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NARVASA, C.J.:
The question before the Court here is whether or not persons rendering
caddying services for members of golf clubs and their guests in said clubs'
courses or premises are the employees of such clubs and therefore within the
compulsory coverage of the Social Security System (SSS).
That question appears to have been involved, either directly or peripherally, in
three separate proceedings, all initiated by or on behalf of herein private
respondent and his fellow caddies. That which gave rise to the present petition
for review was originally filed with the Social Security Commission
(SSC) via petition of seventeen (17) persons who styled themselves "Caddies
of Manila Golf and Country Club-PTCCEA" for coverage and availment of
benefits under the Social Security Act as amended, "PTCCEA" being
the acronym of a labor organization, the "Philippine Technical, Clerical,
Commercial Employees Association," with which the petitioners claimed to be
affiliated. The petition, docketed as SSC Case No. 5443, alleged in essence
that although the petitioners were employees of the Manila Golf and Country
Club, a domestic corporation, the latter had not registered them as such with
the SSS.
At about the same time, two other proceedings bearing on the same question
were filed or were pending; these were:
(1) a certification election case filed with the Labor Relations
Division of the Ministry of Labor by the PTCCEA on behalf of the
same caddies of the Manila Golf and Country Club, the case being
titled "Philippine Technical, Clerical, Commercial Association vs.
Manila Golf and Country Club" and docketed as Case No. R4LRDX-M-10-504-78; it appears to have been resolved in favor of
the petitioners therein by Med-Arbiter Orlando S. Rojo who was
thereafter upheld by Director Carmelo S. Noriel, denying the Club's
motion for reconsideration; 1
(2) a compulsory arbitration case initiated before the Arbitration Branch of the Ministry of Labor by the
same labor organization, titled "Philippine Technical, Clerical, Commercial Employees Association
(PTCCEA), Fermin Lamar and Raymundo Jomok vs. Manila Golf and Country Club, Inc., Miguel
Celdran, Henry Lim and Geronimo Alejo;" it was dismissed for lack of merit by Labor Arbiter Cornelio
T. Linsangan, a decision later affirmed on appeal by the National Labor Relations Commission on the
ground that there was no employer-employee relationship between the petitioning caddies and the
2
respondent Club.
In the case before the SSC, the respondent Club filed answer praying for the
dismissal of the petition, alleging in substance that the petitioners, caddies by
occupation, were allowed into the Club premises to render services as such to
the individual members and guests playing the Club's golf course and who
themselves paid for such services; that as such caddies, the petitioners were
not subject to the direction and control of the Club as regards the manner in
which they performed their work; and hence, they were not the Club's
employees.
Subsequently, all but two of the seventeen petitioners of their own accord
withdrew their claim for social security coverage, avowedly coming to realize
that indeed there was no employment relationship between them and the
Club. The case continued, and was eventually adjudicated by the SSC after
protracted proceedings only as regards the two holdouts, Fermin Llamar and
Raymundo Jomok. The Commission dismissed the petition for lack of
merit, 3 ruling:
. . . that the caddy's fees were paid by the golf players themselves
and not by respondent club. For instance, petitioner Raymundo
Jomok averred that for their services as caddies a caddy's Claim
Stub (Exh. "1-A") is issued by a player who will in turn hand over to
management the other portion of the stub known as Caddy Ticket
(Exh. "1") so that by this arrangement management will know how
much a caddy will be paid (TSN, p. 80, July 23, 1980). Likewise,
petitioner Fermin Llamar admitted that caddy works on his own in
accordance with the rules and regulations (TSN, p. 24, February
26, 1980) but petitioner Jomok could not state any policy of
respondent that directs the manner of caddying (TSN, pp. 76-77,
July 23, 1980). While respondent club promulgates rules and
regulations on the assignment, deportment and conduct of caddies
(Exh. "C") the same are designed to impose personal discipline
among the caddies but not to direct or conduct their actual work. In
fact, a golf player is at liberty to choose a caddy of his preference
regardless of the respondent club's group rotation system and has
the discretion on whether or not to pay a caddy. As testified to by
petitioner Llamar that their income depends on the number of
players engaging their services and liberality of the latter (TSN, pp.
10-11, Feb. 26, 1980). This lends credence to respondent's
assertion that the caddies are never their employees in the
absence of two elements, namely, (1) payment of wages and (2)
control or supervision over them. In this connection, our Supreme
Court ruled that in the determination of the existence of an
employer-employee relationship, the "control test" shall be
considered decisive (Philippine Manufacturing Co. vs. Geronimo
and Garcia, 96 Phil. 276; Mansal vs. P.P. Coheco Lumber Co., 96
Phil. 941; Viana vs.
Al-lagadan, et al., 99 Phil. 408; Vda, de Ang, et al. vs. The Manila
Hotel Co., 101 Phil. 358, LVN Pictures Inc. vs. Phil. Musicians
Guild, et al.,
L-12582, January 28, 1961, 1 SCRA 132. . . . (reference being
made also to Investment Planning Corporation Phil. vs. SSS 21
SCRA 925).
Manila Gold and Country Club, ordering that he be reported as such for social
security coverage and paid any corresponding benefits, 8 it conspicuously ignored the
issue of res adjudicata raised in said second assignment. Instead, it drew basis for the reversal from this Court's
9
ruling in Investment Planning Corporation of the Philippines vs. Social Security System, supra and declared that
upon the evidence, the questioned employer-employee relationship between the Club and Fermin Llamar passed the
so-called "control test," establishment in the case i.e., "whether the employer controls or has reserved the right to
control the employee not only as to the result of the work to be done but also as to the means and methods by which
the same is to be accomplished," the Club's control over the caddies encompassing:
That same issue of res adjudicata, ignored by the IAC beyond bare mention
thereof, as already pointed out, is now among the mainways of the private
respondent's defenses to the petition for review. Considered in the perspective
of the incidents just recounted, it illustrates as well as anything can, why the
practice of forum-shopping justly merits censure and punitive sanction.
Because the same question of employer-employee relationship has been
dragged into three different fora, willy-nilly and in quick succession, it has
birthed controversy as to which of the resulting adjudications must now be
recognized as decisive. On the one hand, there is the certification case [R4-
It is well settled that for res adjudicata, or the principle of bar by prior
judgment, to apply, the following essential requisites must concur: (1) there
must be a final judgment or order; (2) said judgment or order must be on the
merits; (3) the court rendering the same must have jurisdiction over the
subject matter and the parties; and (4) there must be between the two cases
identity of parties, identity of subject matter and identity of cause of action. 13
Clearly implicit in these requisites is that the action or proceedings in which is
issued the "prior Judgment" that would operate in bar of a subsequent action
between the same parties for the same cause, be adversarial, or contentious,
however, another matter. The Court does not agree that said facts necessarily
or logically point to such a relationship, and to the exclusion of any form of
arrangements, other than of employment, that would make the respondent's
services available to the members and guest of the petitioner.
As long as it is, the list made in the appealed decision detailing the various
matters of conduct, dress, language, etc. covered by the petitioner's
regulations, does not, in the mind of the Court, so circumscribe the actions or
judgment of the caddies concerned as to leave them little or no freedom of
choice whatsoever in the manner of carrying out their services. In the very
nature of things, caddies must submit to some supervision of their conduct
while enjoying the privilege of pursuing their occupation within the premises
and grounds of whatever club they do their work in. For all that is made to
appear, they work for the club to which they attach themselves on sufference
but, on the other hand, also without having to observe any working hours, free
to leave anytime they please, to stay away for as long they like. It is not
pretended that if found remiss in the observance of said rules, any discipline
may be meted them beyond barring them from the premises which, it may be
supposed, the Club may do in any case even absent any breach of the rules,
and without violating any right to work on their part. All these considerations
clash frontally with the concept of employment.
The IAC would point to the fact that the Club suggests the rate of fees payable
by the players to the caddies as still another indication of the latter's status as
employees. It seems to the Court, however, that the intendment of such fact is
to the contrary, showing that the Club has not the measure of control over the
incidents of the caddies' work and compensation that an employer would
possess.
The Court agrees with petitioner that the group rotation system so-called, is
less a measure of employer control than an assurance that the work is fairly
distributed, a caddy who is absent when his turn number is called simply
losing his turn to serve and being assigned instead the last number for the
day. 17
By and large, there appears nothing in the record to refute the petitioner's
claim that:
(Petitioner) has no means of compelling the presence of a caddy. A
caddy is not required to exercise his occupation in the premises of
petitioner. He may work with any other golf club or he may seek
employment a caddy or otherwise with any entity or individual
without restriction by petitioner. . . .
. . . In the final analysis, petitioner has no was of compelling the
presence of the caddies as they are not required to render a
definite number of hours of work on a single day. Even the group
rotation of caddies is not absolute because a player is at liberty to
choose a caddy of his preference regardless of the caddy's order in
the rotation.
It can happen that a caddy who has rendered services to a player
on one day may still find sufficient time to work elsewhere. Under
such circumstances, he may then leave the premises of petitioner
and go to such other place of work that he wishes (sic). Or a caddy
who is on call for a particular day may deliberately absent himself if
he has more profitable caddying, or another, engagement in some
other place. These are things beyond petitioner's control and for
which it imposes no direct sanctions on the caddies. . . . 18
WHEREFORE, the Decision of the Intermediate Appellant Court, review of
which is sought, is reversed and set aside, it being hereby declared that the
private respondent, Fermin Llamar, is not an employee of petitioner Manila
Golf and Country Club and that petitioner is under no obligation to report him
for compulsory coverage to the Social Security System. No pronouncement as
to costs.
SO ORDERED.
[Syllabus]
SECOND DIVISION
ENCYCLOPAEDIA
BRITANNICA
(PHILIPPINES),
INC., petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION, HON. LABOR ARBITER
TEODORICO L. DOGELIO and BENJAMIN LIMJOCO, respondents.
DECISION
TORRES, JR., J.:
Encyclopaedia Britannica (Philippines), Inc. filed this petition for certiorari to annul
and set aside the resolution of the National Labor Relations Commission, Third
Division, in NLRC Case No. RB IV-5158-76, dated December 28, 1988, the dispositive
portion of which reads:
WHEREFORE, in view of all the foregoing, the decision dated December 7, 1982 of then Labor
Arbiter Teodorico L. Dogelio is hereby AFFIRMED, and the instant appeal is hereby
DISMISSED for lack of merit.
SO ORDERED.
[1]
4. To pay complainant his accrued vacation leave equivalent to 15 days per year of service, or
the total amount of P6,000.00;
5. To pay complainant his unpaid clothing allowance in the total amount of P600.00; and
6. To pay complainant his accrued sick leave equivalent to 15 days per year of service or the
total amount of P6,000.00.
[2]
On appeal, the Third Division of the National Labor Relations Commission affirmed
the assailed decision. The Commission opined that there was no evidence supporting
the allegation that Limjoco was an independent contractor or dealer. The petitioner still
exercised control over Limjoco through its memoranda and guidelines and even
prohibitions on the sale of products other than those authorized by it. In short, the
petitioner company dictated how and where to sell its products. Aside from that fact,
Limjoco passed the costs to the petitioner chargeable against his future
commissions. Such practice proved that he was not an independent dealer or
contractor for it is required by law that an independent contractor should have
substantial capital or investment.
Dissatisfied with the outcome of the case, petitioner Encyclopaedia Britannica now
comes to us in this petition forcertiorari and injunction with prayer for preliminary
injunction. On April 3, 1989, this Court issued a temporary restraining order enjoining
the enforcement of the decision dated December 7, 1982.
The following are the arguments raised by the petitioner:
I
The respondent NLRC gravely abused its discretion in holding that appellants contention that
appellee was an independent contractor is not supported by evidence on record.
II
Respondent NLRC committed grave abuse of discretion in not passing upon the validity of the
pronouncement of the respondent Labor Arbiter granting private respondents claim for payment
of Christmas bonus, Mid-year bonus, clothing allowance and the money equivalent of accrued
and unused vacation and sick leave.
The NLRC ruled that there existed an employer-employee relationship and
petitioner failed to disprove this finding. We do not agree.
In determining the existence of an employer-employee relationship the following
elements must be present: 1) selection and engagement of the employee; 2) payment
of wages; 3) power of dismissal; and 4) the power to control the employees conduct. Of
the above, control of employees conduct is commonly regarded as the most crucial
and determinative indicator of the presence or absence of an employer-employee
relationship.[3] Under the control test, an employer-employee relationship exists where
the person for whom the services are performed reserves the right to control not only
the end to be achieved, but also the manner and means to be used in reaching that
end.[4]
The fact that petitioner issued memoranda to private respondents and to other
division sales managers did not prove that petitioner had actual control over them. The
different memoranda were merely guidelines on company policies which the sales
managers follow and impose on their respective agents. It should be noted that in
petitioners business of selling encyclopedias and books, the marketing of these
products was done through dealership agreements. The sales operations were
primarily conducted by independent authorized agents who did not receive regular
compensations but only commissions based on the sales of the products. These
independent agents hired their own sales representatives, financed their own office
expenses, and maintained their own staff. Thus, there was a need for the petitioner to
issue memoranda to private respondent so that the latter would be apprised of the
company policies and procedures. Nevertheless, private respondent Limjoco and the
other agents were free to conduct and promote their sales operations.The periodic
reports to the petitioner by the agents were but necessary to update the company of
the latters performance and business income.
