance and punctuality issues" were attributable to petitioner's
indifference, inaction, and lack of sensitivity in failing to timely address respondent's
complaint. It should share the blame for respondent's resultant delinquencies.

Thus, in causing respondent's transfer, petitioner clearly acted in bad faith and with
discrimination, insensibility and disdain; the transfer was effected as a form of
punishment for her raising a valid grievance related to her work. Furthermore, said
transfer was obviously unreasonable, not to mention contrary to experience, logic, and
good business sense. This being the case, the transfer amounted to constructive
dismissal.

The managerial prerogative to transfer personnel must be exercised without

grave abuse of discretion, bearing in mind the basic elements of justice and fair
play. Having the right should not be confused with the manner in which that right is
exercised. Thus, it cannot be used as a subterfuge by the employer to rid himself
of an undesirable worker. In particular, the employer must be able to show that
the transfer is not unreasonable, inconvenient or prejudicial to the employee; nor
does it involve a demotion in rank or a diminution of his salaries, privileges and
other benefits. Should the employer fail to overcome this burden of proof, the
employee's transfer shall be tantamount to constructive dismissal, which has been
defined as a quitting because continued employment is rendered impossible,
unreasonable or unlikely; as an offer involving a demotion in rank and diminution in
pay. Likewise, constructive dismissal exists when an act of clear discrimination,
insensibility or disdain by an employer has become so unbearable to the
employee leaving him with no option but to forego with his continued
employment45 (Emphasis and underscoring supplied)

The instant case can be compared to the situation in Veterans Security Agency, Inc. v.
Gonzalvo, Jr.,46where the employee concerned - a security guard who was brave
enough to complain about his employer's failure to remit its employees' Social Security
System premiums - was "tossed around" and finally placed on floating status for no
valid reason. Taking the poor employee's side, this Court declared:
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.

xxxx

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)

Respondent's Floating Status

In placing respondent on "floating status," petitioner further acted arbitrarily and unfairly,
making life unbearable for her. In so doing, it treated respondent as if she were a new
hire; it improperly disregarded her experience, status, performance, and achievements
in the company; and most importantly, respondent was illegally deprived of her salary
and other emoluments. For her single absence during training for the Bank of America
account, she was refused certification, and as a result, she was placed on floating
status and her salary was withheld. Clearly, this was an act of discrimination and
unfairness considering that she was not an inexperienced new hire, but a promising and
award-winning employee who was more than eager to succeed within the company.
This conclusion is not totally baseless, and is rooted in her outstanding performance at
the Washington Mutual account and her complaint regarding the incentives, which only
proves her zeal, positive work attitude, and drive to achieve financial success through
hard work. But instead of rewarding her, petitioner unduly punished her; instead of
inspiring her, petitioner dashed her hopes and dreams; in return for her industry,
idealism, positive outlook and fervor, petitioner left her with a legacy of, and awful
examples in, office politicking, intrigue, and internecine schemes.

In effect, respondent's transfer to the Bank of America account was not only
unreasonable, unfair, inconvenient, and prejudicial to her; it was effectively a demotion
in rank and diminution of her salaries, privileges and other benefits. She was unfairly
treated as a new hire, and eventually her salaries, privileges and other benefits were
withheld when petitioner refused to certify her and instead placed her on floating status.
Far from being an "accommodation" as petitioner repeatedly insists, respondent
became the victim of a series of illegal punitive measures inflicted upon her by the
former.

Besides, as correctly argued by respondent, there is no basis to place her on "floating

status" in the first place since petitioner continued to hire new CSRs/TSRs during the
period, as shown by its paid advertisements and placements in leading newspapers
seeking to hire new CSRs/TSRs and employees.48True enough, the placing of an
employee on "floating status" presupposes, among others, that there is less work than
there are employees;49 but if petitioner continued to hire new CSRs/TSRs, then surely
there is a surplus of work available for its existing employees: there is no need at all to
place respondent on floating status. If any, respondent - with her experience,
knowledge, familiarity with the workings of the company, and achievements -should be
the first to be given work or posted with new clients/accounts, and not new hires who
have no experience working for petitioner or who have no related experience at all.
Once more, experience, common sense, and logic go against the position of petitioner.

The CA could not be more correct in its pronouncement that placing an employee on
floating status presents dire consequences for him or her, occasioned by the
withholding of wages and benefits while he or she is not reinstated. To restate what the
appellate court cited, "[d]ue to the grim economic consequences to the employee, 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."50 However, petitioner has failed
miserably in this regard.

Resignation

While this Court agrees with the appellate court's observation that respondent's
resignation was involuntary as it became unbearable for her to continue with her
employment, expounding on the issue at length is unnecessary. Because she is
deemed constructively dismissed from the time of her illegal transfer, her subsequent
resignation became unnecessary and irrelevant. There was no longer any position to
relinquish at the time of her resignation.

Pecuniary Awards

With the foregoing pronouncements, an award of indemnity in favor of respondent

should be forthcoming. In case of constructive dismissal, the employee is entitled to full
backwages, inclusive of allowances, and other benefits or their monetary equivalent, as
well as separation pay in lieu of reinstatement. The readily determinable amounts, as
computed by the Labor Arbiter and correspondingly reviewed and corrected by the
appellate court, should be accorded finality and deemed binding on this Court.
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:
Thus, 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

WHEREFORE, the Petition is DENIED. The assailed January 10, 2012 Decision and
May 28, 2012 Resolution of the Court of Appeals in CA-G.R. SP No. 109860
are AFFIRMED, with MODIFICATIONS, in that petitioner ICT Marketing Services, Inc.,
now known as Sykes Marketing Services, Inc., is ordered to PAY respondent Mariphil L.
Sales the following:

1) Backwages and all other benefits from July 30,2007 until finality of this Decision;

2) Separation pay equivalent to one (1) month salary for every year of service;

3) Moral and exemplary damages in the amount of P50,000.00;

4) Attorney's fees equivalent to ten percent (10%) of the total monetary award; and

5) Interest of twelve per cent (12%) per annum of the total monetary awards, computed
from July 30, 2007 up to June 30, 2013, and thereafter, six per cent (6%) per
annum from July 1,2013 until their full satisfaction.

The appropriate Computation Division of the National Labor Relations Commission is

hereby ordered to COMPUTE and UPDATE the award as herein determined WITH
DISPATCH.

SO ORDERED.