[G.R. No. L-8967. May 31, 1956.
] - In determining the existence of employer-employee relationship,
ANASTACIO VIAÑA
vs.
ALEJO AL-LAGADAN and FILOMENA PIGA
FACTS:
- Petitioner Anastacio Viaña owned a fishing sailboat which sunk in
the water and collided with the vessel of the U.S. Navy.
- Alejandro Al-Lagadan, a member of the crew of the fishing sailboat
disappeared with the craft.
- His parents, Respondent Alejo Al-Lagadan and Filomena Piga, filed
a claim for compensation under Act No. 3428.
- After appropriate proceedings, a Referee of the Workmen’s
Compensation Commission rendered a decision ordering Mr.
Anastacio Viaña to pay the above-named claimants.
- Said decision was, on petition for review filed by Viaña, affirmed by
the Workmen’s Compensation Commissioner.
- Viana filed a motion for reconsideration but was denied, hence the
present petition for review by certiorari, upon the ground that this
case does not fall within the purview of Act No. 3428, because the
gross income of his business for the year 1947 was allegedly less
than P10,000, and because Alejandro Al-Lagadan was, at the time
of his death, his (Petitioner’s) industrial partner, not his employee.
The contract commonly followed is on a share basis after deducting all
the expenses incurred on the voyage. One half goes to the owner of the batel
and the other half goes to the patron and the members of the crew and
divided among themselves on a share basis also in accordance with their
FACTS:
agreement with the patron getting the lion’s share. The hiring of the crew is
done by the patron himself. Usually, when a patron enters into a contract
with the owner of the batel, he has a crew ready with him.
ISSUE: Whether or not Al-lagadan is an employee of Viaña.
RULING:
the following elements are generally considered, namely: (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 — although the latter is the most important
element.
- In the interest of justice and equity, and considering that a decision
on the merits of the issue before us may establish an important
precedent, it would be better to remand the case to the Workmen’s
Compensation Commission for further evidence and findings on
the following questions: (1) who selected the crew of the fishing
sailboat and engaged their services; (2) if selected and engaged by
the “patron”, did the latter act in his own name and for his own
account, or on behalf and for the account of Viaña; (3) could Viaña
have refused to accept any of the crew members chosen and
engaged by the “patron”; (4) did Petitioner have authority to
determine the time when, the place where and/or the manner or
conditions in or under which the crew would work; (5) who could
dismiss its members.
G.R. No. L-9110 April 30, 1957
JOSEFA VDA. DE CRUZ, ET AL.
vs.
THE MANILA HOTEL COMPANY
- Tirso Cruz with his orchestra furnished music to the Manila Hotel
under the arrangement hereafter to be set forth.
- The corporation owning the Hotel gave written notice to its
employees that the Hotel would be leased to the Bay View Hotel,
and that those employees to be laid off would be granted a
 separation gratuity computed according to specified terms and
conditions.
- Cruz and his musicians claimed the gratuity
- But the Manila Hotel management denied their claim saying they
were not its employees.
- Wherefore they instituted this action.
- The court issued an order dismissing the complaint on the ground
that plaintiffs had no cause of action against defendant since they
were not its employees.
- Hence this appeal.
- The defendant filed a motion to dismiss alleging:
a. that plaintiffs were not its employee.
b. plaintiffs did not fall within the terms of Annex A
because they were not, and never had been members
of the Government Service Insurance System.
- Plaintiffs replied to the motion, did not deny the terms of Exhibit 1,
nor the allegations of non-membership in the Government Service
Insurance System; but insisted they were employees of the Hotel.
Independently however of the Hotel's interpretation of its own
announcement, and analyzing the terms of Annex A, we notice that it
extends to those employees of the Hotel who were "not yet entitled to either
the optional or compulsory retirement insurance provided under Republic
Act No. 660". And then we read that retirement insurance under Republic Act
No. 660 is given only to those insured with the Government Service Insurance
System or the G.S.I.S.; and that the herein plaintiffs were never members of
(insured with) such Insurance System. Wherefore the inevitable conclusion
flows that even if these plaintiffs were "employees" of the Hotel in general,
they cannot claim to be beneficiaries under Annex A, because they could not
qualify as employees "who were not yet entitled to retirement insurance
under the G.S.I.S."
ISSUE: Whether or not there exist an employer-employee relationship
between Cruz and the hotel.