Private respondent was not an employee of the petitioner company. While it was
true that the petitioner had fixed the prices of the products for reason of uniformity and
private respondent could not alter them, the latter, nevertheless, had free rein in the
means and methods for conducting the marketing operations. He selected his own
personnel and the only reason why he had to notify the petitioner about such
appointments was for purpose of deducting the employees salaries from his
commissions. This he admitted in his testimonies, thus:
Q. Yes, in other words you were on what is known as P&L basis or profit and loss basis?
A. That is right.
Q. If for an instance, just example your sales representative in any period did not produce any
sales, you would not get any money from Britannica, would you?
A. No, sir.
Q. In fact, Britannica by doing the accounting for you as division manager was merely making it
easy for you to concentrate all your effort in selling and you dont worry about accounting, isnt
that so?
A. Yes, sir.
Q. In fact whenever you hire a secretary or trainer you merely hire that person and notify
Britannica so that Encyclopaedia Britannica will give the salaries and deduct it from your
earnings, isnt that so?
A. In certain cases I just hired people previously employed by Encyclopaedia Britannica.
xxx
Q. In this Exhibit 2 you were informing Encyclopaedia Britannica that you have hired a certain
person and you were telling Britannica how her salary was going to be taken cared of, is it
not?
A. Yes, sir.
Q. You said here, please be informed that we have appointed Miss Luz Villan as division trainer
effective May 1, 1971 atP550.00 per month her salary will be chargeable to the Katipunan
and Bayanihan Districts, signed by yourself. What is the Katipunan and Bayanihan District?
A. Those were districts under my division.
Q. In effect you were telling Britannica that you have hired this person and you should charge her
salary to me, is that right?
A. Yes, sir.[5]
Evidently, Limjoco was aware of conflict with other interests which xxx have
increasingly required my personal attention (p. 118, Records). At the very least, it
would indicate that petitioner has no effective control over the personal activities of
Limjoco, who as admitted by the latter had other conflict of interest requiring his
personal attention.
In ascertaining whether the relationship is that of employer-employee or one of
independent contractor, each case must be determined by its own facts and all
features of the relationship are to be considered.[6] The records of the case at bar
showed that there was no such employer-employee relationship.
As stated earlier, the element of control is absent; where a person who works for
another does so more or less at his own pleasure and is not subject to definite hours or
conditions of work, and in turn is compensated according to the result of his efforts and
not the amount thereof, we should not find that the relationship of employer and
employee exists.[7] In fine, there is nothing in the records to show or would indicate that
complainant was under the control of the petitioner in respect of the means and
methods[8] in the performance of complainants work.
Consequently, private respondent is not entitled to the benefits prayed for.
In view of the foregoing premises, the petition is hereby GRANTED, and the
decision of the NLRC is hereby REVERSED AND SET ASIDE.
SO ORDERED.
NARVASA, C.J.:
Susan Carungcong began her career in the insurance industry in 1974 as an
agent of Sun Life Assurance Company of Canada (hereinafter Sun Life). She
signed an "Agent's Agreement" with Sun Life on September 10, 1974
(retroactive to June, 1974), 1 in virtue of which she was designated the latter's "agent to solicit
applications for . . (its) insurance and annuity policies." The contract set out in detail the terms and conditions
particularly those concerning the commissions payable to her under which her relationship with the company would
be governed. This contract was superseded some five years later when she signed two (2) new agreements, both
dated July 1, 1979.
The first, denominated "Career Agent's (or Unit Manager's) Agreement," dealt
with such matters as the agent's commissions, his obligations, limitations on
his authority, and termination of the agreement by death, or by written notice
"with or without cause." It declared that the "Agent shall be an independent
contractor and none of the terms of . . (the) Agreement shall be construed as
creating an employer-employee relationship." 2
The second was titled, "MANAGER'S Supplementary Agreement." Making
explicit reference to the first (Agent's [the Unit Manager's] Agreement) "which
became effective on the 1st day of July, 1979." said second contract
Sun Life agrees to reimburse the New Business Manager for actual
reasonable expenses properly incurred in performing his duties as New
Business Manager provided such expenses are within the guidelines
issued by Sun Life from time to time and are incurred for the purposes of
gaining or producing income and that they are accounted for in the
manner established by Sun Life and made known to the New Business
Manager.
Such reimbursement by Sun Life of said expenses will be made only
upon the submission by the New Business Manager of a statement in
form and content acceptable to Sun Life detailing said expenses with
attached receipts.
It also appears that Ms. Sibayan drew up a report (Summary of
Availments) 7 after having examined and analyzed the pertinent records, and interviewed the unit managers and
agents mentioned in the receipts presented by Carungcong to support her claims for reimbursement of expenses for
1987, 1988 and 1989. Thereafter, on January 4, 1990, and again on January 10, 1990, Carungcong was confronted
with and asked to explain the discrepancies set out in Sibayan's report. On January 11, 1990, she was given a letter
signed by "Merton V. Deveza, CLU, Director, Marketing," which advised of the termination of her relationship with Sun
8
Life, viz.:
In our meeting with you yesterday we presented the charge of fraudulent reimbursement of the Branch
Special Fund against you. Accordingly, you admitted having committed said act.
extension of time to do so), in which she seeks invalidation of the Commission's decision of October 28, 1994, and
consequent restoration of the Labor Arbiter's awards.
Carungcong claims that although she was not, as "new business manager,"
required either to account for her time or perform her duties in a fixed manner,
she was nonetheless an employee subject to the control and supervision of
Sun Life like any other managerial employee. She brands as ludicrous the
accusation leveled against her, of having defrauded Sun Life of the sum of
P6,000.00, since her annual income at that time was in excess of
P3,000,000.00. 15 She contends that the accusation was a mere fabrication of her Unit Managers, Jorge Chua
16
and Corazon de Mesa, who were promoted to Branch Managers after termination of her employment,
and that she
actually had no hand in the preparation of the vouchers involved in the imputed anomaly, this task being entrusted to
the branch office secretary, Lilet Ginete, selected and hired by Sun Life.
She also contends that in dismissing her, Sun Life failed to observe procedural
due process. She was not furnished with copies of the audit report of her
supposedly fraudulent use of her special fund availments, and was never
afforded an opportunity to be heard by Sun Life officials prior to termination of
her employment. 17 She assails the decisions of the NLRC as tainted with bias and grave abuse of discretion,
particularly in ignoring the "deluge of evidence" adduced before the labor arbiter.
On the other hand, Sun Life and its co-respondents argue that the challenged
decisions were in fact precisely based on Carungcong's so-called "deluge of
evidence," and thus cannot in any sense be deemed "capricious, whimsical,
arbitrary or despotic." 18 They invoke the familiar rule that the findings of fact of administrative agencies are
accorded respect, if not indeed finality, by this Court. The assert that jurisprudence and Carungcong's admissions
before the Labor Arbiter negate the existence of an employment relationship; that in truth Carungcong was duly
informed of the charge of fraud and dishonesty, a charge supported by adequate proof; and that therefore the
cancellation of the business relationship between them and Carungcong was valid and legal, effected with due
process and for just cause.
The facts involved in this case are laid bare in considerable detail, and the
issues identified and extensively discussed by the parties, in their pleadings,
namely: respondents' Comment dated May 4, 1995; 19 petitioner's Reply thereto dated
20
21
27
General's Office; the Addendum to Respondents' Comment, dated July 15, 1997; and petitioner's "Reply to
28
Private Respondents' 'Addendum' filed without leave of court, with Motion to Expunge . . ," dated July 30, 1997.
30
appear that she had raised and disbursed the entire fund by herself, and although she later obtained reimbursement
therefor in the sum of more than P30,000.00, she never returned to them what they had contributed.
Chua and de Mesa also denied Carungcong's claim that she had treated them
to food and drinks on December 7, 1987 at Kimpura (the bill amounting to
P570.90), at Jade Garden on January 20, 1988 (the bill being P734.16), or
at Flavors & Spices on November 5, 1988 (the bill coming to P420.66). 33 De
Mesa also affirmed that contrary to Carungcong's claim, she had not been treated by the latter at the Kamayan (the
34
chit being in the sum of P1,099.71) or atTropical Hut (the bill P378.50).
Robert Tan belied Carungcong's claim that she had paid for their food or
drinks at the Emerald Garden (the bill presented being in the sum of P742.33)
or at Sugarhouse (the bill being P220.02). 35
Lucila L. Natividad also belied Carungcong's assertion that she had treated
her at the Flavours and Spices (the bill being P834.48). 36
So, too, Cristina J. Gloton gave the lie to Carungcong's claim that she
had treated her at the Hotel Intercontinental (the bill on one occasion being
P559.98). 37
Cynthia Suan denied having been entertained by Carungcong at the Manila
Peninsula (the bill supposedly being in the sum of P359.75). 38
Zenaida B. Lim confirmed her earlier denial that Carungcong had paid for their
snacks at Bing-Bing's (the bill being P182.40). 39
Maynard Granados denied, among other things, that he was treated to dinner
by Carungcong at the Hotel Intercontinental on March 29, 1988 (the bill being
supposedly P437.95). 40
The record thus appears to establish adequate cause for Sun Life to terminate
its relationship with Susan Carungcong. Her attention was drawn to the
perfidious nature of her claims for reimbursement; she was accorded an
opportunity to explain the same; she refused to do so.
Prescinding therefrom, the contracts she had willingly and knowingly signed
with Sun Life 41 repeatedly and clearly provided that said agreements were terminable by either party by written
notice with or without cause. Her "Career Agent's (or Unit Manager's) Agreement" inter alia provided for termination of
42
Noteworthy is that this last agreement of January 1, 1986 emphasized, like the
"Career Agent's (or Unit Manager's) Agreement" first signed by her, 44 that in the
performance of her duties defined herein. Carungcong would be considered an independent contractor and not . . an
employee of Sun Life," and that "(u)nder no circumstance shall the New Business Manager and/or his employees be
considered employees of Sun Life."
status as such, for indicated in the very face of her latest contract is the
fact that she was accorded all the chances she needed to seek
professional and legal advice relative thereto before she signed the said
contract.
Indeed, as adverted to by herein respondents, the contracts/agreements
entered into by the parties herein are the laws between the said parties.
Moreover, it is true that complainant Carungcong's duties and functions
derived from her then existing agreements/contracts were made subject
to rules and regulations issued by respondent company, and for that
matter, have likewise been made subject of certain limitations imposed
by said respondent company. Nonetheless, these are not sufficient to
accord the effect of establishing employer-employee relationship absent
in this case. This is so because the insurance business is not just any
other ordinary business. It is one that is imbued with public interest
hence, it must be governed buy the rules and regulations of the state.
The controls adverted to by complainant are latent in the kind of
business she is into and are mainly aimed at promoting the results the
parties so desire and do not necessarily create any employer-employee
relationships, where the employers' controls have to interfere in the
methods and means by which the employee would like to employ to
arrive at the desired results.
This is not without any jurisprudential support as earlier pointed out by
herein respondent. The Supreme Court in the case of Insular Life
Assurance Co., Ltd. versus National Labor Relations Commission and
Melencio Basiao (179 SCRA 459) emphatically discoursed in this wise:
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 to 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. The distinction acquires particular relevance in the case of
an enterprise affected with public interest and is on that
account subject to regulation by the State with respect, not
only to the relations between insurer and insured but also to
the internal affairs of the Insurance company. Rules and
regulations governing the conduct of the business are
provided for in the Insurance Code and enforced by the
Insurance Commissioner. It is therefore usual and expected
for an insurance company to promulgate a set of rules to
guide its commission agents in selling its policies that they
may not run afoul of the law and what it requires or prohibits.
(Emphasis supplied.)
Complainant having admitted that she was free to work as she pleases,
at the place and time she felt convenient for her to do so is not unlike
Melencio Basiao in the aforequoted case (supra) where in spite of the
controls imposed by respondents, she suffered no interference
whatsoever in relation to the manner and methodology she used for her
to achieve her desired results, this is clear from her testimony given in
this wise:
"A. Yes, and as I said as a branch manager, we have no
specific time to stay in the office because its either if I am not
in the office, I am monitoring my agents in the field or a unit
manager I trained them in the field or recruit." (pp. 28-29,
TSN, 31 May 1991, Emphasis supplied.)
For that matter, complainant Carungcong was never paid a fixed wage or
salary but was mainly paid by commissions, depending on the level and
volume of her performance/production, the number of trained agents,
when taken in and assigned to her, being responsible for her added
income as she gets a certain percentage from the said agents'
production as part of her commission.
In the second judgment of October 28, 1994, 47 respondent Commission stressed the following
points:
At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr. Gutierrez
tried to get in touch with him by phone. Thereafter, Dr. Gutierrez informed
Cruz that the operation might be delayed due to the late arrival of Dr. Hosaka.
In the meantime, the patient, petitioner Erlinda said to Cruz, "Mindy, inip na
inip na ako, ikuha mo ako ng ibang Doctor."
By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner
Rogelio already wanted to pull out his wife from the operating room. He met
Dr. Garcia, who remarked that he was also tired of waiting for Dr. Hosaka. Dr.
Hosaka finally arrived at the hospital at around 12:10 in the afternoon, or more
than three (3) hours after the scheduled operation.
Cruz, who was then still inside the operating room, heard about Dr. Hosakas
arrival. While she held the hand of Erlinda, Cruz saw Dr. Gutierrez trying to
intubate the patient. Cruz heard Dr. Gutierrez utter: "ang hirap ma-intubate
nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." Cruz noticed a bluish
discoloration of Erlindas nailbeds on her left hand. She (Cruz) then heard Dr.
