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FRANKLIN DRILON
[193 SCRA 271]
Facts:
Singer Machine Collectors Union-Baguio filed a petition for direct certification as the sole and exclusive bargaining agent of all
collectors of Singer Sewing Machine. The company opposed the petition mainly because the union members are not employees but
independent contractors as evidenced by the collection agency agreement which they signed.
Med-Arbiter ruled that there exists an employee-employer relationship and granted the certification election which was affirmed by
Sec. Drilon. The company files the present petition on the determination of the relationship. The union insist that the provisions of
the Collection Agreement belie the companys position that the union members are independent contractors.
Issue:
Whether or not there exists an employer-employee relationship between the parties.
SC Ruling:
The present case calls for the application of the control test, which if not satisfied, would lead to the conclusion that no employeeemployer relationship exists. If the union members are not employees, no right to organize for the purpose of bargaining or as a
bargaining agent cannot be recognized.
The following elements are generally considered in the determination of the relationship: the selection and engagement of the
employee, payment of wages, power of dismissal and the power to control the employees conduct which is the most important
element.
The nature of the relationship between a company and its collecting agents depends on the circumstances of each particular
relationship. Not all collecting agents are employees and neither are all collecting agents independent contractors. The agreement
confirms the status of the collecting agents as independent contractor. The requirement that collection agents utilize only receipt
forms and report forms issued by the company and that reports shall be submitted at least once a week is not necessarily an
indication of control over the means by which the job collection is to be performed. Even if report requirements are to be called
control measures, any control is only with respect to the end result of the collection since the requirements regulate the things to be
done after the performance of the collection job or the rendition of service.
The plain language of the agreement reveals that the designation as collection agent does not create an employment relationship
and that the applicant is to be considered at all times as an independent contractor.
The court finds that since private respondents are not employees of the company, they are not entitled to the constitutional right to
form or join a labor organization for the purposes of collective bargaining. There is no constitutional and legal basis for their union to
be granted their petition for direct certification.
Semblante vs CA
FACTS:
EROME D. ESCASINAS and EVAN RIGOR SINGCO vs. SHANGRI-LAS MACTAN ISLAND RESORT and DR. JESSICA J.R. PEPITO
GR No. 178827
March 24, 2009
FACTS:
Registered nurses Jeromie D. Escasinas and Evan Rigor Singco (petitioners) were engaged in 1999 and 1996, respectively,
by Dr. Jessica Joyce R. Pepito (respondent doctor) to work in her clinic at respondent Shangri-las Mactan Island Resort
(Shangri-la) in Cebu of which she was a retained physician.
In late 2002, petitioners filed with the National Labor Relations Commission (NLRC) a complaint for regularization,
underpayment of wages, non-payment of holiday pay, night shift differential and 13th month pay differential against
respondents, claiming that they are regular employees of Shangri-la. Shangri-la claimed, however, that petitioners were
not its employees but of respondent doctor, that Article 157 of the Labor Code, as amended, does not make it
mandatory for a covered establishment to employ health personnel, that the services of nurses is not germane nor
indispensable to its operations, and that respondent doctor is a legitimate individual contractor who has the power to
hire, fire and supervise the work of nurses under her.
The Labor Arbiter (LA) declared petitioners to be regular employees of Shangri-la, noting that the petitioners usually
perform work which is necessary and desirable to Shangri-las business, and thus ordered Shangri-la to grant them the
wages and benefits due them as regular employees from the time their services were engaged.
Upon appeal, the NLRC declared that no employer-employee relationship existed between Shangri-la and petitioners. It
ruled that contrary to the finding of the LA, even if Art. 280 of the Labor Code states that if a worker performs work
usually necessary or desirable in the business of an employer, he cannot be automatically deemed a regular employee,
and that the Memorandum of Agreement between the respondent and the respondent doctor amply shows that
respondent doctor was in fact engaged by Shangri-la on retainer basis, under which she could hire her own nurses and
other clinic personnel.
The Court of Appeals (CA) affirmed the NLRC decision, concluding that all aspects of employment of petitioners being
under the supervision and control of respondent doctor and since Shangri-la is not principally engaged in the business of
providing medical or healthcare services, petitioners could not be regarded as regular employees of Shangri-la.