RULING:
- The Manila Hotel contracted or engaged the "services of orchestra"
(of Tirso Cruz) composed of fifteen musicians including Cruz plus
Ric Cruz as vocalist" at P250 per day, said orchestra to "play from
7:30 p.m. to closing time daily". What pieces the orchestra shall
play, and how the music shall be arranged or directed, the intervals
and other details — such are left to the leader's discretion. The
music instruments, the music papers and other paraphernalia are
not furnished by the Hotel, they belong to the orchestra, which in
turn belongs to Tirso Cruz — not to the Hotel. The individual
musicians, and the instruments they have not been selected by the
Hotel. It reserved no power to discharge any musician. How much
salary is given to the individual members is left entirely to "the
orchestra" or the leader. Payment of such salary is not made by the
Hotel to the individual musicians, but only a lump-sum
compensation is given weekly to Tirso Cruz.
- Thus, Tirso Cruz was not an employee of the Manila Hotel, but one
engaged to furnish music to said hotel for the price of P250.00
daily, in other words, an independent contractor within the
meaning of the law of master and servant.
An independent contractor is one who in rendering services, exercises
an independent employment or occupation and represents the will of his
employer only as to the results of his work and not as to the means whereby
it is accomplished; one who exercising an independent employment,
contracts to do a piece of work according to his own methods, without being
subject to the control of his employer except as to the result of his work; and
who engages to perform a certain service for another, according to his own
manner and methods, without being subject to the control of his employer
except as to the result of his work; and who engages to perform a certain
service for another, according to his own manner and method, free from the
control and direction of his employer in all matters connected with the
performance of the service, except as to the result of the work.
G.R. No. L-12582 January 28, 1961
 LVN PICTURES, INC.
vs.
PHILIPPINE MUSICIANS Guild (FFW) and COURT OF INDUSTRIAL
RELATIONS
x---------------------------------------------------------x
G.R. No. L-12598 January 28, 1961
SAMPAGUITA PICTURES, INC.
vs.
PHILIPPINE MUSICIANS Guild (FFW) and COURT OF INDUSTRIAL
RELATIONS
FACTS:
- Philippine Musicians Guild (FFW) averred that it is a duly registered
legitimate labor organization; that LVN Pictures, Inc., Sampaguita
Pictures, Inc., and Premiere Productions, Inc. are corporations, duly
organized under the Philippine laws, engaged in the making of
motion pictures and in the processing and distribution thereof; that
said companies employ musicians for the purpose of making music
recordings for title music, background music, musical numbers,
finale music and other incidental music, without which a motion
picture is incomplete; that ninety-five (95%) percent of all the
musicians playing for the musical recordings of said companies are
members of the Guild; and that the same has no knowledge of the
existence of any other legitimate labor organization representing
musicians in said companies.
- Premised upon these allegations, the Guild prayed that it be
certified as the sole and exclusive bargaining agency for all
musicians working in the aforementioned companies.
- In their respective answers, the latter denied that they have any
musicians as employees, and alleged that the musical numbers in
the filing of the companies are furnished by independent
contractors.
- The lower court, however, rejected this pretense and sustained the
theory of the Guild, with the result already adverted to.
- A reconsideration of the order complained of having been denied
by the Court en banc, LVN Pictures, inc., and Sampaguita Pictures,
Inc., filed these petitions for review for certiorari.
LVN Pictures, Inc., maintains that 1.) a petition for certification cannot
be entertained when the existence of employer-employee relationship
between the parties is contested. However, this claim is neither borne out by
any legal provision nor supported by any authority. So long as, after due
hearing, the parties are found to bear said relationship, as in the case at bar,
it is proper to pass upon the merits of the petition for certification. 2.)
certification is improper in the present case, because, "(a) the petition does
not allege and no evidence was presented that the alleged musicians-
employees of the respondents constitute a proper bargaining unit, and (b)
said alleged musicians-employees represent a majority of the other
numerous employees of the film companies constituting a proper bargaining
unit under section 12 (a) of Republic Act No. 875."
ISSUE: Whether or not the musicians in question are employees of the film
companies.
RULING:
- The work of the musical director and musicians is a functional and
integral part of the enterprise performed at the same studio
substantially under the direction and control of the company.
- To determine whether a person who performs work for another is
the latter's employee or an independent contractor, the National
Labor Relations relies on 'the right to control' test. Under this 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 the end. (United Insurance Company, 108, NLRB
No. 115.).
- The right of control of the film company over the musicians is
shown (1) by calling the musicians through 'call slips' in 'the name
 of the company; (2) by arranging schedules in its studio for
recording sessions; (3) by furnishing transportation and meals to
musicians; and (4) by supervising and directing in detail, through
the motion picture director, the performance of the musicians
before the camera, in order to suit the music they are playing to
the picture which is being flashed on the screen.
- Thus, in the application of Philippine statutes and pertinent
decisions of the United States Courts on the matter to the facts
established in this case, we cannot but conclude that to effectuate
the policies of the Act and by virtue of the 'right of control' test, the
members of the Philippine Musicians Guild are employees of the
three film companies and, therefore, entitled to right of collective
bargaining under Republic Act No. 875.