Hosaka instruct someone to call Dr. Calderon, another anesthesiologist. When
he arrived, Dr. Calderon attempted to intubate the patient. The nailbeds of the
patient remained bluish, thus, she was placed in a trendelenburg position a
position where the head of the patient is placed in a position lower than her
feet. At this point, Cruz went out of the operating room to express her concern
to petitioner Rogelio that Erlindas operation was not going well.
Cruz quickly rushed back to the operating room and saw that the patient was
still in trendelenburg position. At almost 3:00 in the afternoon, she saw Erlinda
being wheeled to the Intensive Care Unit (ICU). The doctors explained to
petitioner Rogelio that his wife had bronchospasm. Erlinda stayed in the ICU
for a month. She was released from the hospital only four months later or on
November 15, 1985. Since the ill-fated operation, Erlinda remained in
comatose condition until she died on August 3, 1999.1
Petitioners filed with the Regional Trial Court of Quezon City a civil case for
damages against private respondents. After due trial, the court a quo rendered
judgment in favor of petitioners. Essentially, the trial court found that private
respondents were negligent in the performance of their duties to Erlinda. On
appeal by private respondents, the Court of Appeals reversed the trial courts
decision and directed petitioners to pay their "unpaid medical bills" to private
respondents.
Petitioners filed with this Court a petition for review on certiorari. The private
respondents were then required to submit their respective comments thereon.
On December 29, 1999, this Court promulgated the decision which private
respondents now seek to be reconsidered. The dispositive portion of said
Decision states:
WHEREFORE, the decision and resolution of the appellate court
appealed from are hereby modified so as to award in favor of petitioners,
and solidarily against private respondents the following: 1)
P1,352,000.00 as actual damages computed as of the date of
promulgation of this decision plus a monthly payment of P8,000.00 up to
the time that petitioner Erlinda Ramos expires or miraculously survives;
2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate
damages; 4) P100,000.00 each exemplary damages and attorneys fees;
and 5) the costs of the suit.2
In his Motion for Reconsideration, private respondent Dr. Hosaka submits the
following as grounds therefor:
I
THE HONORABLE SUPREME COURT COMMITTED REVERSIBLE ERROR
WHEN IT HELD RESPONDENT DR. HOSAKA LIABLE ON THE BASIS OF
THE "CAPTAIN-OF-THE-SHIP" DOCTRINE.
II
THE HONORABLE SUPREME COURT ERRED IN HOLDING RESPONDENT
DR. HOSAKA LIABLE DESPITE THE FACT THAT NO NEGLIGENCE CAN
BE ATTRIBUTABLE TO HIM.
III
In the Resolution of February 21, 2000, this Court denied the motions for
reconsideration of private respondents Drs. Hosaka and Gutierrez. They then
filed their respective second motions for reconsideration. The Philippine
College of Surgeons filed its Petition-in-Intervention contending in the main
that this Court erred in holding private respondent Dr. Hosaka liable under the
captain of the ship doctrine. According to the intervenor, said doctrine had
long been abandoned in the United States in recognition of the developments
in modern medical and hospital practice.6 The Court noted these pleadings in
the Resolution of July 17, 2000.7
On March 19, 2001, the Court heard the oral arguments of the parties,
including the intervenor. Also present during the hearing were the amicii
curiae: Dr. Felipe A. Estrella, Jr., Consultant of the Philippine Charity
Sweepstakes, former Director of the Philippine General Hospital and former
Secretary of Health; Dr. Iluminada T. Camagay, President of the Philippine
Society of Anesthesiologists, Inc. and Professor and Vice-Chair for Research,
Department of Anesthesiology, College of Medicine-Philippine General
Hospital, University of the Philippines; and Dr. Lydia M. Egay, Professor and
Vice-Chair for Academics, Department of Anesthesiology, College of
Medicine-Philippine General Hospital, University of the Philippines.
The Court enumerated the issues to be resolved in this case as follows:
1. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS LIABLE
FOR NEGLIGENCE;
2. WHETHER OR NOT DR. PERFECTA GUTIERREZ
(ANESTHESIOLOGIST) IS LIABLE FOR NEGLIGENCE; AND
3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL
CENTER) IS LIABLE FOR ANY ACT OF NEGLIGENCE COMMITTED
BY THEIR VISITING CONSULTANT SURGEON AND
ANESTHESIOLOGIST.8
We shall first resolve the issue pertaining to private respondent Dr. Gutierrez.
She maintains that the Court erred in finding her negligent and in holding that
it was the faulty intubation which was the proximate cause of Erlindas
medical evaluation if there is an indication. When we ask for a cardiopulmonary clearance it is not in fact to tell them if this patient is going to
be fit for anesthesia, the decision to give anesthesia rests on the
anesthesiologist. What we ask them is actually to give us the functional
capacity of certain systems which maybe affected by the anesthetic
agent or the technique that we are going to use. But the burden of
responsibility in terms of selection of agent and how to administer it rest
on the anesthesiologist.10
The conduct of a preanesthetic/preoperative evaluation prior to an operation,
whether elective or emergency, cannot be dispensed with. 11 Such evaluation
is necessary for the formulation of a plan of anesthesia care suited to the
needs of the patient concerned.
Pre-evaluation for anesthesia involves taking the patients medical history,
reviewing his current drug therapy, conducting physical examination,
interpreting laboratory data, and determining the appropriate prescription of
preoperative medications as necessary to the conduct of anesthesia. 12
Physical examination of the patient entails not only evaluating the patients
central nervous system, cardiovascular system and lungs but also the upper
airway. Examination of the upper airway would in turn include an analysis of
the patients cervical spine mobility, temporomandibular mobility, prominent
central incisors, deceased or artificial teeth, ability to visualize uvula and the
thyromental distance.13
Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative
evaluation on Erlinda. As she herself admitted, she saw Erlinda for the first
time on the day of the operation itself, one hour before the scheduled
operation. She auscultated14 the patients heart and lungs and checked the
latters blood pressure to determine if Erlinda was indeed fit for
operation.15 However, she did not proceed to examine the patients airway.
Had she been able to check petitioner Erlindas airway prior to the operation,
Dr. Gutierrez would most probably not have experienced difficulty in intubating
the former, and thus the resultant injury could have been avoided. As we have
stated in our Decision:
In the case at bar, respondent Dra. Gutierrez admitted that she saw
Erlinda for the first time on the day of the operation itself, on 17 June
1985. Before this date, no prior consultations with, or pre-operative
evaluation of Erlinda was done by her. Until the day of the operation,
respondent Dra. Gutierrez was unaware of the physiological make-up
and needs of Erlinda. She was likewise not properly informed of the
possible difficulties she would face during the administration of
anesthesia to Erlinda. Respondent Dra. Gutierrez act of seeing her
patient for the first time only an hour before the scheduled operative
procedure was, therefore, an act of exceptional negligence and
professional irresponsibility. The measures cautioning prudence and
vigilance in dealing with human lives lie at the core of the physicians
centuries-old Hippocratic Oath. Her failure to follow this medical
procedure is, therefore, a clear indicia of her negligence.16
Further, there is no cogent reason for the Court to reverse its finding that it
was the faulty intubation on Erlinda that caused her comatose condition. There
is no question that Erlinda became comatose after Dr. Gutierrez performed a
medical procedure on her. Even the counsel of Dr. Gutierrez admitted to this
fact during the oral arguments:
CHIEF JUSTICE:
Mr. Counsel, you started your argument saying that this involves a
comatose patient?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
How do you mean by that, a comatose, a comatose after any other
acts were done by Dr. Gutierrez or comatose before any act was
done by her?
ATTY. GANA:
Gutierrez theory unacceptable. In the first place, Dr. Eduardo Jamora, the
witness who was presented to support her (Dr. Gutierrez) theory, was a
pulmonologist. Thus, he could not be considered an authority on anesthesia
practice and procedure and their complications.19
Secondly, there was no evidence on record to support the theory that Erlinda
developed an allergic reaction to pentothal. Dr. Camagay enlightened the
Court as to the manifestations of an allergic reaction in this wise:
DR. CAMAGAY:
All right, let us qualify an allergic reaction. In medical terminology
an allergic reaction is something which is not usual response and it
is further qualified by the release of a hormone called histamine
and histamine has an effect on all the organs of the body generally
release because the substance that entered the body reacts with
the particular cell, the mass cell, and the mass cell secretes this
histamine. In a way it is some form of response to take away that
which is not mine, which is not part of the body. So, histamine has
multiple effects on the body. So, one of the effects as you will see
you will have redness, if you have an allergy you will have tearing
of the eyes, you will have swelling, very crucial swelling sometimes
of the larynges which is your voice box main airway, that swelling
may be enough to obstruct the entry of air to the trachea and you
could also have contraction, constriction of the smaller airways
beyond the trachea, you see you have the trachea this way, we
brought some visual aids but unfortunately we do not have a
projector. And then you have the smaller airways, the bronchi and
then eventually into the mass of the lungs you have the bronchus.
The difference is that these tubes have also in their walls muscles
and this particular kind of muscles is smooth muscle so, when
histamine is released they close up like this and that phenomenon
is known as bronco spasm. However, the effects of histamine also
on blood vessels are different. They dilate blood vessel open up
and the patient or whoever has this histamine release has
hypertension or low blood pressure to a point that the patient may
have decrease blood supply to the brain and may collapse so, you
may have people who have this.20
These symptoms of an allergic reaction were not shown to have been extant
in Erlindas case. As we held in our Decision, "no evidence of stridor, skin
reactions, or wheezing some of the more common accompanying signs of
an allergic reaction appears on record. No laboratory data were ever
presented to the court."21
Dr. Gutierrez, however, insists that she successfully intubated Erlinda as
evidenced by the fact that she was revived after suffering from cardiac arrest.
Dr. Gutierrez faults the Court for giving credence to the testimony of Cruz on
the matter of the administration of anesthesia when she (Cruz), being a nurse,
was allegedly not qualified to testify thereon. Rather, Dr. Gutierrez invites the
Courts attention to her synopsis on what transpired during Erlindas
intubation:
12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 mg)
given by slow IV. 02 was started by mask. After pentothal injection this
was followed by IV injection of Norcuron 4mg. After 2 minutes 02 was
given by positive pressure for about one minute. Intubation with
endotracheal tube 7.5 m in diameter was done with slight difficulty (short
neck & slightly prominent upper teeth) chest was examined for breath
sounds & checked if equal on both sides. The tube was then anchored to
the mouth by plaster & cuff inflated. Ethrane 2% with 02 4 liters was
given. Blood pressure was checked 120/80 & heart rate regular and
normal 90/min.
12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was
discontinued & 02 given alone. Cyanosis disappeared. Blood pressure
and heart beats stable.
12:30 p.m. Cyanosis again reappeared this time with sibilant and
sonorous rales all over the chest. D_5%_H20 & 1 ampule of
aminophyline by fast drip was started. Still the cyanosis was persistent.
Q
All the laryngoscope. But if I remember right somewhere in the
re-direct, a certain lawyer, you were asked that you did a first attempt
and the question was did you withdraw the tube? And you said you
never withdrew the tube, is that right?
A
Yes.
Q
Yes. And so if you never withdrew the tube then there was no,
there was no insertion of the tube during that first attempt. Now, the other
thing that we have to settle here is when cyanosis occurred, is it
recorded in the anesthesia record when the cyanosis, in your recording
when did the cyanosis occur?
A
(sic)
Q
Is it a standard practice of anesthesia that whatever you do
during that period or from the time of induction to the time that you
probably get the patient out of the operating room that every single
action that you do is so recorded in your anesthesia record?
A
I was not able to record everything I did not have time anymore
because I did that after the, when the patient was about to leave the
operating room. When there was second cyanosis already that was the
(interrupted)
Q
A
The first medication, no, first the patient was oxygenated for
around one to two minutes.
Q
A
Yes, and then, I asked the resident physician to start giving the
pentothal very slowly and that was around one minute.
Q
A
Yes, and then, after one minute another oxygenation was given
and after (interrupted)
Q
12:18?
A
Yes, and then after giving the oxygen we start the menorcure
which is a relaxant. After that relaxant (interrupted)
Q
After that relaxant, how long do you wait before you do any
manipulation?
A
Q
So, if our estimate of the time is accurate we are now more or
less 12:19, is that right?
A
Maybe.
Q
12:19. And at that time, what would have been done to this
patient?
A
After that time you examine the, if there is relaxation of the jaw
which you push it downwards and when I saw that the patient was relax
because that monorcure is a relaxant, you cannot intubate the patient or
insert the laryngoscope if it is not keeping him relax. So, my first attempt
when I put the laryngoscope on I saw the trachea was deeply interiorly.
So, what I did ask "mahirap ata ito ah." So, I removed the laryngoscope
and oxygenated again the patient.
Q
So, more or less you attempted to do an intubation after the first
attempt as you claimed that it was only the laryngoscope that was
inserted.
A
Yes.
Q
And in the second attempt you inserted the laryngoscope and
now possible intubation?
A
Yes.
Q
And at that point, you made a remark, what remark did you
make?
A
I said "mahirap ata ito" when the first attempt I did not see the
trachea right away. That was when I (interrupted)
Q
Yes.
A
On the second attempt I was able to intubate right away within
two to three seconds.
Q
At what point, for purposes of discussion without accepting it, at
what point did you make the comment "na mahirap ata to intubate, mali
ata ang pinasukan"
A
I did not say "mali ata ang pinasukan" I never said that.
Q
Well, just for the information of the group here the remarks I am
making is based on the documents that were forwarded to me by the
Supreme Court. That is why for purposes of discussion I am trying to
clarify this for the sake of enlightenment. So, at what point did you ever
make that comment?
A
At what point?
A
When the first attempt when I inserted the laryngoscope for the
first time.