ISSUES:
1. Whether or not Article 157 of the Labor Code make it mandatory for covered establishment to employ health
personnel; and
2. Whether or not there exists an employer-employee relationship between Shangri-la and petitioners.
HELD:
The Court holds that, contrary to petitioners postulation, Art. 157 does not require the engagement of full-time nurses
as regular employees of a company employing not less than 50 workers. Thus, the Article provides:
ART. 157. Emergency medical and dental services. It shall be the duty of every employer to furnish his employees in
any locality with free medical and dental attendance and facilities consisting of:
(a) The services of a full-time registered nurse when the number of employees exceeds fifty (50) but not more than two
hundred (200) except when the employer does not maintain hazardous workplaces, in which case the services of a
graduate first-aider shall be provided for the protection of the workers, where no registered nurse is available. The
Secretary of Labor shall provide by appropriate regulations the services that shall be required where the number of
employees does not exceed fifty (50) and shall determine by appropriate order hazardous workplaces for purposes of
this Article;(b) The services of a full-time registered nurse, a part-time physician and dentist, and an emergency clinic,
when the number of employees exceeds two hundred (200) but not more than three hundred (300); and(c) The services
of a full-time physician, dentist and full-time registered nurse as well as a dental clinic, and an infirmary or emergency
hospital with one bed capacity for every one hundred (100) employees when the number of employees exceeds three
hundred (300).
In cases of hazardous workplaces, no employer shall engage the services of a physician or dentist who cannot stay in the
premises of the establishment for at least two (2) hours, in the case of those engaged on part-time basis, and not less
than eight (8) hours in the case of those employed on full-time basis. Where the undertaking is nonhazardous in nature,
the physician and dentist may be engaged on retained basis, subject to such regulations as the Secretary of Labor may
prescribe to insure immediate availability of medical and dental treatment and attendance in case of emergency.
Under the foregoing provision, Shangri-la, which employs more than 200 workers, is mandated to furnish its
employees with the services of a full-time registered nurse, a part-time physician and dentist, and an emergency clinic
which means that it should provide or make available such medical and allied services to its employees, not necessarily
to hire or employ a service provider. As held in Philippine Global Communications vs. De Vera:
x x x while it is true that the provision requires employers to engage the services of medical practitioners in certain
establishments depending on the number of their employees, nothing is there in the law which says that medical
practitioners so engaged be actually hired as employees, adding that the law, as written, only requires the employer to
retain, not employ, a part-time physician who needed to stay in the premises of the non-hazardous workplace for two
(2) hours.The term full-time in Art. 157 cannot be construed as referring to the type of employment of the person
engaged to provide the services, for Article 157 must not be read alongside Art. 280 in order to vest employer-employee
relationship on the employer and the person so engaged. So De Vera teaches:x x For, we take it that any agreement may
provide that
one party shall render services for and in behalf of another, no matter how necessary for the latters business, even
without being hired as an employee. This set-up is precisely true in the case of an independent contractorship as well as
in an agency agreement. Indeed, Article 280 of the Labor Code, quoted by the appellate court, is not the yardstick for
determining the existence of an employment relationship. As it is, the provision merely distinguishes between two (2)
kinds of employees, i.e., regular and casual. x x x
The phrase services of a full-time registered nurse should thus be taken to refer to the kind of services that the nurse
will render in the companys premises and to its employees, not the manner of his engagement.
The existence of an independent and permissible contractor relationship is generally established by considering the
following determinants: whether the contractor is carrying on an independent business; the nature and extent of the
work; the skill required; the term and duration of the relationship; the right to assign the performance of a specified
piece of work; the control and supervision of the work to another; the employers power with respect to the hiring,
firing and payment of the contractors workers; the control of the premises; the duty to supply the premises, tools,
appliances, materials and labor; and the mode, manner and terms of payment.
On the other hand, existence of an employer- employee relationship is established by the presence of the following
determinants: (1) the selection and engagement of the workers; (2) power of dismissal; (3) the payment of wages by
whatever means; and (4) the power to control the workers conduct, with the latter assuming primacy in the overall
consideration.
Against the above-listed determinants, the Court holds that respondent doctor is a legitimate independent contractor.
That Shangri-la provides the clinic premises and medical supplies for use of its employees and guests does not
necessarily prove that respondent doctor lacks substantial capital and investment. Besides, the maintenance of a clinic
and provision of medical services to its employees is required under Art. 157, which are not directly related to Shangrilas principal business operation of hotels and restaurants.
As to payment of wages, respondent doctor is the one who underwrites the following: salaries, SSS contributions and
other benefits of the staff; group life, group personal accident insurance and life/death insurance for the staff with
minimum benefit payable at 12 times the employees last drawn salary, as well as value added taxes and withholding
taxes, sourced from her P60,000.00 monthly retainer fee and 70% share of the service charges from Shangri-las guests
who avail of the clinic services. It is unlikely that respondent doctor would report petitioners as workers, pay their SSS
premium as well as their wages if they were not indeed her employees.