- In view of the fact that the three (3) film companies did not
question the union's majority, the Philippine Musicians Guild is
hereby declared as the sole collective bargaining representative for
all the musicians employed by the film companies."
The musical directors above referred to have no such control over the
musicians involved in the present case. Said musical directors control neither
the music to be played, nor the musicians playing it. The film companies
summon the musicians to work, through the musical directors. The film
companies, through the musical directors, fix the date, the time and the
place of work. The film companies, not the musical directors, provide the
transportation to and from the studio. The film companies furnish meal at
dinner time.
What is more — in the language of the order appealed from — "during
the recording sessions, the motion picture director who is an employee of the
company" — not the musical director — "supervises the recording of the
musicians and tells them what to do in every detail". The motion picture
director — not the musical director — "solely directs and performance of the
musicians before the camera". The motion picture director "supervises the
performance of all the actors, including the musicians who appear in the
scenes, so that in the actual performance to be shown in the screen, the
musical director's intervention has stopped." Or, as testified to in the lower
court, "the movie director tells the musical director what to do; tells the
music to be cut or tells additional music in this part or he eliminates the entire
music he does not (want) or he may want more drums or move violin or
piano, as the case may be". The movie director "directly controls the
activities of the musicians." He "says he wants more drums and the drummer
plays more" or "if he wants more violin or he does not like that.".
- It is well settled that "an employer-employee relationship
existswhere 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.
- By reason of said control, the employer-employee relationship was
held to exist between the management and the workers,
notwithstanding the intervention of an alleged independent
contractor, who had, and exercise, the power to hire and fire said
workers. The aforementioned control over the means to be used"
in reading the desired end is possessed and exercised by the film
companies over the musicians.
G.R. No. 77205 May 27, 1991
VALENTINO TORILLO
vs.
VICENTE LEOGARDO, JR., in his official capacity as Deputy Minister of
Labor; the HONORABLE MINISTER OF LABOR AND EMPLOYMENT; and
ABERDEEN COURT, INC.,
FACTS:
- Petitioner Valentino Torillo was employed as an organist by private
respondent Aberdeen Court, Inc. with a daily compensation of
P115.00 for five hour work a day.
- In celecration of his birthday, he invited his co-employees for a
night out in his hometown.
- Private respondent objected to such activity, requesting its
employees, if possible, to refrain from attending the affair because
the following day was a working day.
- Despite private respondent's objections, petitioner pushed
through with his birthday party.
- Petitioner reported for work the next day, private respondent,
through its Floor Manager, informed petitioner that he was being
dismissed from his employment effective that same day for having
defied private respondent's order.
- Consequently, petitioner filed with the Ministry of Labor &
Employment, a complaint against private respondent for illegal
dismissal with prayer for reinstatement with backwages, including
payment of his unpaid wages from, holiday pay and premium pay
from.
- Private respondent tried to justify petitioner's dismissal by claiming
that the latter abandoned his work in failing to report for duty after
his birthday celebration.
- The Ministry of Labor thru Director Estrella ruled that private
respondent's theory of abandonment of work was without factual
and legal basis as petitioner reported for work immediately
following his birthday celebration; and that his dismissal was
without the required prior clearance.
- Finding petitioner's dismissal as illegal, it ordered private
respondent Aberdeen Court, Inc. to reinstate petitioner to his
former position without loss of seniority rights and privileges with
full backwages from date of dismissal until date of actual
reinstatement and to pay petitioner his holiday pay for seven (7)
days plus his unpaid wages. However, petitioner's claim for
premium pay was dismissed for lack of merit.
- Private respondent Aberdeen Court, Inc. appealed to the Ministry
of Labor alleging that there was no factual or legal basis to support
the subject order and that said Director abused his discretion.
- Petitioner filed his opposition alleging that the appeal was frivolous
and dilatory.
- After seven (7) years, the Ministry of Labor and Employment, thru
Deputy Minister Vicente Leogardo, Jr., issued an order affirming
that of Director Estrella with the modification that in lieu of
reinstatement, petitioner should be paid separation pay equivalent
to petitioner's wages for two (2) months.
- A motion for reconsideration was filed by private respondent but
this was denied in an order.
- Undaunted, private respondent filed a motion for leave to file
second motion for reconsideration attaching thereto the said
second motion.
- Meanwhile, petitioner filed an urgent motion for execution and
appointment of special sheriff which was opposed by private
respondent.
- Thereafter, the Ministry of Labor thru its Officer-in-Charge, Romeo
A. Young, issued a writ of execution directing the sheriff to execute
the order of Deputy Minister Leogardo, Jr. requiring private
respondent to pay petitioner representing his, legal holiday pay for
seven days, separation pay of two (2) months and unpaid wages for
three (3) days.
