July 25, 2016

Dear Mr. Lukas Tsuper,

This is in response to the inquiry that I have received from you. The following
are the facts I have gathered from you:
You were hired by Ms. Felix Okuda as taxi driver on July 2013. You
earned an average income from P500.00 to P800.00 per trip and that is
exclusive of the P889.00 boundary that you had to remit to Mr. Fokuda
daily. In the morning of May 4, 2016, there had been an altercation
between you and one of Mr. Fokudas drivers, this however was
pacified and settled right away. You were questioned by Mr. Okuda the
following day about the cause of the fight and your response made him
mad at you. This then led him to dismiss you from your job and even
challenged you to file a case against him. He based his contention on
the ground that there is no employer-employee relationship between
the two of you and that you are just a lessee of his taxi unit.
The main issue here is whether there exist an employer-employee
relationship between you and Mr. Fokuda and does it warrant your dismissal.
Also, in the latter part of this letter I will discuss to you as to whether you
should be entitled for the 13th month pay.
Under these facts, a court would likely apply the well-settled rule that drivers
who do not receive a fixed salary but get only the excess of the so-called
boundary they pay to the owner or operator, this is not sufficient to
withdraw the relationship between them from that of employer and
employee,
In Martinez v. National Relations Commission, relationship of taxi owners and
taxi drivers is the same as that between jeepney owners and jeepney drivers
under the "boundary system." In both cases, the employer-employee
relationship was deemed to exist viz:
"The relationship between jeepney owners/operators on one hand and
jeepney drivers on the other under the boundary system is that of
employer-employee and not of lessor-lessee. In the lease of chattels,

the lessor loses complete control over the chattel leased. In the case of
jeepney owners/operators and jeepney drivers, the former exercise
supervision and control over the latter. The fact that the drivers do not
receive fixed wages but get only the excess of that so-called boundary
they pay to the owner/operator is not sufficient to withdraw the
relationship between them from that of employer and employee. The
doctrine is applicable in the present case. Thus, private respondents
were employees. because they had been engaged to perform activities
which were usually necessary or desirable in the usual trade or
business of the employer."
His contention that you are only a lessee doesnt hold ground. This has
already been decided in a number of cases by the Supreme Court that the
relationship between jeepney owners/operators on one hand and jeepney
drivers on the other under the boundary system is that of employeremployee and not of lessor-lessee. In Martinez vs. NLRC, the High Court
explained that in the lease of chattels the lessor loses complete control over
the chattel leased although the lessee cannot be reckless in the use thereof,
otherwise he would be responsible for the damages to the lessor. In the case
of jeepney owners/operators and jeepney drivers, the former exercise
supervision and control over the latter.
Applying the above jurisprudence in your case, it is clear that your case
would stand under the same ruling. The control test is apparent in your case
as you were only performing work necessary and desirable in the business of
Mr. Fokuda.
On the underlying issue, whether you have been illegally dismissed, I am in
the opinion that, based on the facts gathered, you were not given the due
process required by law. In Conti v. National Labor Relations Commission, the
Court has consistently held that in the dismissal of employees, the twin
requirements of notice and hearing are essential elements of due process.
The employer must furnish the worker two written notices: [1] one to apprise
him of the particular acts or omissions for which his dismissal is sought; and
[2] the other to inform him of his employer's decision to dismiss him. As to
the requirement of a hearing, the essence of due process lies simply in an
opportunity to be heard, and not always and indispensably in an actual
hearing. None of these were present on your case.
Lastly, as to whether you are entitled for the 13th month pay, although the
employer-employee relationship will be duly proven, unfortunately, your
employer is not required to pay 13th month pay to their employees as stated

in Section 3(e) of the Implementing Rules and Regulations of Presidential

Decree No. 851.
I hope this is helpful, and would be happy to discuss this matter with you
further. Please feel free to call my office at (032) 261-8508 if you have
questions, or would like to set up a time to meet.