With respect to the supervision and control of the nurses and clinic staff, it is not disputed that a document, Clinic
Policies and Employee Manual claimed to have been prepared by respondent doctor exists, to which petitioners gave
their conformity and in which they acknowledged their co-terminus employment status. It is thus presumed that said
document, and not the employee manual being followed by Shangri-las regular workers, governs how they perform
their respective tasks and responsibilities.
In fine, as Shangri-la does not control how the work should be performed by petitioners, it is not petitioners employer.
EROME D. ESCASINAS and EVAN RIGOR SINGCO vs. SHANGRI-LAS MACTAN ISLAND RESORT and DR. JESSICA J.R. PEPITO
GR No. 178827
March 24, 2009
FACTS:
Registered nurses Jeromie D. Escasinas and Evan Rigor Singco (petitioners) were engaged in 1999 and 1996, respectively,
by Dr. Jessica Joyce R. Pepito (respondent doctor) to work in her clinic at respondent Shangri-las Mactan Island Resort
(Shangri-la) in Cebu of which she was a retained physician.
In late 2002, petitioners filed with the National Labor Relations Commission (NLRC) a complaint for regularization,
underpayment of wages, non-payment of holiday pay, night shift differential and 13th month pay differential against
respondents, claiming that they are regular employees of Shangri-la. Shangri-la claimed, however, that petitioners were
not its employees but of respondent doctor, that Article 157 of the Labor Code, as amended, does not make it
mandatory for a covered establishment to employ health personnel, that the services of nurses is not germane nor
indispensable to its operations, and that respondent doctor is a legitimate individual contractor who has the power to
hire, fire and supervise the work of nurses under her.
The Labor Arbiter (LA) declared petitioners to be regular employees of Shangri-la, noting that the petitioners usually
perform work which is necessary and desirable to Shangri-las business, and thus ordered Shangri-la to grant them the
wages and benefits due them as regular employees from the time their services were engaged.
Upon appeal, the NLRC declared that no employer-employee relationship existed between Shangri-la and petitioners. It
ruled that contrary to the finding of the LA, even if Art. 280 of the Labor Code states that if a worker performs work
usually necessary or desirable in the business of an employer, he cannot be automatically deemed a regular employee,
and that the Memorandum of Agreement between the respondent and the respondent doctor amply shows that
respondent doctor was in fact engaged by Shangri-la on retainer basis, under which she could hire her own nurses and
other clinic personnel.
The Court of Appeals (CA) affirmed the NLRC decision, concluding that all aspects of employment of petitioners being
under the supervision and control of respondent doctor and since Shangri-la is not principally engaged in the business of
providing medical or healthcare services, petitioners could not be regarded as regular employees of Shangri-la.
ISSUES:
1. Whether or not Article 157 of the Labor Code make it mandatory for covered establishment to employ health
personnel; and
2. Whether or not there exists an employer-employee relationship between Shangri-la and petitioners.
HELD:
The Court holds that, contrary to petitioners postulation, Art. 157 does not require the engagement of full-time nurses
as regular employees of a company employing not less than 50 workers. Thus, the Article provides:
ART. 157. Emergency medical and dental services. It shall be the duty of every employer to furnish his employees in
any locality with free medical and dental attendance and facilities consisting of:
(a) The services of a full-time registered nurse when the number of employees exceeds fifty (50) but not more than two
hundred (200) except when the employer does not maintain hazardous workplaces, in which case the services of a
graduate first-aider shall be provided for the protection of the workers, where no registered nurse is available. The
Secretary of Labor shall provide by appropriate regulations the services that shall be required where the number of
employees does not exceed fifty (50) and shall determine by appropriate order hazardous workplaces for purposes of
this Article;(b) The services of a full-time registered nurse, a part-time physician and dentist, and an emergency clinic,
when the number of employees exceeds two hundred (200) but not more than three hundred (300); and(c) The services
of a full-time physician, dentist and full-time registered nurse as well as a dental clinic, and an infirmary or emergency
hospital with one bed capacity for every one hundred (100) employees when the number of employees exceeds three
hundred (300).
In cases of hazardous workplaces, no employer shall engage the services of a physician or dentist who cannot stay in the
premises of the establishment for at least two (2) hours, in the case of those engaged on part-time basis, and not less
than eight (8) hours in the case of those employed on full-time basis. Where the undertaking is nonhazardous in nature,
the physician and dentist may be engaged on retained basis, subject to such regulations as the Secretary of Labor may
prescribe to insure immediate availability of medical and dental treatment and attendance in case of emergency.