Q
So, when you claim that at the first attempt you inserted the
laryngoscope, right?
A
Yes.
Q
But in one of the recordings somewhere at the, somewhere in the
transcript of records that when the lawyer of the other party try to inquire
from you during the first attempt that was the time when "mayroon ba
kayong hinugot sa tube, I do not remember the page now, but it seems
to me it is there. So, that it was on the second attempt that (interrupted)
A
Q
Okay, assuming that this was done at 12:21 and looking at the
anesthesia records from 12:20 to 12:30 there was no recording of the
vital signs. And can we presume that at this stage there was already
some problems in handling the patient?
A
Not yet.
Ah, you did not have time, why did you not have time?
A
Because it was so fast, I really (at this juncture the witness is
laughing)
Q
No, I am just asking. Remember I am not here not to pin point on
anybody I am here just to more or less clarify certainty more ore less on
the record.
A
Yes, Sir.
Q
And so it seems that there were no recording during that span of
ten (10) minutes. From 12:20 to 12:30, and going over your narration, it
seems to me that the cyanosis appeared ten (10) minutes after induction,
is that right?
A
Yes.
Q
And that is after induction 12:15 that is 12:25 that was the first
cyanosis?
A
Yes.
We cannot (interrupted)
Q
Huwag ho kayong makuwan, we are just trying to enlighten, I am
just going over the record ano,kung mali ito kuwan eh di ano.
So, ganoon po ano, that it seems to me that there is no recording from
12:20 to 12:30, so, I am just wondering why there were no recordings
during the period and then of course the second cyanosis, after the first
cyanosis. I think that was the time Dr. Hosaka came in?
We cannot thus give full credence to Dr. Gutierrez synopsis in light of her
admission that it does not fully reflect the events that transpired during the
administration of anesthesia on Erlinda. As pointed out by Dr. Estrella, there
was a ten-minute gap in Dr. Gutierrez synopsis, i.e., the vital signs of Erlinda
were not recorded during that time. The absence of these data is particularly
significant because, as found by the trial court, it was the absence of oxygen
supply for four (4) to five (5) minutes that caused Erlindas comatose
condition.
On the other hand, the Court has no reason to disbelieve the testimony of
Cruz. As we stated in the Decision, she is competent to testify on matters
which she is capable of observing such as, the statements and acts of the
physician and surgeon, external appearances and manifest conditions which
are observable by any one.24 Cruz, Erlindas sister-in-law, was with her inside
the operating room. Moreover, being a nurse and Dean of the Capitol Medical
Center School of Nursing at that, she is not entirely ignorant of anesthetic
procedure. Cruz narrated that she heard Dr. Gutierrez remark, "Ang hirap maintubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." She
observed that the nailbeds of Erlinda became bluish and thereafter Erlinda
was placed in trendelenburg position.25 Cruz further averred that she noticed
that the abdomen of Erlinda became distended.26
The cyanosis (bluish discoloration of the skin or mucous membranes caused
by lack of oxygen or abnormal hemoglobin in the blood) and enlargement of
the stomach of Erlinda indicate that the endotracheal tube was improperly
inserted into the esophagus instead of the trachea. Consequently, oxygen was
delivered not to the lungs but to the gastrointestinal tract. This conclusion is
supported by the fact that Erlinda was placed in trendelenburg position. This
indicates that there was a decrease of blood supply to the patients brain. The
brain was thus temporarily deprived of oxygen supply causing Erlinda to go
into coma.
The injury incurred by petitioner Erlinda does not normally happen absent any
negligence in the administration of anesthesia and in the use of an
endotracheal tube. As was noted in our Decision, the instruments used in the
administration of anesthesia, including the endotracheal tube, were all under
the exclusive control of private respondents Dr. Gutierrez and Dr.
Hosaka.27 In Voss vs. Bridwell,28 which involved a patient who suffered brain
damage due to the wrongful administration of anesthesia, and even before the
scheduled mastoid operation could be performed, the Kansas Supreme Court
applied the doctrine of res ipsa loquitur, reasoning that the injury to the patient
therein was one which does not ordinarily take place in the absence of
negligence in the administration of an anesthetic, and in the use and
employment of an endotracheal tube. The court went on to say that
"[o]rdinarily a person being put under anesthesia is not rendered decerebrate
as a consequence of administering such anesthesia in the absence of
negligence. Upon these facts and under these circumstances, a layman would
be able to say, as a matter of common knowledge and observation, that the
consequences of professional treatment were not as such as would ordinarily
have followed if due care had been exercised." 29Considering the application of
the doctrine of res ipsa loquitur, the testimony of Cruz was properly given
credence in the case at bar.
For his part, Dr. Hosaka mainly contends that the Court erred in finding him
negligent as a surgeon by applying the Captain-of-the-Ship doctrine.30 Dr.
Hosaka argues that the trend in United States jurisprudence has been to reject
said doctrine in light of the developments in medical practice. He points out
that anesthesiology and surgery are two distinct and specialized fields in
medicine and as a surgeon, he is not deemed to have control over the acts of
Dr. Gutierrez. As anesthesiologist, Dr. Gutierrez is a specialist in her field and
has acquired skills and knowledge in the course of her training which Dr.
Hosaka, as a surgeon, does not possess.31 He states further that current
American jurisprudence on the matter recognizes that the trend towards
specialization in medicine has created situations where surgeons do not
always have the right to control all personnel within the operating
room,32 especially a fellow specialist.33
Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital,34 which
involved a suit filed by a patient who lost his voice due to the wrongful
insertion of the endotracheal tube preparatory to the administration of
Yes.
CHIEF JUSTICE:
In other words, I understand that in this particular case that was the
case, three hours waiting and the patient was already on the
operating table (interrupted)
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
Would you therefore conclude that the surgeon contributed to the
aggravation of the anxiety of the patient?
DR. CAMAGAY:
That this operation did not take place as scheduled is already a
source of anxiety and most operating tables are very narrow and
that patients are usually at risk of falling on the floor so there are
restraints that are placed on them and they are never, never left
alone in the operating room by themselves specially if they are
already pre-medicated because they may not be aware of some of
their movement that they make which would contribute to their
injury.
CHIEF JUSTICE:
In other words due diligence would require a surgeon to come on
time?
DR. CAMAGAY:
I think it is not even due diligence it is courtesy.
CHIEF JUSTICE:
Courtesy.
DR. CAMAGAY:
And care.
CHIEF JUSTICE:
Duty as a matter of fact?
DR. CAMAGAY:
Yes, Your Honor.43
Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled
operation of petitioner Erlinda is violative, not only of his duty as a physician
"to serve the interest of his patients with the greatest solicitude, giving them
always his best talent and skill,"44 but also of Article 19 of the Civil Code which
requires a person, in the performance of his duties, to act with justice and give
everyone his due.
Anent private respondent DLSMCs liability for the resulting injury to petitioner
Erlinda, we held that respondent hospital is solidarily liable with respondent
doctors therefor under Article 2180 of the Civil Code 45 since there exists an
employer-employee relationship between private respondent DLSMC and Drs.
Gutierrez and Hosaka:
In other words, private hospitals, hire, fire and exercise real control over
their attending and visiting "consultant" staff. While "consultants" are not,
technically employees, x x x the control exercised, the hiring and the
right to terminate consultants all fulfill the important hallmarks of an
employer-employee relationship, with the exception of the payment of
wages. In assessing whether such a relationship in fact exists, the
control test is determining. x x x46
DLSMC however contends that applying the four-fold test in determining
whether such a relationship exists between it and the respondent doctors, the
petitioners as a result of said injury, the amount of which, however, could not
be made with certainty at the time of the promulgation of the decision. The
Court justified such award in this manner:
Our rules on actual or compensatory damages generally assume that at
the time of litigation, the injury suffered as a consequence of an act of
negligence has been completed and that the cost can be liquidated.
However, these provisions neglect to take into account those situations,
as in this case, where the resulting injury might be continuing and
possible future complications directly arising from the injury, while certain
to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they
are to adequately and correctly respond to the injury caused, should be
one which compensates for pecuniary loss incurred and proved, up to
the time of trial; and one which would meet pecuniary loss certain to be
suffered but which could not, from the nature of the case, be made with
certainty. In other words, temperate damages can and should be
awarded on top of actual or compensatory damages in instances where
the injury is chronic and continuing. And because of the unique nature of
such cases, no incompatibility arises when both actual and temperate
damages are provided for. The reason is that these damages cover two
distinct phases.
As it would not be equitableand certainly not in the best interests of the
administration of justicefor the victim in such cases to constantly come
before the courts and invoke their aid in seeking adjustments to the
compensatory damages previously awardedtemperate damages are
appropriate. The amount given as temperate damages, though to a
certain extent speculative, should take into account the cost of proper
care.
In the instant case, petitioners were able to provide only home-based
nursing care for a comatose patient who has remained in that condition
for over a decade. Having premised our award for compensatory
damages on the amount provided by petitioners at the onset of litigation,
it would be now much more in step with the interests of justice if the
value awarded for temperate damages would allow petitioners to provide
optimal care for their loved one in a facility which generally specializes in
such care. They should not be compelled by dire circumstances to
provide substandard care at home without the aid of professionals, for
anything less would be grossly inadequate. Under the circumstances, an
award of P1,500,000.00 in temperate damages would therefore be
reasonable.54
However, subsequent to the promulgation of the Decision, the Court was
informed by petitioner Rogelio that petitioner Erlinda died on August 3,
1999.55 In view of this supervening event, the award of temperate damages in
addition to the actual or compensatory damages would no longer be justified
since the actual damages awarded in the Decision are sufficient to cover the
medical expenses incurred by petitioners for the patient. Hence, only the
amounts representing actual, moral and exemplary damages, attorneys fees
and costs of suit should be awarded to petitioners.
WHEREFORE, the assailed Decision is hereby modified as follows:
(1) Private respondent De Los Santos Medical Center is hereby absolved from
liability arising from the injury suffered by petitioner Erlinda Ramos on June
17, 1985;
(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are
hereby declared to be solidarily liable for the injury suffered by petitioner
Erlinda on June 17, 1985 and are ordered to pay petitioners
(a) P1,352,000.00 as actual damages;
(b) P2,000,000.00 as moral damages;
(c) P100,000.00 as exemplary damages;
(d) P100,000.00 as attorneys fees; and
(e) the costs of the suit.
SO ORDERED.
the Agreement. ABS-CBN would pay the talent fees on the 10th and 25th days
of the month.
On 1 April 1996, SONZA wrote a letter to ABS-CBNs President, Eugenio
Lopez III, which reads:
Dear Mr. Lopez,
We would like to call your attention to the Agreement dated May 1994
entered into by your goodself on behalf of ABS-CBN with our company
relative to our talent JOSE Y. SONZA.
As you are well aware, Mr. Sonza irrevocably resigned in view of recent
events concerning his programs and career. We consider these acts of
the station violative of the Agreement and the station as in breach
thereof. In this connection, we hereby serve notice of rescission of said
Agreement at our instance effective as of date.
Mr. Sonza informed us that he is waiving and renouncing recovery of the
remaining amount stipulated in paragraph 7 of the Agreement but
reserves the right to seek recovery of the other benefits under said
Agreement.
Thank you for your attention.
Very truly yours,
(Sgd.)
JOSE Y. SONZA
President and Gen. Manager4
On 30 April 1996, SONZA filed a complaint against ABS-CBN before the
Department of Labor and Employment, National Capital Region in Quezon
City. SONZA complained that ABS-CBN did not pay his salaries, separation
pay, service incentive leave pay, 13th month pay, signing bonus, travel
allowance and amounts due under the Employees Stock Option Plan
("ESOP").
The Labor Arbiter rendered his Decision dated 8 July 1997 dismissing the
complaint for lack of jurisdiction.6 The pertinent parts of the decision read as
follows:
xxx
While Philippine jurisprudence has not yet, with certainty, touched on the
"true nature of the contract of a talent," it stands to reason that a "talent"
as above-described cannot be considered as an employee by reason of
the peculiar circumstances surrounding the engagement of his services.
It must be noted that complainant was engaged by respondent by
reason of his peculiar skills and talent as a TV host and a radio
broadcaster. Unlike an ordinary employee, he was free to perform
the services he undertook to render in accordance with his own
style. The benefits conferred to complainant under the May 1994
Agreement are certainly very much higher than those generally given to
employees. For one, complainant Sonzas monthly talent fees amount to
a staggering P317,000. Moreover, his engagement as a talent was
covered by a specific contract. Likewise, he was not bound to render
eight (8) hours of work per day as he worked only for such number of
hours as may be necessary.
The fact that per the May 1994 Agreement complainant was accorded
some benefits normally given to an employee is
inconsequential. Whatever benefits complainant enjoyed arose from
specific agreement by the parties and not by reason of employeremployee relationship. As correctly put by the respondent, "All these
benefits are merely talent fees and other contractual benefits and should
not be deemed as salaries, wages and/or other remuneration accorded
to an employee, notwithstanding the nomenclature appended to these
benefits. Apropos to this is the rule that the term or nomenclature given
to a stipulated benefit is not controlling, but the intent of the parties to the
Agreement conferring such benefit."
managing the careers of Mr. Sonza and his broadcast partner, Mrs.
Carmela C. Tiangco. (Opposition to Motion to Dismiss)
Clearly, the relations of principal and agent only accrues between
complainant Sonza and MJMDC, and not between ABS-CBN and
MJMDC. This is clear from the provisions of the May 1994 Agreement
which specifically referred to MJMDC as the AGENT. As a matter of
fact, when complainant herein unilaterally rescinded said May 1994
Agreement, it was MJMDC which issued the notice of rescission in
behalf of Mr. Sonza, who himself signed the same in his capacity as
President.