- By virtue of said writ, personal properties of private respondent
were levied upon. These personal properties were to have been
sold in a public auction scheduled were it not for the motion to
quash the writ of execution filed by private respondent on the
grounds that: first, its second motion for reconsideration has not
yet been acted upon, second, backwages should not be awarded to
petitioner since the order of Deputy Minister Leogardo, Jr. stated
that in lieu of reinstatement, petitioner should only be paid
separation pay equivalent to his wages for two (2) months, third,
assuming that petitioner is entitled to backwages, the law allows
the employer to deduct from his backwages his income earned
elsewhere during the time he was out of work; and fourth, private
respondent should be present during the computation of the
monetary award.
 - Petitioner filed an opposition to this motion as well as a
supplemental motion for execution citing Section 2, Rule XV of the
Implementing Rules & Regulations of the New Labor Code, which
states that the decision of the Secretary of Labor shall be
immediately executory, pending appeal, unless stayed by the order
of the President of the Philippines.
- Officer-in-charge Romeo A. Young of the Ministry of Labor issued a
restraining order enjoining the assigned sheriff from proceeding
with the auction sale of the levied properties of private respondent
until further orders.
- However, he recalled the restraining order issued and directed the
sheriff to proceed with the execution.
- Thereafter, private respondent appealed to the Office of the
Minister of Labor praying that the Order be set aside and should
private respondent be liable to pay backwages to complainant, the
same be computed following the guidelines set forth by this Court.
- Deputy Minister Vicente Leogardo, Jr. issued an order with the
clarification that the affirmative relief granted to complainant does
not include the payment of backwages. In addition, the writ of
execution to enforce payment of backwages was quashed.
- Petitioner filed a motion for reconsideration of said order but the same
was denied by Minister of Labor.
ISSUE: Whether or not the award of backwages in addition to an award of
separation pay to an illegally dismissed employee whose reinstatement is
no longer feasible is proper.
RULING:
- The clarificatory order is erroneous in so far as it declared that the
affirmative relief of backwages is available only where
reinstatement is ordered.
Article 280 (now Article 279) of the Labor Code provides that "an
employee who is unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and other privileges and to his
full backwages . . . ."
- Backwages in general are granted on grounds of equity for earnings
which a worker or employee has lost due to his illegal dismissal.
Reinstatement, on the other hand, means restoration to a state of
condition from which one had been removed or separated.
- Backwages and reinstatement are two reliefs given to an illegally
dismissed employee. They are separate and distinct from each
other.
- However, in the event that reinstatement is no longer possible,
separation pay is awarded to the employee. Thus, the award of
separation pay is in lieu of reinstatement and not of backwages
- In other words, an illegally dismissed employee is entitled to (1)
either reinstatement, if viable, or separation pay if reinstatement is
no longer viable and (2) backwages.
- Petitioner, by reason of his illegal dismissal is entitled to both
separation pay and backwages. However, the amount of
backwages shall be based on the Mercury Drug Rule which limits
backwages of illegally dismissed employees to an amount
equivalent to their wages for three (3) years, without qualification
and deduction. With regards to petitioner's separation pay which
was awarded to him in lieu of reinstatement, he shall receive the
amount equivalent to one month wage/salary for every year of
service, including the three-year period in which backwages are
awarded.
G.R. No. 198782, October 19, 2016
ALLAN BAZAR
vs.
CARLOS A. RUIZOL
FACTS:
- Respondent Carlos A. Ruizol was a mechanic at Norkis Distributors
and assigned at the Surigao City branch.
- Allan Bazar was assigned as a new manager in the Surigao City
branch.
- Respondent was terminated due to an alleged protégé appointed
by Bazar as mechanic.
- Respondent filed a complaint before Regional Arbitration the
National Labor Relations Commission (NLRC) for illegal dismissal
and other monetary claims.
- An Amended Complaint was filed changing the name of the
petitioner therein from Norkis Display Center to Norkis
Distributors, Inc. (NDI).
- Petitioner, on the other hand, alleged that NDI is a corporation
engaged in the sale, wholesale and retail of Yamaha motorcycle
units. Petitioner countered that respondent is not an employee but
a franchised mechanic of NDI pursuant to a retainership
agreement. Petitioner averred that respondent, being the owner of
a motor repair shop, performed repair warranty service, back
repair of Yamaha units, and ordinary repair at his own shop.
Petitioner maintained that NDI terminated the retainership
contract with respondent because they were no longer satisfied
with the latter's services.