Under the foregoing provision, Shangri-la, which employs more than 200 workers, is mandated to furnish its
employees with the services of a full-time registered nurse, a part-time physician and dentist, and an emergency clinic
which means that it should provide or make available such medical and allied services to its employees, not necessarily
to hire or employ a service provider. As held in Philippine Global Communications vs. De Vera:
x x x while it is true that the provision requires employers to engage the services of medical practitioners in certain
establishments depending on the number of their employees, nothing is there in the law which says that medical
practitioners so engaged be actually hired as employees, adding that the law, as written, only requires the employer to
retain, not employ, a part-time physician who needed to stay in the premises of the non-hazardous workplace for two
(2) hours.The term full-time in Art. 157 cannot be construed as referring to the type of employment of the person
engaged to provide the services, for Article 157 must not be read alongside Art. 280 in order to vest employer-employee
relationship on the employer and the person so engaged. So De Vera teaches:x x For, we take it that any agreement may
provide that
one party shall render services for and in behalf of another, no matter how necessary for the latters business, even
without being hired as an employee. This set-up is precisely true in the case of an independent contractorship as well as
in an agency agreement. Indeed, Article 280 of the Labor Code, quoted by the appellate court, is not the yardstick for
determining the existence of an employment relationship. As it is, the provision merely distinguishes between two (2)
kinds of employees, i.e., regular and casual. x x x
The phrase services of a full-time registered nurse should thus be taken to refer to the kind of services that the nurse
will render in the companys premises and to its employees, not the manner of his engagement.
The existence of an independent and permissible contractor relationship is generally established by considering the
following determinants: whether the contractor is carrying on an independent business; the nature and extent of the
work; the skill required; the term and duration of the relationship; the right to assign the performance of a specified
piece of work; the control and supervision of the work to another; the employers power with respect to the hiring,
firing and payment of the contractors workers; the control of the premises; the duty to supply the premises, tools,
appliances, materials and labor; and the mode, manner and terms of payment.
On the other hand, existence of an employer- employee relationship is established by the presence of the following
determinants: (1) the selection and engagement of the workers; (2) power of dismissal; (3) the payment of wages by
whatever means; and (4) the power to control the workers conduct, with the latter assuming primacy in the overall
consideration.
Against the above-listed determinants, the Court holds that respondent doctor is a legitimate independent contractor.
That Shangri-la provides the clinic premises and medical supplies for use of its employees and guests does not
necessarily prove that respondent doctor lacks substantial capital and investment. Besides, the maintenance of a clinic
and provision of medical services to its employees is required under Art. 157, which are not directly related to Shangrilas principal business operation of hotels and restaurants.
As to payment of wages, respondent doctor is the one who underwrites the following: salaries, SSS contributions and
other benefits of the staff; group life, group personal accident insurance and life/death insurance for the staff with
minimum benefit payable at 12 times the employees last drawn salary, as well as value added taxes and withholding
taxes, sourced from her P60,000.00 monthly retainer fee and 70% share of the service charges from Shangri-las guests
who avail of the clinic services. It is unlikely that respondent doctor would report petitioners as workers, pay their SSS
premium as well as their wages if they were not indeed her employees.
With respect to the supervision and control of the nurses and clinic staff, it is not disputed that a document, Clinic
Policies and Employee Manual claimed to have been prepared by respondent doctor exists, to which petitioners gave
their conformity and in which they acknowledged their co-terminus employment status. It is thus presumed that said
document, and not the employee manual being followed by Shangri-las regular workers, governs how they perform
their respective tasks and responsibilities.
In fine, as Shangri-la does not control how the work should be performed by petitioners, it is not petitioners employer.
Ruling: (The SC heavily quoted the CA being in agreement with its decision)
On the existence of ER-EE relationship:
It is already settled that the relationship between jeepney owners/operators and
jeepney drivers under the boundary system is that of employer-employee and not of lessorlessee.
The fact that the drivers do not receive fixed wages but only get the amount in
excess of the so-called boundary that they pay to the owner/operator is not sufficient to
negate the relationship between them as employer and employee.
On whether or not there was termination:
The employer-employee relationship of the parties has not been severed, but merely
suspended when respondent refused to allow petitioners to drive the jeepneys while there
were unpaid boundary obligations. The fact that it was within the power of petitioners to
return to work is proof that there was no termination of employment. The condition that
petitioners should first pay their arrears only for the period of November 5-9, 2001 before
they can be readmitted to work is neither impossible nor unreasonable if their total unpaid
boundary obligations and the need to sustain the financial viability of the employers
enterprisewhich would ultimately redound to the benefit of the employeesare taken into
consideration.