Moreover, previous contracts between Mr. Sonza and ABS-CBN reveal
the fact that historically, the parties to the said agreements are ABS-CBN
and Mr. Sonza. And it is only in the May 1994 Agreement, which is the
latest Agreement executed between ABS-CBN and Mr. Sonza, that
MJMDC figured in the said Agreement as the agent of Mr. Sonza.
We find it erroneous to assert that MJMDC is a mere labor-only
contractor of ABS-CBN such that there exist[s] employer-employee
relationship between the latter and Mr. Sonza. On the contrary, We find it
indubitable, that MJMDC is an agent, not of ABS-CBN, but of the
talent/contractor Mr. Sonza, as expressly admitted by the latter and
MJMDC in the May 1994 Agreement.
It may not be amiss to state that jurisdiction over the instant controversy
indeed belongs to the regular courts, the same being in the nature of an
action for alleged breach of contractual obligation on the part of
respondent-appellee. As squarely apparent from complainant-appellants
Position Paper, his claims for compensation for services, 13th month
pay, signing bonus and travel allowance against respondent-appellee
are not based on the Labor Code but rather on the provisions of the May
1994 Agreement, while his claims for proceeds under Stock Purchase
Agreement are based on the latter. A portion of the Position Paper of
complainant-appellant bears perusal:
The instant case involves big names in the broadcast industry, namely Jose
"Jay" Sonza, a known television and radio personality, and ABS-CBN, one of
the biggest television and radio networks in the country.
SONZA contends that the Labor Arbiter has jurisdiction over the case because
he was an employee of ABS-CBN. On the other hand, ABS-CBN insists that
the Labor Arbiter has no jurisdiction because SONZA was an independent
contractor.
Employee or Independent Contractor?
The existence of an employer-employee relationship is a question of fact.
Appellate courts accord the factual findings of the Labor Arbiter and the NLRC
not only respect but also finality when supported by substantial
evidence.15 Substantial evidence means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.16 A party
cannot prove the absence of substantial evidence by simply pointing out that
there is contrary evidence on record, direct or circumstantial. The Court does
not substitute its own judgment for that of the tribunal in determining where the
weight of evidence lies or what evidence is credible. 17
SONZA maintains that all essential elements of an employer-employee
relationship are present in this case. Case law has consistently held that the
elements of an employer-employee 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 employee on the means
and methods by which the work is accomplished.18 The last element, the socalled "control test", is the most important element.19
A. Selection and Engagement of Employee
ABS-CBN engaged SONZAs services to co-host its television and radio
programs because of SONZAs peculiar skills, talent and celebrity status.
SONZA contends that the "discretion used by respondent in specifically
selecting and hiring complainant over other broadcasters of possibly similar
experience and qualification as complainant belies respondents claim of
independent contractorship."
SONZA rescinded the Agreement or resigned from work does not determine
his status as employee or independent contractor.
D. Power of Control
Since there is no local precedent on whether a radio and television program
host is an employee or an independent contractor, we refer to foreign case law
in analyzing the present case. The United States Court of Appeals, First
Circuit, recently held in Alberty-Vlez v. Corporacin De Puerto Rico Para
La Difusin Pblica ("WIPR")27 that a television program host is an
independent contractor. We quote the following findings of the U.S. court:
Several factors favor classifying Alberty as an independent
contractor. First, a television actress is a skilled position requiring
talent and training not available on-the-job. x x x In this regard,
Alberty possesses a masters degree in public communications and
journalism; is trained in dance, singing, and modeling; taught with the
drama department at the University of Puerto Rico; and acted in several
theater and television productions prior to her affiliation with "Desde Mi
Pueblo." Second, Alberty provided the "tools and instrumentalities"
necessary for her to perform. Specifically, she provided, or obtained
sponsors to provide, the costumes, jewelry, and other image-related
supplies and services necessary for her appearance. Alberty disputes
that this factor favors independent contractor status because WIPR
provided the "equipment necessary to tape the show." Albertys
argument is misplaced. The equipment necessary for Alberty to conduct
her job as host of "Desde Mi Pueblo" related to her appearance on the
show. Others provided equipment for filming and producing the show,
but these were not the primary tools that Alberty used to perform her
particular function. If we accepted this argument, independent
contractors could never work on collaborative projects because other
individuals often provide the equipment required for different aspects of
the collaboration. x x x
Third, WIPR could not assign Alberty work in addition to filming
"Desde Mi Pueblo." Albertys contracts with WIPR specifically provided
that WIPR hired her "professional services as Hostess for the Program
Desde Mi Pueblo." There is no evidence that WIPR assigned Alberty
tasks in addition to work related to these tapings. x x x28 (Emphasis
supplied)
Applying the control test to the present case, we find that SONZA is not an
employee but an independent contractor. The control test is the most
important test our courts apply in distinguishing an employee from an
independent contractor.29 This test is based on the extent of control the hirer
exercises over a worker. The greater the supervision and control the hirer
exercises, the more likely the worker is deemed an employee. The converse
holds true as well the less control the hirer exercises, the more likely the
worker is considered an independent contractor.30
First, SONZA contends that ABS-CBN exercised control over the means and
methods of his work.
SONZAs argument is misplaced. ABS-CBN engaged SONZAs services
specifically to co-host the "Mel & Jay" programs. ABS-CBN did not assign any
other work to SONZA. To perform his work, SONZA only needed his skills and
talent. How SONZA delivered his lines, appeared on television, and sounded
on radio were outside ABS-CBNs control. SONZA did not have to render eight
hours of work per day. The Agreement required SONZA to attend only
rehearsals and tapings of the shows, as well as pre- and post-production staff
meetings.31 ABS-CBN could not dictate the contents of SONZAs script.
However, the Agreement prohibited SONZA from criticizing in his shows ABSCBN or its interests.32 The clear implication is that SONZA had a free hand on
what to say or discuss in his shows provided he did not attack ABS-CBN or its
interests.
We find that ABS-CBN was not involved in the actual performance that
produced the finished product of SONZAs work.33 ABS-CBN did not instruct
SONZA how to perform his job. ABS-CBN merely reserved the right to modify
the program format and airtime schedule "for more effective
programming."34 ABS-CBNs sole concern was the quality of the shows and
their standing in the ratings. Clearly, ABS-CBN did not exercise control over
the means and methods of performance of SONZAs work.
SONZA claims that ABS-CBNs power not to broadcast his shows proves
ABS-CBNs power over the means and methods of the performance of his
work. Although ABS-CBN did have the option not to broadcast SONZAs
show, ABS-CBN was still obligated to pay SONZAs talent fees... Thus, even if
ABS-CBN was completely dissatisfied with the means and methods of
SONZAs performance of his work, or even with the quality or product of his
work, ABS-CBN could not dismiss or even discipline SONZA. All that ABSCBN could do is not to broadcast SONZAs show but ABS-CBN must still pay
his talent fees in full.35
Clearly, ABS-CBNs right not to broadcast SONZAs show, burdened as it was
by the obligation to continue paying in full SONZAs talent fees, did not
amount to control over the means and methods of the performance of
SONZAs work. ABS-CBN could not terminate or discipline SONZA even if the
means and methods of performance of his work - how he delivered his lines
and appeared on television - did not meet ABS-CBNs approval. This proves
that ABS-CBNs control was limited only to the result of SONZAs work,
whether to broadcast the final product or not. In either case, ABS-CBN must
still pay SONZAs talent fees in full until the expiry of the Agreement.
In Vaughan, et al. v. Warner, et al.,36 the United States Circuit Court of
Appeals ruled that vaudeville performers were independent contractors
although the management reserved the right to delete objectionable features
in their shows. Since the management did not have control over the manner of
performance of the skills of the artists, it could only control the result of the
work by deleting objectionable features.37
SONZA further contends that ABS-CBN exercised control over his work by
supplying all equipment and crew. No doubt, ABS-CBN supplied the
equipment, crew and airtime needed to broadcast the "Mel & Jay" programs.
However, the equipment, crew and airtime are not the "tools and
instrumentalities" SONZA needed to perform his job. What SONZA principally
needed were his talent or skills and the costumes necessary for his
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.
vs. 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.44
The Vaughan case also held that one could still be an independent contractor
although the hirer reserved certain supervision to insure the attainment of the
desired result. The hirer, however, must not deprive the one hired from
performing his services according to his own initiative. 45
Lastly, SONZA insists that the "exclusivity clause" in the Agreement is the
most extreme form of control which ABS-CBN exercised over him.
This argument is futile. Being an exclusive talent does not by itself mean that
SONZA is an employee of ABS-CBN. Even an independent contractor can
validly provide his services exclusively to the hiring party. In the broadcast
industry, exclusivity is not necessarily the same as control.
The hiring of exclusive talents is a widespread and accepted practice in the
entertainment industry.46 This practice is not designed to control the means
and methods of work of the talent, but simply to protect the investment of the
broadcast station. The broadcast station normally spends substantial amounts
of money, time and effort "in building up its talents as well as the programs
they appear in and thus expects that said talents remain exclusive with the
station for a commensurate period of time."47 Normally, a much higher fee is
paid to talents who agree to work exclusively for a particular radio or television
station. In short, the huge talent fees partially compensates for exclusivity, as
in the present case.
MJMDC as Agent of SONZA
SONZA protests the Labor Arbiters finding that he is a talent of MJMDC,
which contracted out his services to ABS-CBN. The Labor Arbiter ruled that as
a talent of MJMDC, SONZA is not an employee of ABS-CBN. SONZA insists
that MJMDC is a "labor-only" contractor and ABS-CBN is his employer.
In a labor-only contract, there are three parties involved: (1) the "labor-only"
contractor; (2) the employee who is ostensibly under the employ of the "laboronly" contractor; and (3) the principal who is deemed the real employer. Under
this scheme, the "labor-only" contractor is the agent of the principal. The
law makes the principal responsible to the employees of the "labor-only
contractor" as if the principal itself directly hired or employed the
employees.48 These circumstances are not present in this case.
There are essentially only two parties involved under the Agreement, namely,
SONZA and ABS-CBN. MJMDC merely acted as SONZAs agent. The
Agreement expressly states that MJMDC acted as the "AGENT" of SONZA.
The records do not show that MJMDC acted as ABS-CBNs agent. MJMDC,
which stands for Mel and Jay Management and Development Corporation, is a
corporation organized and owned by SONZA and TIANGCO. The President
and General Manager of MJMDC is SONZA himself. It is absurd to hold that
MJMDC, which is owned, controlled, headed and managed by SONZA, acted
as agent of ABS-CBN in entering into the Agreement with SONZA, who
himself is represented by MJMDC. That would make MJMDC the agent of
both ABS-CBN and SONZA.
As SONZA admits, MJMDC is a management company
devoted exclusively to managing the careers of SONZA and his broadcast
partner, TIANGCO. MJMDC is not engaged in any other business, not even
job contracting. MJMDC does not have any other function apart from acting as
agent of SONZA or TIANGCO to promote their careers in the broadcast and
television industry.49
including the affidavits of their respective witnesses which shall take the
place of the latters direct testimony. x x x
Section 4. Determination of Necessity of Hearing. Immediately after the
submission of the parties of their position papers/memorandum, the
Labor Arbiter shall motu propio determine whether there is need for a
formal trial or hearing. At this stage, he may, at his discretion and for the
purpose of making such determination, ask clarificatory questions to
further elicit facts or information, including but not limited to the
subpoena of relevant documentary evidence, if any from any party or
witness.50
The Labor Arbiter can decide a case based solely on the position papers and
the supporting documents without a formal trial.51 The holding of a formal
hearing or trial is something that the parties cannot demand as a matter of
right.52 If the Labor Arbiter is confident that he can rely on the documents
before him, he cannot be faulted for not conducting a formal trial, unless under
the particular circumstances of the case, the documents alone are insufficient.
The proceedings before a Labor Arbiter are non-litigious in nature. Subject to
the requirements of due process, the technicalities of law and the rules
obtaining in the courts of law do not strictly apply in proceedings before a
Labor Arbiter.
Talents as Independent Contractors
ABS-CBN claims that there exists a prevailing practice in the broadcast and
entertainment industries to treat talents like SONZA as independent
contractors. SONZA argues that if such practice exists, it is void for violating
the right of labor to security of tenure.
The right of labor to security of tenure as guaranteed in the
Constitution53 arises only if there is an employer-employee relationship under
labor laws. Not every performance of services for a fee creates an employeremployee relationship. To hold that every person who renders services to
another for a fee is an employee - to give meaning to the security of tenure
clause - will lead to absurd results.
Individuals with special skills, expertise or talent enjoy the freedom to offer
their services as independent contractors. The right to life and livelihood
guarantees this freedom to contract as independent contractors. The right of
labor to security of tenure cannot operate to deprive an individual, possessed
with special skills, expertise and talent, of his right to contract as an
independent contractor. An individual like an artist or talent has a right to
render his services without any one controlling the means and methods by
which he performs his art or craft. This Court will not interpret the right of labor
to security of tenure to compel artists and talents to render their services only
as employees. If radio and television program hosts can render their services
only as employees, the station owners and managers can dictate to the radio
and television hosts what they say in their shows. This is not conducive to
freedom of the press.
Different Tax Treatment of Talents and Broadcasters
The National Internal Revenue Code ("NIRC")54 in relation to Republic Act No.
7716,55 as amended by Republic Act No. 8241,56 treats talents, television and
radio broadcasters differently. Under the NIRC, these professionals are
subject to the 10% value-added tax ("VAT") on services they render.