- Executive Labor Arbiter Noel Augusto S. Magbanua ruled in favor
of respondent declaring him a regular employee of NDI and that he
was illegally dismissed. The Labor Arbiter stressed that an
employer-employee relationship existed in this case. He did not
give any weight to the unsworn contract of retainership based on
the reason that it is a clear circumvention of respondent's security
of tenure.
- On appeal, petitioner reiterated that there is no employer-
employee relationship between NDI and respondent because the
latter is only a retainer mechanic of NDI.
- Finding merit in the appeal, the NLRC reversed the ruling of the
Labor Arbiter and dismissed the case for lack of cause of action. The
NLRC held that respondent failed to refute petitioner's allegation
that he personally owns a motor shop offering repair and check-up
services to other customers and that he worked on the units
referred by NDI either at his own motor shop or at NDI's service
shop. The NLRC also ruled that NDI had no power of control and
supervision over the means and method by which respondent
performed job as mechanic. The NLRC concluded that respondent
is bound to adhere to and respect the retainership contract
wherein he declared and acknowledged that he is not an employee
of NDI.
- Respondent filed a petition for certiorari before the Court of
Appeals, submitting that the Labor Arbiter's ruling had become
final with respect to NDI because the latter failed to appeal the
same. Respondent asserted that the NLRC erred in ruling that there
is no employer-employee relationship between the parties.
Respondent also prayed for reinstatement.
- Court of Appeals granted the petition and ruled that petitioner had
no legal personality to make the appeal for NDI. The Court of
Appeals held that the labor arbiter's decision with respect to NDI is
final. The Court of Appeals found that there was employer-
employee relationship between respondent and NDI and that
respondent was unlawfully dismissed. Finally, the Court of Appeals
awarded respondent separation pay in lieu of reinstatement.
- Petitioner sought reconsideration of the decision but its motion for
reconsideration was denied.
- Hence, this petition.
ISSUE: Whether or not Ruizol is an employee of NDI and was illegally
dismissed.
RULING:
- The four-fold test used in determining the, existence of 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 employer's power to control the employee with respect
to the means and. method by which the work is to be
accomplished.
- First, the services of [respondent] was indisputably engaged by the
[NDI] without the aid of a third party.
- Secondly, the fact that the [respondent] was paid a retainer fee and
on a per diem basis does not altogether negate the existence of an
[employer]-employee relationship. The retainer agreement only
provided the breakdown, of the [respondent's] monthly income.
On a more important note, the [NDI] did not present its payroll,
which it could conveniently do, to disprove the [respondent's]
claim that he was their employee.
- Third, the [NDI's] power of dismissal can be [gleaned] from the
termination of the [respondent] although couched under the guise
of the non-renewal of his contract with the company. Also, the
contract alone showed that the [respondent] provided service to
Yamaha motorbikes brought to the NDI service shop in accordance
with the manual of the unit and subject to the minimum standards
set by the company. Also, tool kits were furnished to the mechanics
which they use in repairs and checking of the units conducted
inside or in front of the Norkis Display Center.
- The control test is the most crucial and determinative indicator of
the presence or absence of an employer-employee relationship.
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 achieved, but also the manner
and means to be used in reaching that end. It was shown that
respondent had to abide by the standards sets by NDI in conducting
repair work on Yamaha motorbikes done in NDI's service shop. As
a matter of fact, on allegations that respondent failed to live up to
the demands of the work, he was sent several memoranda by NDI.
- Since it was sufficiently established that petitioner is an employee
of NDI, he is entitled to security of tenure. He can only be dismissed
for a just or authorized cause. Petitioner was dismissed through a
letter informing him of termination of contract of retainership
which we construe as a termination notice. For lack of a just or
authorized cause coupled with failure to observe the twin-notice
rule in termination cases, respondent's dismissal is clearly illegal.
- We now go to the liability of petitioner for payment of the
monetary award. There is solidary liability when the obligation
expressly so states, when the law so provides, or when the nature
of the obligation so requires. Settled is the rule that a director or
officer shall only be personally liable for the obligations of the
corporation, if the following conditions concur: (1) the complainant
alleged in the complaint that the director or officer assented to
patently unlawful acts of the corporation, or that the officer was
guilty of gross negligence or bad faith; and (2) the complainant
clearly and convincingly proved such unlawful acts, negligence or
bad faith.
- In the instant case, there is an allegation that petitioner dismissed
respondent because he wanted to hire his own mechanic.
However, this remained to be an allegation absent sufficient proof
of motive behind respondent's termination. Petitioner may have
directly issued the order to dismiss respondent but respondent
must prove with certainty bad faith on the part of petitioner. No
bad faith can be presumed from the lone fact that immediately
after respondent's termination, a new mechanic was hired. That
the new mechanic was actually petitioner's protege is a mere
allegation with no proof. Therefore, petitioner, as branch manager,
cannot be held solidarily liable with NDI.