As it was, the suspension dragged on for years because of petitioners stubborn
refusal to pay. It would have been different if petitioners complied with the condition and
respondent still refused to readmit them to work. Then there would have been a clear act of
dismissal. But such was not the case. Instead of paying, petitioners even filed a complaint
for illegal dismissal against respondent.
On due process:
Petitioners were not denied the right to due process. It pointed out that the case
does not involve a termination of employment; hence, the strict application of the twinnotice
rule is not warranted. What is important is that petitioners were given the
opportunity to be heard. The meeting conducted by respondent on November 4, 2001
served as sufficient notice to petitioners. During the said meeting, respondent informed his
employees, including petitioners, to strictly comply with the policy regarding remittances
and warned them that they would not be allowed to take out the jeepneys if they did not
remit the full amount of the boundary. Demonstrating their obstinacy, petitioners, on the
days immediately following the implementation of the policy, incurred deficiencies in their
boundary remittances.
It is acknowledged that an employer has free rein and enjoys a wide latitude of
discretion to regulate all aspects of employment, including the prerogative to instill
discipline on his employees and to impose penalties, including dismissal, if warranted, upon
erring employees. This is a management prerogative. Indeed, the manner in which
management conducts its own affairs to achieve its purpose is within the managements
discretion. The only limitation on the exercise of management prerogative is that the
policies, rules, and regulations on work-related activities of the employees must always be
fair and reasonable, and the corresponding penalties, when prescribed, commensurate to
the offense involved and to the degree of the infraction.
On the argument that the the policy is unsound as it does not consider the times when
passengers are scarce and the drivers are not able to raise the amount of the boundary:
Petitioners concern relates to the implementation of the policy, which is another
matter. A company policy must be implemented in such manner as will accord social justice
and compassion to the employee. In case of noncompliance with the company policy, the
employer must consider the surrounding circumstances and the reasons why the employee
failed to comply. When the circumstances merit the relaxation of the application of the
policy, then its noncompliance must be excused.
In the present case, petitioners merely alleged that there were only few passengers
during the dates in question. Such excuse is not acceptable without any proof or, at least,
an explanation as to why passengers were scarce at that time. It is simply a bare allegation,
not worthy of belief. We also find the excuse unbelievable considering that petitioners
incurred the shortages on separate days, and it appears that only petitioners failed to remit
the full boundary payment on said dates.
Under a boundary scheme, the driver remits the boundary, which is a fixed
amount, to the owner/operator and gets to earn the amount in excess thereof. Thus, on a
day when there are many passengers along the route, it is the driver who actually benefits
from it. It would be unfair then if, during the times when passengers are scarce, the
owner/operator will be made to suffer by not getting the full amount of the boundary.
Unless clearly shown or explained by an event that irregularly and negatively affected the
usual number of passengers within the route, the scarcity of passengers should not excuse
the driver from paying the full amount of the boundary.
JOSE MEL BERNARTE vs. PHILIPPINE BASKETBALL ASSOC, ET. AL, G.R. No.
192084, September 14, 2011
FACTS: Complainants (Jose Mel Bernarte and Renato Guevarra) aver that they were invited
to join the PBA as referees. During the leadership of Commissioner Emilio Bernardino, they
were made to sign contracts on a year-to-year basis. During the term of Commissioner Eala,
however, changes were made on the terms of their employment.
Complainant Bernarte, for instance, was not made to sign a contract during the first
conference of the All-Filipino Cup which was from February 23, 2003 to June 2003. It was
only during the second conference when he was made to sign a one and a half month
contract for the period July 1 to August 5, 2003.
On January 15, 2004, Bernarte received a letter from the Office of the Commissioner
advising him that his contract would not be renewed citing his unsatisfactory performance
on and off the court. It was a total shock for Bernarte who was awarded Referee of the year
in 2003. He felt that the dismissal was caused by his refusal to fix a game upon order of
Ernie De Leon.
On the other hand, complainant Guevarra alleges that he was invited to join the PBA pool of
referees in February 2001. On March 1, 2001, he signed a contract as trainee. Beginning
2002, he signed a yearly contract as Regular Class C referee. On May 6, 2003, respondent
Martinez issued a memorandum to Guevarra expressing dissatisfaction over his questioning
on the assignment of referees officiating out-of-town games. Beginning February 2004, he
was no longer made to sign a contract.
Respondents aver, on the other hand, that Complainants were not illegally dismissed
because they were not employees of the PBA. Their respective contracts of retainer were
simply not renewed. PBA had the prerogative of whether or not to renew their contracts,
which they knew were fixed.4
ISSUE: whether petitioner is an employee of respondents, which in turn determines
whether petitioner was illegally dismissed.