Exempted from the VAT are those under an employer-employee
relationship.57 This different tax treatment accorded to talents and
broadcasters bolters our conclusion that they are independent contractors,
provided all the basic elements of a contractual relationship are present as in
this case.
Nature of SONZAs Claims
SONZA seeks the recovery of allegedly unpaid talent fees, 13th month pay,
separation pay, service incentive leave, signing bonus, travel allowance, and
amounts due under the Employee Stock Option Plan. We agree with the
findings of the Labor Arbiter and the Court of Appeals that SONZAs claims
are all based on the May 1994 Agreement and stock option plan, and not
on the Labor Code. Clearly, the present case does not call for an application
of the Labor Code provisions but an interpretation and implementation of the
SECOND DIVISION
ANGELITO L. LAZARO, G.R. No. 138254
Proprietor of Royal Star
Marketing, Present:
Petitioner,
PUNO,
Chairman,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO,
SOCIAL SECURITY COMMISSION, Members. ROSALINA LAUDATO, SOCIAL
SECURITY SYSTEM and THE
HONORABLE COURT OF
APPEALS,
Respondents. Promulgated:
July 30, 2004
x-------------------------------------x
DECISION
TINGA, J.:
Before us is a Petition for Review under Rule 45, assailing the Decision[1] of
the Court of Appeals Fifteenth Division[2] in CA-G.R. Sp. No. 40956,
promulgated on 20 November 1998, which affirmed two rulings of the
Lazaros Motion
for
Reconsideration before
the
SSC
was
denied,[9] Lazaro filed a Petition for Review with the Court of Appeals. Lazaro
reiterated that Laudato was merely a sales agent who was paid purely on
commission basis, not included in the company payroll, and who neither
observed regular working hours nor accomplished time cards.
In its assailed Decision, the Court of Appeals noted that Lazaros arguments
were a reprise of those already presented before the SSC.[10] Moreover,
Lazaro had not come forward with particulars and specifics in his petition
to show that the Commissions ruling is not supported by substantial
evidence.[11] Thus, the appellate court affirmed the finding that Laudato was
an employee of Royal Star, and hence entitled to coverage under the Social
Security Law.
Before this Court, Lazaro again insists that Laudato was not qualified for
social security coverage, as she was not an employee of Royal Star, her
income dependent on a generation of sales and based on commissions.[12] It
is argued that Royal Star had no control over Laudatos activities, and that
under the so-called control test, Laudato could not be deemed an
employee.[13]
accords
great
weight
to
the
factual
arguments
may
be
dispensed
with
by
applying
precedents. Suffice it to say, the fact that Laudato was paid by way of
commission does not preclude the establishment of an employer-employee
relationship. In Grepalife v. Judico,[17] the Court upheld the existence of an
employer-employee relationship between the insurance company and its
agents, despite the fact that the compensation that the agents on
commission received was not paid by the company but by the investor or
the person insured.[18] The relevant factor remains, as stated earlier,
whether the "employer" controls or has reserved the right to control the
"employee" not only as to the result of the work to be done but also as to
the means and methods by which the same is to be accomplished. [19]
Neither does it follow that a person who does not observe normal hours of
work cannot be deemed an employee. In Cosmopolitan Funeral Homes, Inc.
v. Maalat,[20] the employer similarly denied the existence of an employeremployee relationship, as the claimant according to it, was a supervisor on
commission basis who did not observe normal hours of work. This Court
declared that there was an employer-employee relationship, noting that
[the] supervisor, although compensated on commission basis, [is] exempt
finding
of
the
SSC
that
Laudato
was
an
evidence. The SSC examined the cash vouchers issued by Royal Star to
Laudato,[23] calling cards of Royal Star denominating Laudato as a Sales
Supervisor of the company,[24] and Certificates of Appreciation issued by
Royal Star to Laudato in recognition of her unselfish and loyal efforts in
promoting the company.[25] On the other hand, Lazaro has failed to present
any convincing contrary evidence, relying instead on his bare assertions.
The Court of Appeals correctly ruled that petitioner has not sufficiently
shown that the SSCs ruling was not supported by substantial evidence.
A piece of documentary evidence appreciated by the SSC is
Memorandum dated 3 May 1980 of Teresita Lazaro, General Manager of
Royal Star, directing that no commissions were to be given on all main
office sales from walk-in customers and enjoining salesmen and sales
supervisors to observe this new policy.[26] The Memorandum evinces the fact
that, contrary to Lazaros claim, Royal Star exercised control over its sales
supervisors or agents such as Laudato as to the means and methods
through which these personnel performed their work.
Finally, Lazaro invokes our ruling in the 1987 case of Social Security
System v. Court of Appeals[27] that a person who works for another at his
own pleasure, subject to definite hours or conditions of work, and is
compensated according to the result of his effort is not an employee. [28] The
citation is odd for Lazaro to rely upon, considering that in the cited case,
the Court affirmed the employee-employer relationship between a sales
agent and the cigarette firm whose products he sold.[29] Perhaps Lazaro
meant instead to cite our 1969 ruling in the similarly-titled case of Social
Security System v. Court of Appeals,[30] also cited in the later eponymous
ruling, whose disposition is more in accord with Lazaros argument.
Yet, the circumstances in the 1969 case are very different from those
at bar. Ruling on the question whether jockeys were considered employees
of the Manila Jockey Club, the Court noted that the jockeys were actually
subjected to the control of the racing steward, whose authority in turn was
defined by the Games and Amusements Board.[31] Moreover, the jockeys
choice as to which horse to mount was subject to mutual agreement
between the horse owner and the jockey, and beyond the control of the race
club.[32] In the case at bar, there is no showing that Royal Star was similarly
precluded from exerting control or interference over the manner by which
Laudato performed her duties. On the contrary, substantial evidence as
found by the SSC and the Court of Appeals have established the element of
control determinative of an employer-employee relationship. We affirm
without hesitation.
WE CONCUR:
REYNATO S. PUNO
Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
ATTESTATION
REYNATO S. PUNO
Associate Justice
CERTIFICATION
Before us is this appeal by way of a petition for review on certiorari from the 12
September 2002 Decision and the 13 February 2003 Resolution of the Court of
Appeals in CA-G.R. SP No. 65178, upholding the finding of illegal dismissal by the
National Labor Relations Commission against petitioner.
[1]
[2]
[5]
The turning point in the parties relationship surfaced in December 1996 when
Philcom, thru a letter bearing on the subject boldly written as TERMINATION
RETAINERSHIP CONTRACT, informed De Vera of its decision to discontinue the
latters retainers contract with the Company effective at the close of business hours of
December 31, 1996 because management has decided that it would be more practical
to provide medical services to its employees through accredited hospitals near the
company premises.
[6]
On 22 January 1997, De Vera filed a complaint for illegal dismissal before the
National Labor Relations Commission (NLRC), alleging that that he had been actually
employed by Philcom as its company physician since 1981 and was dismissed without
due process. He averred that he was designated as a company physician on retainer
basis for reasons allegedly known only to Philcom. He likewise professed that since he
was not conversant with labor laws, he did not give much attention to the designation
as anyway he worked on a full-time basis and was paid a basic monthly salary plus
fringe benefits, like any other regular employees of Philcom.
On 21 December 1998, Labor Arbiter Ramon Valentin C. Reyes came out with a
decision dismissing De Veras complaint for lack of merit, on the rationale that as a
retained physician under a valid contract mutually agreed upon by the parties, De Vera
was an independent contractor and that he was not dismissed but rather his contract
with [PHILCOM] ended when said contract was not renewed after December 31, 1996.
[7]
On De Veras appeal to the NLRC, the latter, in a decision dated 23 October 2000,
reversed (the word used is modified) that of the Labor Arbiter, on a finding that De Vera
is Philcoms regular employee and accordingly directed the company to reinstate him to
his former position without loss of seniority rights and privileges and with full
backwages from the date of his dismissal until actual reinstatement. We quote the
dispositive portion of the decision:
[8]
Backwages:
a) Basic Salary
From Dec. 31, 1996 to Apr. 10, 2000 = 39.33 mos.
P44,400.00 x 39.33 mos. P1,750,185.00
b) 13th Month Pay:
1/12 of P1,750,185.00 145,848.75
c) Travelling allowance:
P1,000.00 x 39.33 mos. 39,330.00
GRAND TOTAL P1,935,363.75
The decision stands in other aspects.
SO ORDERED.
With its motion for reconsideration having been denied by the NLRC in its order of
27 February 2001, Philcom then went to the Court of Appeals on a petition
for certiorari, thereat docketed as CA-G.R. SP No. 65178, imputing grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the NLRC when it
reversed the findings of the labor arbiter and awarded thirteenth month pay and
traveling allowance to De Vera even as such award had no basis in fact and in law.
[9]
As we see it, the parties respective submissions revolve on the primordial issue of
whether an employer-employee relationship exists between petitioner and respondent,
the existence of which is, in itself, a question of fact well within the province of the
NLRC. Nonetheless, given the reality that the NLRCs findings are at odds with those of
the labor arbiter, the Court, consistent with its ruling in Jimenez vs. National Labor
Relations Commission, is constrained to look deeper into the attendant circumstances
obtaining in this case, as appearing on record.
[13]
[14]
In a long line of decisions, the Court, in determining the existence of an employeremployee relationship, has invariably adhered to the four-fold test, to wit: [1] the
selection and engagement of the employee; [2] the payment of wages; [3] the power of
dismissal; and [4] the power to control the employees conduct, or the so-called control
test, considered to be the most important element.
[15]
Applying the four-fold test to this case, we initially find that it was respondent
himself who sets the parameters of what his duties would be in offering his services to
petitioner. This is borne by no less than his 15 May 1981 letter which, in full, reads:
[16]
On the subject of compensation for the services that I propose to render to the corporation, you
may state an offer based on your belief that I can very well qualify for the job having worked
with your organization for sometime now.
I shall be very grateful for whatever kind attention you may extend on this matter and hoping
that it will merit acceptance, I remain
Very truly yours,
(signed)
RICARDO V. DE VERA, M.D.
Significantly, the foregoing letter was substantially the basis of the labor arbiters
finding that there existed no employer-employee relationship between petitioner and
respondent, in addition to the following factual settings:
The fact that the complainant was not considered an employee was recognized by the
complainant himself in a signed letter to the respondent dated April 21, 1982 attached as Annex
G to the respondents Reply and Rejoinder. Quoting the pertinent portion of said letter:
To carry out your memo effectively and to provide a systematic and workable time schedule
which will serve the best interests of both the present and absent employee, may I propose an
extended two-hour service (1:00-3:00 P.M.) during which period I can devote ample time to
both groups depending upon the urgency of the situation. I shall readjust my private schedule to
be available for the herein proposed extended hours, should you consider this proposal.
As regards compensation for the additional time and services that I shall render to the
employees, it is dependent on your evaluation of the merit of my proposal and your confidence
on my ability to carry out efficiently said proposal.
The tenor of this letter indicates that the complainant was proposing to extend his time with the
respondent and seeking additional compensation for said extension. This shows that the
respondent PHILCOM did not have control over the schedule of the complainant as it [is] the
complainant who is proposing his own schedule and asking to be paid for the same. This is
proof that the complainant understood that his relationship with the respondent PHILCOM was
a retained physician and not as an employee. If he were an employee he could not negotiate as
to his hours of work.
The complainant is a Doctor of Medicine, and presumably, a well-educated person. Yet, the
complainant, in his position paper, is claiming that he is not conversant with the law and did not
give much attention to his job title- on a retainer basis. But the same complainant admits in his
affidavit that his service for the respondent was covered by a retainership contract [which] was
renewed every year from 1982 to 1994. Upon reading the contract dated September 6, 1982,
signed by the complainant himself (Annex C of Respondents Position Paper), it clearly states
that is a retainership contract. The retainer fee is indicated thereon and the duration of the
contract for one year is also clearly indicated in paragraph 5 of the Retainership Contract. The
complainant cannot claim that he was unaware that the contract was good only for one year, as
he signed the same without any objections. The complainant also accepted its renewal every
year thereafter until 1994. As a literate person and educated person, the complainant cannot
claim that he does not know what contract he signed and that it was renewed on a year to year
basis.
[17]
The labor arbiter added the indicia, not disputed by respondent, that from the time
he started to work with petitioner, he never was included in its payroll; was never
deducted any contribution for remittance to the Social Security System (SSS); and was
in fact subjected by petitioner to the ten (10%) percent withholding tax for his
professional fee, in accordance with the National Internal Revenue Code, matters
which are simply inconsistent with an employer-employee relationship. In the precise
words of the labor arbiter:
xxx xxx xxx After more than ten years of services to PHILCOM, the complainant would have
noticed that no SSS deductions were made on his remuneration or that the respondent was
deducting the 10% tax for his fees and he surely would have complained about them if he had
considered himself an employee of PHILCOM. But he never raised those issues. An ordinary
employee would consider the SSS payments important and thus make sure they would be paid.
The complainant never bothered to ask the respondent to remit his SSS contributions. This
clearly shows that the complainant never considered himself an employee of PHILCOM and
thus, respondent need not remit anything to the SSS in favor of the complainant.
[18]
We note, too, that the power to terminate the parties relationship was mutually
vested on both. Either may terminate the arrangement at will, with or without cause.
[20]
Finally, remarkably absent from the parties arrangement is the element of control,
whereby the employer has reserved the right to control the employee not only as to the
result of the work done but also as to the means and methods by which the same is to
be accomplished.