G.R. No. 153511, July 18, 2012
LEGEND HOTEL (MANILA), OWNED BY TITANIUM CORPORATION
AND/OR, NELSON NAPUD, IN HIS CAPACITYAS THE PRESIDENT OF
PETITIONER CORPORATION
VS
HERNANI S. REALUYO, ALSO KNOWN AS JOEY ROA
FACTS:
- Respondent is a pianist employed to perform in the restaurant
of a hotel with an initial rate of P400.00/night; and that it had
increased to P750.00/night. During his employment, he could not
 choose the time of performance, which had been fixed from
7:00PM to 10:00pm for three to six times a week.
- The management had notified him that as a cost-cutting measure,
his services as a pianist would no longer be required.
- Joey R. Roa, filed a complaint for alleged unfair labor practice,
constructive illegal dismissal, and the underpayment/non-payment
of his premium pay for holidays, separationpay, service incentive
leave pay, and 13th month pay. He prayed for attorney’s fees, moral
damages and exemplary damages.
- Petitioner denied the existence of an employer-employee
relationship with Roa, insisting that he had been only a talent
engaged to provide live music at Legend Hotel’s Madison Coffee
Shop for three hours/day on two days each week; and stated that
the economic crisis that had hit the country constrained
management to dispense with his services.
- Labor Arbiter (LA) dismissed the complaint for lack of merit
upon finding that the parties had no employer-employee
relationship, because Roa was receiving talent fee and not salary
which was reinforced by the fact that Roa received his talent fee
nightly, unlike the regular employees of the hotel who are paid
monthly.
- NLRC affirmed the LA’s decision.
- CA set aside the decision of the NLRC
ISSUES: Whether or not respondent was an employee of petitioner and that
respondent was illegally dismissed.
RULING:
- YES. Employer-employee relationship existed between the parties.
- Roa was undeniably employed as a pianist of the restaurant.
1. The hotel wielded the power of selection at the time it entered
into the service contract with Roa.
2. The argument that Roa was receiving talent fee and not salary
is baseless. There is no denying that the remuneration
denominated as talent fees was fixed on the basis of his talent,
skill, and the quality of music he played during the hours of his
performance. Roa’s remuneration, albeit denominated as
talent fees, was still considered as included in the term wage
in the sense and context of the Labor Code, regardless of how
petitioner chose to designate the remuneration, as per Article
97(f) of the Labor Code.
3. The respondent performed his work as a pianist under the
petitioner’s control and supervision.
4. The memo informing respondent of the discontinuance of his
service because of the present business condition of petitioner
showed that the latter had to dismiss from employment.
(Petitioner did not submit evidence of the losses to its business
operations and the economic disorder it would thereby
imminently sustain. Hence there was no valid cause for the
retrenchment of respondent.
G.R. No. 197899 March 6, 2017
JOAQUIN LU
vs
TIRSO ENOPIA et al
FACTS:
- Respondents were hired from as crew members of the fishing
mother boat owned by respondent who is the sole proprietor of
Mommy Gina Tuna Resources [MGTR] based in General Santos City.
- Petitioners and Lu had an income-sharing arrangement wherein
55% goes to Lu, 45% to the crew members, with an additional 4%
as "backing incentive." They also equally share the expenses for the
maintenance and repair of the mother boat, and for the purchase
of nets, ropes and payaos.
- Lu proposed the signing of a Joint Venture Fishing Agreement
between them, but petitioners refused to sign the same as they
opposed the one-year term provided in the agreement. According
to petitioners, Lu terminated their services right there and then
because of their refusal to sign the agreement.
- On the other hand, Lu alleged that the master fisherman (piado)
Ruben Salili informed him that petitioners still refused to sign the
agreement and have decided to return the vessel.
- Petitioners filed their complaint for illegal dismissal, monetary
claims and damages.
- In their Position Paper, petitioners alleged that their refusal to sign
the Joint Venture Fishing Agreement is not a just cause for their
termination. Petitioners also asked for a refund of the amount that
was taken out of their 50% income share for the repair and
maintenance of boat as well as the purchase of fishing materials, as
Lu should not benefit from such deduction.
- On the other hand, Lu denied having dismissed petitioners,
claiming that their relationship was one of joint venture where he
provided the vessel and other fishing paraphernalia, while
petitioners, as industrial partners, provided labor by fishing in the
high seas. Lu alleged that there was no employer-employee
relationship as its elements were not present, viz.: it was the piado
who hired petitioners; they were not paid wages but shares in the
catch, which they themselves determine; they were not subject to
his discipline; and respondent had no control over the day-to-day
fishing operations, although they stayed in contact through
respondent's radio operator or checker. Lu also claimed that
petitioners should not be reimbursed for their share in the
expenses since it was their joint venture that shouldered these
expenses.