RULING: The existence of an employer-employee relationship is ultimately a question of
fact. As a general rule, factual issues are beyond the province of this Court. However, this
rule admits of exceptions, one of which is where there are conflicting findings of fact
between the Court of Appeals, on one hand, and the NLRC and Labor Arbiter, on the other,
such as in the present case.18
To determine the existence of an employer-employee relationship, case law has
consistently applied the four-fold test, to wit: (a) the selection and engagement of the
employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employers
power to control the employee on the means and methods by which the work is
accomplished. The so-called control test is the most important indicator of the presence
or absence of an employer-employee relationship.19
In this case, PBA admits repeatedly engaging petitioners services, as shown in the retainer
contracts. PBA pays petitioner a retainer fee, exclusive of per diem or allowances, as
stipulated in the retainer contract. PBA can terminate the retainer contract for petitioners
violation of its terms and conditions.
However, respondents (PBA) argue that the all-important element of control is lacking in
this case, making petitioner an independent contractor and not an employee of
respondents.
Petitioner contends otherwise. Petitioner asserts that he is an employee of respondents
since the latter exercise control over the performance of his work. Petitioner cites the
following stipulations in the retainer contract which evidence control: (1) respondents
classify or rate a referee; (2) respondents require referees to attend all basketball games
organized or authorized by the PBA, at least one hour before the start of the first game of
each day; (3) respondents assign petitioner to officiate ballgames, or to act as alternate
referee or substitute; (4) referee agrees to observe and comply with all the requirements of
the PBA governing the conduct of the referees whether on or off the court; (5) referee
agrees (a) to keep himself in good physical, mental, and emotional condition during the life
of the contract; (b) to give always his best effort and service, and loyalty to the PBA, and
not to officiate as referee in any basketball game outside of the PBA, without written prior
consent of the Commissioner; (c) always to conduct himself on and off the court according
to the highest standards of honesty or morality; and (6) imposition of various sanctions for
violation of the terms and conditions of the contract.
The foregoing stipulations hardly demonstrate control over the means and methods by
which petitioner performs his work as a referee officiating a PBA basketball game. The
contractual stipulations do not pertain to, much less dictate, how and when petitioner will
blow the whistle and make calls. On the contrary, they merely serve as rules of conduct or
guidelines in order to maintain the integrity of the professional basketball league. As
correctly observed by the Court of Appeals, how could a skilled referee perform his job
without blowing a whistle and making calls? x x x [H]ow can the PBA control the
performance of work of a referee without controlling his acts of blowing the whistle and
making calls?20
In Sonza v. ABS-CBN Broadcasting Corporation,21 which determined the relationship
between a television and radio station and one of its talents, the Court held that not all rules
imposed by the hiring party on the hired party indicate that the latter is an employee of the
former. The Court held:
We find that these general rules are merely guidelines towards the achievement of
the mutually desired result, which are top-rating television and radio programs that
comply with standards of the industry. We have ruled that:
Further, not every form of control that a party reserves to himself over the conduct
of the other party in relation to the services being rendered may be accorded the
effect of establishing an employer-employee relationship. The facts of this case fall
squarely with the case of Insular Life Assurance Co., Ltd. v. NLRC. In said case, we
held that:
Logically, the line should be drawn between rules that merely serve as guidelines
towards the achievement of the mutually desired result without dictating the means
or methods to be employed in attaining it, and those that control or fix the
methodology and bind or restrict the party hired to the use of such means. The first,
which aim only to promote the result, create no employer-employee relationship
unlike the second, which address both the result and the means used to achieve it.22
We agree with respondents that once in the playing court, the referees exercise their own
independent judgment, based on the rules of the game, as to when and how a call or
decision is to be made. The referees decide whether an infraction was committed, and the
PBA cannot overrule them once the decision is made on the playing court.
The referees are the only, absolute, and final authority on the playing court. Respondents or
any of the PBA officers cannot and do not determine which calls to make or not to make and
cannot control the referee when he blows the whistle because such authority exclusively
belongs to the referees. The very nature of petitioners job of officiating a professional
basketball game undoubtedly calls for freedom of control by respondents.
Moreover, the following circumstances indicate that petitioner is an independent contractor:
(1) the referees are required to report for work only when PBA games are scheduled, which
is three times a week spread over an average of only 105 playing days a year, and they
officiate games at an average of two hours per game; and (2) the only deductions from the
fees received by the referees are withholding taxes.