[21]
Here, petitioner had no control over the means and methods by which respondent
went about performing his work at the company premises. He could even embark in
the private practice of his profession, not to mention the fact that respondents work
hours and the additional compensation therefor were negotiated upon by the
parties. In fine, the parties themselves practically agreed on every terms and
conditions of respondents engagement, which thereby negates the element of control
in their relationship. For sure, respondent has never cited even a single instance when
petitioner interfered with his work.
[22]
Yet, despite the foregoing, all of which are extant on record, both the NLRC and the
Court of Appeals ruled that respondent is petitioners regular employee at the time of
his separation.
Partly says the appellate court in its assailed decision:
Be that as it may, it is admitted that private respondents written retainer contract was renewed
annually from 1981 to 1994 and the alleged renewal for 1995 and 1996, when it was allegedly
terminated, was verbal.
Article 280 of the Labor code (sic) provides:
The provisions of written agreement to the contrary notwithstanding and regardless of the
oral agreements of the parties, an employment shall be deemed to be regular where the
employee has been engaged to perform in the usual business or trade of the employer, except
where the employment has been fixed for a specific project or undertaking the completion or
termination of which has been determined at the time of the engagement of the employee or
where the work or services to be performed is seasonal in nature and the employment is for the
duration of the season.
An employment shall be deemed to be casual if it is not covered by the preceding
paragraph: Provided, That, any employee who has rendered at least one (1) year of
service, whether such is continuous or broken, shall be considered a regular with respect to
the activity in which he is employed and his employment shall continue while such activity
exists.
Parenthetically, the position of company physician, in the case of petitioner, is usually necessary
and desirable because the need for medical attention of employees cannot be foreseen, hence, it
is necessary to have a physician at hand. In fact, the importance and desirability of a physician
in a company premises is recognized by Art. 157 of the Labor Code, which requires the
presence of a physician depending on the number of employees and in the case at bench, in
petitioners case, as found by public respondent, petitioner employs more than 500 employees.
Going back to Art. 280 of the Labor Code, it was made therein clear that the provisions of a
written agreement to the contrary notwithstanding or the existence of a mere oral agreement, if
the employee is engaged in the usual business or trade of the employer, more so, that he
rendered service for at least one year, such employee shall be considered as
a regular employee. Private respondent herein has been with petitioner since 1981 and his
employment was not for a specific project or undertaking, the period of which was predetermined and neither the work or service of private respondent seasonal. (Emphasis by the
CA itself).
We disagree to the foregoing ratiocination.
The appellate courts premise that regular employees are those who perform
activities which are desirable and necessary for the business of the employer is not
determinative in this case. 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. It does not apply where, as here, the very existence of an employment
relationship is in dispute.
[23]
(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.
Had only respondent read carefully the very statutory provision invoked by him, he
would have noticed that in non-hazardous workplaces, the employer may engage the
services of a physician on retained basis. As correctly observed by the petitioner, 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.
[24]
[25]
may be engaged on retained basis, revolts against the idea that this engagement gives
rise to an employer-employee relationship.
With the recognition of the fact that petitioner consistently engaged the services of
respondent on a retainer basis, as shown by their various retainership contracts, so
can petitioner put an end, with or without cause, to their retainership agreement as
therein provided.
[27]
We note, however, that even as the contracts entered into by the parties invariably
provide for a 60-day notice requirement prior to termination, the same was not
complied with by petitioner when it terminated on 17 December 1996 the verballyrenewed retainership agreement, effective at the close of business hours of 31
December 1996.
Be that as it may, the record shows, and this is admitted by both parties, that
execution of the NLRC decision had already been made at the NLRC despite the
pendency of the present recourse. For sure, accounts of petitioner had already been
garnished and released to respondent despite the previous Status Quo Order issued
by this Court. To all intents and purposes, therefore, the 60-day notice requirement has
become moot and academic if not waived by the respondent himself.
[28]
[29]
WHEREFORE, the petition is GRANTED and the challenged decision of the Court
of Appeals REVERSED and SET ASIDE. The 21 December 1998 decision of the labor
arbiter is REINSTATED.
No pronouncement as to costs.
SO ORDERED.
Panganiban, (Chairman), Corona, and Carpio-Morales, JJ., concur.
Sandoval-Gutierrez, J., on official leave.
The PAs were under the control and supervision of Assistant Station Manager
Dante J. Luzon, and News Manager Leo Lastimosa.
On December 19, 1996, petitioner and the ABS-CBN Rank-and-File
Employees executed a Collective Bargaining Agreement (CBA) to be effective
during the period from December 11, 1996 to December 11, 1999. However,
since petitioner refused to recognize PAs as part of the bargaining unit,
respondents were not included to the CBA.6
On July 20, 2000, petitioner, through Dante Luzon, issued a Memorandum
informing the PAs that effective August 1, 2000, they would be assigned to
non-drama programs, and that the DYAB studio operations would be handled
by the studio technician. Thus, their revised schedule and other assignments
would be as follows:
Monday Saturday
4:30 A.M. 8:00 A.M. Marlene Nazareno.
Miss Nazareno will then be assigned at the Research Dept.
From 8:00 A.M. to 12:00
4:30 P.M. 12:00 MN Jennifer Deiparine
Sunday
5:00 A.M. 1:00 P.M. Jennifer Deiparine
1:00 P.M. 10:00 P.M. Joy Sanchez
Respondent Gerzon was assigned as the full-time PA of the TV News
Department reporting directly to Leo Lastimosa.
On October 12, 2000, respondents filed a Complaint for Recognition of
Regular Employment Status, Underpayment of Overtime Pay, Holiday Pay,
Premium Pay, Service Incentive Pay, Sick Leave Pay, and 13th Month Pay
with Damages against the petitioner before the NLRC. The Labor Arbiter
Exhibit "D"
Exhibit "D-1" &
Exhibit "D-2" - ABS-CBN Salary Voucher from March
1999 to January 2001 at P4,000.00
Date employed: September 1, 1995
Length of service: 5 years & 10 months
III. Marlene Nazareno
Exhibit "E" - ABS-CBN Employees Identification Card
Exhibit "E" - ABS-CBN Salary Voucher from Nov.
Exhibit "E-1" & 1999 to December 2000
Exhibit :E-2"
Date employed: April 17, 1996
Length of service: 5 years and one (1) month
IV. Joy Sanchez Lerasan
Exhibit "F" - ABS-CBN Employees Identification Card
Exhibit "F-1" - ABS-CBN Salary Voucher from Aug.
Exhibit "F-2" & 2000 to Jan. 2001
Exhibit "F-3"
Exhibit "F-4" - Certification dated July 6, 2000
Acknowledging regular status of
Petitioner thus filed a petition for certiorari under Rule 65 of the Rules of Court
before the CA, raising both procedural and substantive issues, as follows: (a)
whether the NLRC acted without jurisdiction in admitting the appeal of
respondents; (b) whether the NLRC committed palpable error in scrutinizing
the reopening and revival of the complaint of respondents with the Labor
Arbiter upon due notice despite the lapse of 10 days from their receipt of the
July 30, 2001 Order of the Labor Arbiter; (c) whether respondents were
regular employees; (d) whether the NLRC acted without jurisdiction in
entertaining and resolving the claim of the respondents under the CBA instead
of referring the same to the Voluntary Arbitrators as provided in the CBA; and
(e) whether the NLRC acted with grave abuse of discretion when it awarded
monetary benefits to respondents under the CBA although they are not
members of the appropriate bargaining unit.
On February 10, 2004, the CA rendered judgment dismissing the petition. It
held that the perfection of an appeal shall be upon the expiration of the last
day to appeal by all parties, should there be several parties to a case. Since
respondents received their copies of the decision on September 8, 2001
(except respondent Nazareno who received her copy of the decision on
August 27, 2001), they had until September 18, 2001 within which to file their
Appeal Memorandum. Moreover, the CA declared that respondents failure to
submit their position paper on time is not a ground to strike out the paper from
the records, much less dismiss a complaint.
Anent the substantive issues, the appellate court stated that respondents are
not mere project employees, but regular employees who perform tasks
necessary and desirable in the usual trade and business of petitioner and not
just its project employees. Moreover, the CA added, the award of benefits
accorded to rank-and-file employees under the 1996-1999 CBA is a necessary
consequence of the NLRC ruling that respondents, as PAs, are regular
employees.
Finding no merit in petitioners motion for reconsideration, the CA denied the
same in a Resolution17 dated June 16, 2004.
Petitioner thus filed the instant petition for review on certiorari and raises the
following assignments of error:
1. THE HONORABLE COURT OF APPEALS ACTED WITHOUT
JURISDICTION AND GRAVELY ERRED IN UPHOLDING THE NATIONAL
LABOR RELATIONS COMMISSION NOTWITHSTANDING THE PATENT
NULLITY OF THE LATTERS DECISION AND RESOLUTION.
2. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
AFFIRMING THE RULING OF THE NLRC FINDING RESPONDENTS
REGULAR EMPLOYEES.
3. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
AFFIRMING THE RULING OF THE NLRC AWARDING CBA BENEFITS TO
RESPONDENTS.18
Considering that the assignments of error are interrelated, the Court shall
resolve them simultaneously.
Petitioner asserts that the appellate court committed palpable and serious
error of law when it affirmed the rulings of the NLRC, and entertained
respondents appeal from the decision of the Labor Arbiter despite the
admitted lapse of the reglementary period within which to perfect the same.
Petitioner likewise maintains that the 10-day period to appeal must be
reckoned from receipt of a partys counsel, not from the time the party learns
of the decision, that is, notice to counsel is notice to party and not the other
way around. Finally, petitioner argues that the reopening of a complaint which
the Labor Arbiter has dismissed without prejudice is a clear violation of
Section 1, Rule V of the NLRC Rules; such order of dismissal had already
attained finality and can no longer be set aside.
Respondents, on the other hand, allege that their late appeal is a non-issue
because it was petitioners own timely appeal that empowered the NLRC to
reopen the case. They assert that although the appeal was filed 10 days late,
it may still be given due course in the interest of substantial justice as an
exception to the general rule that the negligence of a counsel binds the client.
On the issue of the late filing of their position paper, they maintain that this is
not a ground to strike it out from the records or dismiss the complaint.
We find no merit in the petition.
We agree with petitioners contention that the perfection of an appeal within
the statutory or reglementary period is not only mandatory, but also
jurisdictional; failure to do so renders the assailed decision final and executory
and deprives the appellate court or body of the legal authority to alter the final
judgment, much less entertain the appeal. However, this Court has time and
again ruled that in exceptional cases, a belated appeal may be given due
course if greater injustice may occur if an appeal is not given due course than
if the reglementary period to appeal were strictly followed. 19 The Court
resorted to this extraordinary measure even at the expense of sacrificing order
and efficiency if only to serve the greater principles of substantial justice and
equity.20
In the case at bar, the NLRC did not commit a grave abuse of its discretion in
giving Article 22321 of the Labor Code a liberal application to prevent the
miscarriage of justice. Technicality should not be allowed to stand in the way
of equitably and completely resolving the rights and obligations of the
parties.22 We have held in a catena of cases that technical rules are not
binding in labor cases and are not to be applied strictly if the result would be
detrimental to the workingman.23
Admittedly, respondents failed to perfect their appeal from the decision of the
Labor Arbiter within the reglementary period therefor. However, petitioner
perfected its appeal within the period, and since petitioner had filed a timely
appeal, the NLRC acquired jurisdiction over the case to give due course to its
appeal and render the decision of November 14, 2002. Case law is that the
party who failed to appeal from the decision of the Labor Arbiter to the NLRC
can still participate in a separate appeal timely filed by the adverse party as
the situation is considered to be of greater benefit to both parties.24
We find no merit in petitioners contention that the Labor Arbiter abused his
discretion when he admitted respondents position paper which had been
belatedly filed. It bears stressing that the Labor Arbiter is mandated by law to
use every reasonable means to ascertain the facts in each case speedily and
objectively, without technicalities of law or procedure, all in the interest of due
process.25 Indeed, as stressed by the appellate court, respondents failure to
submit a position paper on time is not a ground for striking out the paper from
the records, much less for dismissing a complaint. 26 Likewise, there is simply
no truth to petitioners assertion that it was denied due process when the
Labor Arbiter admitted respondents position paper without requiring it to file a
comment before admitting said position paper. The essence of due process in
administrative proceedings is simply an opportunity to explain ones side or an
opportunity to seek reconsideration of the action or ruling complained of.
Obviously, there is nothing in the records that would suggest that petitioner
had absolute lack of opportunity to be heard.27 Petitioner had the right to file a
motion for reconsideration of the Labor Arbiters admission of respondents
position paper, and even file a Reply thereto. In fact, petitioner filed its position
paper on April 2, 2001. It must be stressed that Article 280 of the Labor Code
was encoded in our statute books to hinder the circumvention by unscrupulous
employers of the employees right to security of tenure by indiscriminately and
absolutely ruling out all written and oral agreements inharmonious with the
concept of regular employment defined therein.28
We quote with approval the following pronouncement of the NLRC:
The complainants, on the other hand, contend that respondents assailed the
Labor Arbiters order dated 18 June 2001 as violative of the NLRC Rules of
Procedure and as such is violative of their right to procedural due process.
That while suggesting that an Order be instead issued by the Labor Arbiter for
complainants to refile this case, respondents impliedly submit that there is not
any substantial damage or prejudice upon the refiling, even so, respondents
suggestion acknowledges complainants right to prosecute this case, albeit
with the burden of repeating the same procedure, thus, entailing additional
time, efforts, litigation cost and precious time for the Arbiter to repeat the same
process twice. Respondents suggestion, betrays its notion of prolonging,
rather than promoting the early resolution of the case.