- LA rendered a Decision dismissing the case for lack of merit finding
that there was no employer-employee relationship existing
between petitioner and the respondents but a joint venture.
- Respondents appealed to the National Labor Relations Commission
(NLRC), which affirmed the LA Decision in its Resolution.
- Respondents' motion for reconsideration was likewise denied.
- Respondents filed a petition for certiorari with the CA which
dismissed the same for having been filed beyond the 60-day
reglementary period as provided under Rule 65 of the Rules of
Court, and that the sworn certification of non-forum shopping was
signed only by two (2) of the respondents who had not shown any
authority to sign in behalf of the other respondents.
- Their motion for reconsideration was denied, hence the petition for
certiorari assailing the dismissal which was granted and remanded
the case to the CA for further proceedings.
Petitioner filed its Comment to the petition. The parties submitted their
respective memoranda as required by the CA. CA rendered its assailed
Decision reversing the NLRC, and ordered Lu to pay each of the petitioners
separation pay, full backwages, exemplary damages and attorney’s fees.
Petitioner's motion for reconsideration was denied by the CA.
ISSUE: Whether or not an employer-employee relationship existed
between petitioner and respondents.
RULING:
- In determining the existence of an employer-employee
relationship, the following elements are considered: (1) the
selection and engagement of the workers; (2) the power to control
the worker's conduct; (3) the payment of wages by whatever
means; and (4) the power of dismissal.
- All these elements present in this case. It is settled that no
particular form of evidence is required to prove the existence of an
employer-employee relationship. Any competent and relevant
evidence to prove the relationship may be admitted.
1. The employer stated in their Social Security System (SSS) online
inquiry system printouts was MGTR, which is owned by petitioner.
2. Moreover, the records show that the 4% backing incentive fee
which was divided among the fishermen engaged in the fishing
operations approved by petitioner was paid to respondents after
deducting the latter's respective vale or cash advance. Notably,
even the piado's name was written in the backing incentive fee
sheet with the corresponding vale which was deducted from his
incentive fee. If indeed a joint venture was agreed upon between
petitioner and respondents, why would these fishermen obtain
vale or cash advance from petitioner and not from the piado who
allegedly hired and had control over them.
3. It was established that petitioner exercised control over
respondents. It should be remembered that the control test merely
calls for the existence of the right to control, and not necessarily
the exercise thereof. It is not essential that the employer actually
supervises the performance of duties by the employee. It is enough
that the former has a right to wield the power.
 4. Petitioner wielded the power of dismissal over respondents when
he dismissed them after they refused to sign the joint fishing
venture agreement.
- As respondents were petitioner's regular employees, they are
entitled to security of tenure under Section 3,27 Article XIII of the
1987 Constitution. It is also provided under Article 279 of the Labor
Code, that the right to security of tenure guarantees the right of
employees to continue in their employment absent a just or
authorized cause for termination.
G.R. No. 94951 April 22, 1991
APEX MINING COMPANY, INC
vs.
NATIONAL LABOR RELATIONS COMMISSION and SINCLITICA
CANDIDO
FACTS:
- Private respondent Sinclita Candida was employed by petitioner
Apex Mining Company, Inc. to perform laundry services at its staff
house.
- In the beginning, she was paid on a piece rate basis. Subsequently
she was paid on a monthly basis.
- While she was attending to her assigned task and she was hanging
her laundry, she accidentally slipped and hit her back on a stone.
- She was permitted to go on leave for medication.
- De la Rosa, her immediate supervisor offered her to quit her job,
but she refused the offer and preferred to return to work.
- Petitioner did not allow her to return to work and dismissed her.
- Private respondent filed a request for assistance with the
Department of Labor and Employment.
- DOLE rendered a decision ordering Apex Mining Company, Inc. to
pay the complainant her salary, allowance and differential pay.
- Not satisfied therewith, petitioner appealed to the public
respondent National Labor Relations Commission (NLRC), wherein
it dismissed the appeal for lack of merit and affirming the appealed
decision. A motion for reconsideration thereof was denied.
- Petitioner contends that it is only when the househelper or
domestic servant is assigned to certain aspects of the business of
the employer that such househelper or domestic servant may be
considered as such as employee.
- Hence, the herein petition for review by certiorari, which
appopriately should be a special civil action for certiorari, and
which in the interest of justice, is hereby treated as such.
ISSUE: Whether or not househelper in the staff houses of an industrial
company a domestic helper or a regular employee of the said firm.