In other words, unlike regular employees who ordinarily report for work eight hours per day
for five days a week, petitioner is required to report for work only when PBA games are
scheduled or three times a week at two hours per game. In addition, there are no
deductions for contributions to the Social Security System, Philhealth or Pag-Ibig, which are
the usual deductions from employees salaries. These undisputed circumstances buttress the
fact that petitioner is an independent contractor, and not an employee of respondents.
Furthermore, the applicable foreign case law declares that a referee is an independent
contractor, whose special skills and independent judgment are required specifically for such
position and cannot possibly be controlled by the hiring party.
In Yonan v. United States Soccer Federation, Inc.,23 the United States District Court of
Illinois held that plaintiff, a soccer referee, is an independent contractor, and not an
employee of defendant which is the statutory body that governs soccer in the United States.
As such, plaintiff was not entitled to protection by the Age Discrimination in Employment
Act. The U.S. District Court ruled:
Generally, if an employer has the right to control and direct the work of an
individual, not only as to the result to be achieved, but also as to details by which
the result is achieved, an employer/employee relationship is likely to exist. The
Court must be careful to distinguish between controlling the conduct of another
party contracting party by setting out in detail his obligations consistent with the
freedom of contract, on the one hand, and the discretionary control an employer
daily exercises over its employees conduct on the other.
Yonan asserts that the Federation closely supervised his performance at each
soccer game he officiated by giving him an assessor, discussing his performance, and
controlling what clothes he wore while on the field and traveling. Putting aside that
the Federation did not, for the most part, control what clothes he wore, the
Federation did not supervise Yonan, but rather evaluated his performance after
matches. That the Federation evaluated Yonan as a referee does not mean that he
was an employee. There is no question that parties retaining independent
contractors may judge the performance of those contractors to determine if the
contractual relationship should continue. x x x
It is undisputed that the Federation did not control the way Yonan refereed his
games. He had full discretion and authority, under the Laws of the Game, to call the
game as he saw fit. x x x In a similar vein, subjecting Yonan to qualification
standards and procedures like the Federations registration and training requirements
does not create an employer/employee relationship. x x x
A position that requires special skills and independent judgment weights in favor of
independent contractor status. x x x Unskilled work, on the other hand, suggests an
employment relationship. x x xHere, it is undisputed that soccer refereeing,
especially at the professional and international level, requires a great deal of skill
and natural ability. Yonan asserts that it was the Federations training that made
him a top referee, and that suggests he was an employee. Though substantial
training supports an employment inference, that inference is dulled significantly or
negated when the putative employers activity is the result of a statutory
requirement, not the employers choice. x x x
In McInturff v. Battle Ground Academy of Franklin,24 it was held that the umpire
was not an agent of the Tennessee Secondary School Athletic Association
(TSSAA), so the players vicarious liability claim against the association should be
dismissed. In finding that the umpire is an independent contractor, the Court of
Appeals of Tennesse ruled:
The TSSAA deals with umpires to achieve a result-uniform rules for all baseball
games played between TSSAA member schools. The TSSAA does not supervise
regular season games. It does not tell an official how to conduct the game beyond
the framework established by the rules. The TSSAA does not, in the vernacular of the
case law, control the means and method by which the umpires work.
In addition, the fact that PBA repeatedly hired petitioner does not by itself prove that
petitioner is an employee of the former. For a hired party to be considered an employee, the
hiring party must have control over the means and methods by which the hired party is to
perform his work, which is absent in this case. The continuous rehiring by PBA of petitioner
simply signifies the renewal of the contract between PBA and petitioner, and highlights the
LIRIO v. GENOVIA
G.R. No. 169757 November 23, 2011
petitioners
Cesar C. Lirio, doing business under the name and style of CELKOR AD SONICMIX
respondents
Wilmer D. Genovia
summary
Studio manager + composer. Genovia was terminated because he did not agree with the small compensation scheme
proposed by Lirio. The court held that they have an employer-employee relationship and that LA & CA is correct
compensated. On Feb 26, 2002 (after the carrier single was already aired in over the radio on Feb 22), respondent again
reminded petitioner about the contract on his compensation as composer and arranger of the album. Petitioner told
respondent that
since he was practically a nobody and had proven nothing yet in the music industry, respondent did not deserve a high
compensation, and he should be thankful that he was given a job to feed his family
(kapal ng mukha!). Petitioner informed respondent that he was entitled only to 20% of the net profit, and not of the
gross sales of the album, and that the salaries he received and would continue to receive as studio manager of Celkor
would be deducted from the said 20% net profit share.- Respondent objected and insisted that he be properly
compensated. On March 14, 2002, petitioner verbally terminated respondents services, and he was instructed not to
report for work.