Although the Labor Arbiter in his Order dated 18 June 2001 which revived and
re-opened the dismissed case without prejudice beyond the ten (10) day
reglementary period had inadvertently failed to follow Section 16, Rule V,
Rules Procedure of the NLRC which states:
"A party may file a motion to revive or re-open a case dismissed without
prejudice within ten (10) calendar days from receipt of notice of the order
dismissing the same; otherwise, his only remedy shall be to re-file the case in
the arbitration branch of origin."
the same is not a serious flaw that had prejudiced the respondents right to
due process. The case can still be refiled because it has not yet prescribed.
Anyway, Article 221 of the Labor Code provides:
"In any proceedings before the Commission or any of the Labor Arbiters, the
rules of evidence prevailing in courts of law or equity shall not be controlling
and it is the spirit and intention of this Code that the Commission and its
members and the Labor Arbiters shall use every and all reasonable means to
ascertain the facts in each case speedily and objectively and without regard to
technicalities of law or procedure, all in the interest of due process."
The admission by the Labor Arbiter of the complainants Position Paper and
Supplemental Manifestation which were belatedly filed just only shows that he
acted within his discretion as he is enjoined by law to use every reasonable
means to ascertain the facts in each case speedily and objectively, without
regard to technicalities of law or procedure, all in the interest of due process.
Indeed, the failure to submit a position paper on time is not a ground for
striking out the paper from the records, much less for dismissing a complaint
in the case of the complainant. (University of Immaculate Conception vs. UIC
Teaching and Non-Teaching Personnel Employees, G.R. No. 144702, July 31,
2001).
"In admitting the respondents position paper albeit late, the Labor Arbiter
acted within her discretion. In fact, she is enjoined by law to use every
reasonable means to ascertain the facts in each case speedily and objectively,
selection and hiring of SONZA, because of his unique skills, talent and
celebrity status not possessed by ordinary employees, is a circumstance
indicative, but not conclusive, of an independent contractual relationship. If
SONZA did not possess such unique skills, talent and celebrity status, ABSCBN would not have entered into the Agreement with SONZA but would have
hired him through its personnel department just like any other employee.
In any event, the method of selecting and engaging SONZA does not
conclusively determine his status. We must consider all the circumstances of
the relationship, with the control test being the most important element.
B. Payment of Wages
ABS-CBN directly paid SONZA his monthly talent fees with no part of his fees
going to MJMDC. SONZA asserts that this mode of fee payment shows that
he was an employee of ABS-CBN. SONZA also points out that ABS-CBN
granted him benefits and privileges "which he would not have enjoyed if he
were truly the subject of a valid job contract."
All the talent fees and benefits paid to SONZA were the result of negotiations
that led to the Agreement. If SONZA were ABS-CBNs employee, there would
be no need for the parties to stipulate on benefits such as "SSS, Medicare, x x
x and 13th month pay which the law automatically incorporates into every
employer-employee contract. Whatever benefits SONZA enjoyed arose from
contract and not because of an employer-employee relationship.
SONZAs talent fees, amounting to P317,000 monthly in the second and third
year, are so huge and out of the ordinary that they indicate more an
independent contractual relationship rather than an employer-employee
relationship. ABS-CBN agreed to pay SONZA such huge talent fees precisely
because of SONZAS unique skills, talent and celebrity status not possessed
by ordinary employees. Obviously, SONZA acting alone possessed enough
bargaining power to demand and receive such huge talent fees for his
services. The power to bargain talent fees way above the salary scales of
ordinary employees is a circumstance indicative, but not conclusive, of an
independent contractual relationship.
The payment of talent fees directly to SONZA and not to MJMDC does not
negate the status of SONZA as an independent contractor. The parties
expressly agreed on such mode of payment. Under the Agreement, MJMDC is
the AGENT of SONZA, to whom MJMDC would have to turn over any talent
fee accruing under the Agreement.44
In the case at bar, however, the employer-employee relationship between
petitioner and respondents has been proven.
First. In the selection and engagement of respondents, no peculiar or unique
skill, talent or celebrity status was required from them because they were
merely hired through petitioners personnel department just like any ordinary
employee.
Second. The so-called "talent fees" of respondents correspond to wages given
as a result of an employer-employee relationship. Respondents did not have
the power to bargain for huge talent fees, a circumstance negating
independent contractual relationship.
Third. Petitioner could always discharge respondents should it find their work
unsatisfactory, and respondents are highly dependent on the petitioner for
continued work.
Fourth. The degree of control and supervision exercised by petitioner over
respondents through its supervisors negates the allegation that respondents
are independent contractors.
The presumption is that when the work done is an integral part of the regular
business of the employer and when the worker, relative to the employer, does
not furnish an independent business or professional service, such work is a
regular employment of such employee and not an independent
contractor.45 The Court will peruse beyond any such agreement to examine
the facts that typify the parties actual relationship. 46
It follows then that respondents are entitled to the benefits provided for in the
existing CBA between petitioner and its rank-and-file employees. As regular
employees, respondents are entitled to the benefits granted to all other regular
employees of petitioner under the CBA.47 We quote with approval the ruling of
the appellate court, that the reason why production assistants were excluded
from the CBA is precisely because they were erroneously classified and
treated as project employees by petitioner:
x x x The award in favor of private respondents of the benefits accorded to
rank-and-file employees of ABS-CBN under the 1996-1999 CBA is a
necessary consequence of public respondents ruling that private respondents
as production assistants of petitioner are regular employees. The monetary
award is not considered as claims involving the interpretation or
implementation of the collective bargaining agreement. The reason why
production assistants were excluded from the said agreement is precisely
because they were classified and treated as project employees by petitioner.
As earlier stated, it is not the will or word of the employer which determines
the nature of employment of an employee but the nature of the activities
performed by such employee in relation to the particular business or trade of
the employer. Considering that We have clearly found that private
respondents are regular employees of petitioner, their exclusion from the said
CBA on the misplaced belief of the parties to the said agreement that they are
project employees, is therefore not proper. Finding said private respondents
as regular employees and not as mere project employees, they must be
accorded the benefits due under the said Collective Bargaining Agreement.
A collective bargaining agreement is a contract entered into by the union
representing the employees and the employer. However, even the nonmember employees are entitled to the benefits of the contract. To accord its
benefits only to members of the union without any valid reason would
constitute undue discrimination against non-members. A collective bargaining
agreement is binding on all employees of the company. Therefore, whatever
benefits are given to the other employees of ABS-CBN must likewise be
accorded to private respondents who were regular employees of petitioner. 48
Besides, only talent-artists were excluded from the CBA and not production
assistants who are regular employees of the respondents. Moreover, under
Article 1702 of the New Civil Code: "In case of doubt, all labor legislation and
all labor contracts shall be construed in favor of the safety and decent living of
the laborer."
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.
The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP
No. 76582 are AFFIRMED. Costs against petitioner.
SO ORDERED.
Panganiban, C.J., Chairperson, Ynares-Santiago, Austria-Martinez, ChicoNazario, J.J., concur.
Although she was designated as Corporate Secretary, she was not entrusted
with the corporate documents; neither did she attend any board meeting nor
required to do so. She never prepared any legal document and never
represented the company as its Corporate Secretary. However, on some
occasions, she was prevailed upon to sign documentation for the company. 6
In 1996, petitioner was designated Acting Manager. The corporation also hired
Gerry Nino as accountant in lieu of petitioner. As Acting Manager, petitioner
was assigned to handle recruitment of all employees and perform
management administration functions; represent the company in all dealings
with government agencies, especially with the Bureau of Internal Revenue
(BIR), Social Security System (SSS) and in the city government of Makati; and
to administer all other matters pertaining to the operation of Kasei Restaurant
which is owned and operated by Kasei Corporation. 7
For five years, petitioner performed the duties of Acting Manager. As of
December 31, 2000 her salary was P27,500.00 plus P3,000.00 housing
allowance and a 10% share in the profit of Kasei Corporation. 8
In January 2001, petitioner was replaced by Liza R. Fuentes as Manager.
Petitioner alleged that she was required to sign a prepared resolution for her
replacement but she was assured that she would still be connected with Kasei
Corporation. Timoteo Acedo, the designated Treasurer, convened a meeting
of all employees of Kasei Corporation and announced that nothing had
changed and that petitioner was still connected with Kasei Corporation as
Technical Assistant to Seiji Kamura and in charge of all BIR matters. 9
Thereafter, Kasei Corporation reduced her salary by P2,500.00 a month
beginning January up to September 2001 for a total reduction of P22,500.00
as of September 2001. Petitioner was not paid her mid-year bonus allegedly
because the company was not earning well. On October 2001, petitioner did
not receive her salary from the company. She made repeated follow-ups with
the company cashier but she was advised that the company was not earning
well. 10
On October 15, 2001, petitioner asked for her salary from Acedo and the rest
of the officers but she was informed that she is no longer connected with the
company. 11
Since she was no longer paid her salary, petitioner did not report for work and
filed an action for constructive dismissal before the labor arbiter.
Private respondents averred that petitioner is not an employee of Kasei
Corporation. They alleged that petitioner was hired in 1995 as one of its
technical consultants on accounting matters and act concurrently as Corporate
Secretary. As technical consultant, petitioner performed her work at her own
discretion without control and supervision of Kasei Corporation. Petitioner had
no daily time record and she came to the office any time she wanted. The
company never interfered with her work except that from time to time, the
management would ask her opinion on matters relating to her profession.
Petitioner did not go through the usual procedure of selection of employees,
but her services were engaged through a Board Resolution designating her as
technical consultant. The money received by petitioner from the corporation
was her professional fee subject to the 10% expanded withholding tax on
professionals, and that she was not one of those reported to the BIR or SSS
as one of the companys employees. 12
Petitioners designation as technical consultant depended solely upon the will
of management. As such, her consultancy may be terminated any time
considering that her services were only temporary in nature and dependent on
the needs of the corporation.
To prove that petitioner was not an employee of the corporation, private
respondents submitted a list of employees for the years 1999 and 2000 duly
received by the BIR showing that petitioner was not among the employees
reported to the BIR, as well as a list of payees subject to expanded
withholding tax which included petitioner. SSS records were also submitted
showing that petitioners latest employer was Seiji Corporation. 13
The Labor Arbiter found that petitioner was illegally dismissed, thus:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
Considering the conflicting findings by the Labor Arbiter and the National
Labor Relations Commission on one hand, and the Court of Appeals on the
other, there is a need to reexamine the records to determine which of the
propositions espoused by the contending parties is supported by substantial
evidence. 17
We held in Sevilla v. Court of Appeals 18 that in this jurisdiction, there has been
no uniform test to determine the existence of an employer-employee relation.
Generally, courts have relied on the so-called right of control test where the
person for whom the services are performed reserves a right to control not
only the end to be achieved but also the means to be used in reaching such
end. In addition to the standard of right-of-control, the existing economic
conditions prevailing between the parties, like the inclusion of the employee in
the payrolls, can help in determining the existence of an employer-employee
relationship.
However, in certain cases the control test is not sufficient to give a complete
picture of the relationship between the parties, owing to the complexity of such
a relationship where several positions have been held by the worker. There
are instances when, aside from the employers power to control the employee
with respect to the means and methods by which the work is to be
accomplished, economic realities of the employment relations help provide a
comprehensive analysis of the true classification of the individual, whether as
employee, independent contractor, corporate officer or some other capacity.
The better approach would therefore be to adopt a two-tiered test involving:
(1) the putative employers power to control the employee with respect to the
means and methods by which the work is to be accomplished; and (2) the
underlying economic realities of the activity or relationship.
This two-tiered test would provide us with a framework of analysis, which
would take into consideration the totality of circumstances surrounding the true
nature of the relationship between the parties. This is especially appropriate in
this case where there is no written agreement or terms of reference to base
the relationship on; and due to the complexity of the relationship based on the
various positions and responsibilities given to the worker over the period of the
latters employment.
The control test initially found application in the case of Viaa v. Al-Lagadan
and Piga, 19 and lately in Leonardo v. Court of Appeals, 20 where we held that
there is an employer-employee relationship when the person for whom the
services are performed reserves the right to control not only the end achieved
but also the manner and means used to achieve that end.
In Sevilla v. Court of Appeals, 21 we observed the need to consider the existing
economic conditions prevailing between the parties, in addition to the standard
of right-of-control like the inclusion of the employee in the payrolls, to give a
clearer picture in determining the existence of an employer-employee
relationship based on an analysis of the totality of economic circumstances of
the worker.
Thus, the determination of the relationship between employer and employee
depends upon the circumstances of the whole economic activity, 22 such as:
(1) the extent to which the services performed are an integral part of the
employers business; (2) the extent of the workers investment in equipment
and facilities; (3) the nature and degree of control exercised by the employer;
(4) the workers opportunity for profit and loss; (5) the amount of initiative, skill,
judgment or foresight required for the success of the claimed independent
enterprise; (6) the permanency and duration of the relationship between the
worker and the employer; and (7) the degree of dependency of the worker
upon the employer for his continued employment in that line of business. 23
The proper standard of economic dependence is whether the worker is
dependent on the alleged employer for his continued employment in that line
of business. 24 In the United States, the touchstone of economic reality in
analyzing possible employment relationships for purposes of the Federal
Labor Standards Act is dependency. 25By analogy, the benchmark of
economic reality in analyzing possible employment relationships for purposes
of the Labor Code ought to be the economic dependence of the worker on his
employer.
MINITA V. CHICO-NAZARIO
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.
ARTEMIO V. PANGANIBAN
Chief Justice