Respondent asserts that he was illegally dismissed as he was terminated without any valid grounds, and no hearing was
conducted before he was terminated, in violation of his constitutional right to due process. Having worked for more
than six months, he was already a regular employee. Although he was a so called studio manager, he had no
managerial powers, but was merely an ordinary employee.
Respondents evidence consisted of the Payroll dated July 31, 2001 to March 15, 2002, which was certified correct by
petitioner,and Petty Cash Vouchers evidencing receipt of payroll payments by respondent from Celkor.- LA: Genovia is
illegally dismissed. NLRC: reversed. CA: reversed and reinstated LA decision. Defense (just in case itanong ni Maam
pero baseless to kasi wala nama ng evidence): Lirio stated in his Position Paper that respondent was not hired as studio
manager, composer, technician or as an employee in any other capacity of Celkor. Respondent could not have been
hired as a studio manager, since the recording studio has no personnel except petitioner. He decided to produce an
album for his daughter and established arecording studio, which he named Celkor Ad Sonic mix Recording Studio. He
looked for a composer/arranger who would compose the songs for the said album
found Genovia. Respondent verbally agreed with petitioner to co-produce the album based on the following terms and
conditions: (1) petitioner shall provide all the financing, equipment and recording studio; (2) Celine Mei Lirio shall sing all
the songs; (3)respondent shall act as composer and arranger of all the lyrics and the music of the five songs he already
composed and the revival songs; (4)petitioner shall have exclusive right to market the album; (5) petitioner was entitled
to 60% of the net profit, while respondent and Celine Mei Lirio were each entitled to 20% of the net profit; and (6)
respondent shall be entitled to draw advances of P7,000.00 a month, which shall be deductible from his share of the net
profits and only until such time that the album has been produced. Petitioner asserted that from the aforesaid terms
and conditions, his relationship with respondent is one of an informal partnership under Article 1767 of NCC, since they
agreed to contribute money, property or industry to a common fund with the intention of dividing the profits among
themselves. Hence, petitioner contended that no employer-employee relationship existed between him and the
respondent, and there was no illegal dismissal to speak of.
Issue/s
WON CA erred in reversing and setting aside the decision of the NLRC, and reinstating the decision of the Labor Arbiter
with modification.
NO.
ratio
In petitions for review, only errors of law are generally reviewed by this Court. This rule, however, is not ironclad.
Where the issue is shrouded by a conflict of factual perceptions by the lower court or the lower administrative body, in
this case, the NLRC, this Court is constrained to review the factual findings of the Court of Appeals.
Before a case for illegal dismissal can prosper, it must first be established that an employer-employee relationship
existed between petitioner and respondent.
The elements to determine the existence of an employment relationship are: (a) the
selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the
employers power to control the employees conduct. The most important element is the employers control of the
employees conduct, not only as to the result of the work to be done, but also as to the means and methods to
accomplish it.t is settled that no particular form of evidence is required to prove the existence of an employer-employee
relationship.
Any competent and relevant evidence to prove the relationship may be admitted. The evidence presented by Genovia
(payroll + petty cash vouchers) showed that petitioner hired respondent as an employee and he was paid monthly
wages of P7,000. Petitioner wielded the power to dismiss as respondent stated that he was verbally dismissed by
petitioner, and respondent, thereafter, filed an action for illegal dismissal against petitioner. The power of control refers
merely to the existence of the power.
It is not essential for the employer to actually supervise the performance of duties of the employee, as it is sufficient
that the former has a right to wield the power.
Nevertheless, petitioner stated in his Position Paper that it was agreed that he would help and teach respondent how to
use the studio equipment. In such case, petitioner certainly had the power to check on the progress and work of
respondent. On the other hand, petitioner failed to prove that his relationship with respondent was one of partnership.
Such claim was not supported by any written agreement. The Court notes that in the payroll dated July 31, 2001 to
March 15, 2002, there were deductions from the wages of respondent for his absence from work, which negates
petitioners claim that the wages paid were advances for respondents work in the partnership. It is a well-settled
doctrine, that if doubts exist between the evidence presented by the employer and the employee, the scales of justice
must be tilted in favor of the latter. (Nicario v NLRC)Court agrees with the CA that the evidence presented by the parties
showed that an employer-employee relationship existed between petitioner and respondent. Petitioner failed to comply
with legal requirements (valid cause for termination + due process); hence, the CA correctly affirmed the LAs finding
that respondent was illegally dismissed, and entitled to the payment of backwages, and separation pay in lieu of
reinstatement.