RULING:
The term "househelper" as used herein is synonymous to the term
"domestic servant" and shall refer to any person, whether male or female,
who renders services in and about the employer's home and which services
are usually necessary or desirable for the maintenance and enjoyment
thereof, and ministers exclusively to the personal comfort and enjoyment of
the employer's family.
- The criteria is the personal comfort and enjoyment of the family of
the employer in the home of said employer. While it may be true
that the nature of the work of a househelper, domestic servant or
laundrywoman in a home or in a company staffhouse may be
similar in nature, the difference in their circumstances is that in the
former instance they are actually serving the family while in the
latter case, whether it is a corporation or a single proprietorship
engaged in business or industry or any other agricultural or similar
pursuit, service is being rendered in the staffhouses or within the
premises of the business of the employer. In such instance, they
are employees of the company or employer in the business
concerned entitled to the privileges of a regular employee.
- The mere fact that the househelper or domestic servant is working
within the premises of the business of the employer and in relation
to or in connection with its business, as in its staffhouses for its
guest or even for its officers and employees, warrants the
 conclusion that such househelper or domestic servant is and should
be considered as a regular employee of the employer and not as a
mere family househelper or domestic servant as contemplated in
Rule XIII, Section l(b), Book 3 of the Labor Code, as amended.
G.R. Nos. 169295-96 November 20, 2006
REMINGTON INDUSTRIAL SALES CORPORATION
vs.
ERLINDA CASTANEDA
FACTS:
- Erlinda alleged that she started working as company cook with a
salary of Php 4,000.00 for Remington, a corporation engaged in the
trading business; that she worked for six (6) days a week, starting
as early as 6:00 a.m. because she had to do the marketing and
would end at around 5:30 p.m., or even later, after most of the
employees, if not all, had left the company premises.
- She continuously worked with Remington until she was
unceremoniously prevented from reporting for work when
Remington transferred to a new site.
- Erlinda believed that her dismissal was illegal because she was not
given the notices required by law; hence, she filed her complaint
for reinstatement without loss of seniority rights, salary
differentials, service incentive leave pay, 13th month pay and 10%
attorney’s fees.
- Remington denied that it dismissed Erlinda illegally. It posited that
Erlinda was a domestic helper, not a regular employee; Erlinda
worked as a cook and this job had nothing to do with Remington’s
business of trading in construction or hardware materials, steel
plates and wire rope products.
- The labor arbiter dismissed the complaint and ruled that the
respondent was a domestic helper under the personal service of
Antonio Tan, finding that her work as a cook was not usually
necessary and desirable in the ordinary course of trade and
business of the petitioner corporation, which operated as a trading
company, and that the latter did not exercise control over her
functions. On the issue of illegal dismissal, the labor arbiter found
that it was the respondent who refused to go with the family of
Antonio Tan when the corporation transferred office and that,
therefore, respondent could not have been illegally dismissed.
- Upon appeal, the National Labor Relations Commission (NLRC)
rendered a Decision reversing the labor arbiter.
- Petitioner moved to reconsider this decision but the NLRC denied
the motion.
- This denial of its motion prompted petitioner to file a Petition for
Certiorari with the Court of Appeals imputing grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of
the NLRC in (1) reversing in toto the decision of the labor arbiter,
and (2) awarding in favor of respondent salary differential, service
incentive leave pay, 13th month pay differential and separation
benefits.
- While the petition was pending with the Court of Appeals, the NLRC
rendered another Decision in the same case. How and why another
decision was rendered is explained in that decision as follows:
 complainant filed a Manifestation praying for a
resolution of her Motion for Reconsideration
and, in support thereof, alleges that she mailed
her Manifestation and Motion for
Reconsideration registered; and that the said
mail was received by the NLRC, through a certain
Roland Hernandez. Certifications to this effect
was issued by the Postmaster.
- Evidence in support of complainant’s having actually filed a Motion
for Reconsideration within the reglementary period having been
sufficiently established, a determination of its merits is thus, in
order.
- On the merits, the NLRC found respondent’s motion for
reconsideration meritorious leading to the issuance of its second
decision by increasing the award of retirement pay due the
complainant.
- Petitioner challenged the second decision of the NLRC, including
the resolution denying its motion for reconsideration, through a
second Petition for Certiorari filed with the Court of Appeals this
time imputing grave abuse of discretion amounting to lack of or
excess of jurisdiction on the part of the NLRC in (1) issuing the
 second decision despite losing its jurisdiction due to the pendency
of the first petition for certiorari with the Court of Appeals, and (2)
assuming it still had jurisdiction to issue the second decision
notwithstanding the pendency of the first petition for certiorari
with the Court of Appeals, that its second decision has no basis in
law since respondent’s motion for reconsideration, which was
made the basis of the second decision, was not filed under oath in
violation of Section 14, Rule VII of the New Rules of Procedure of
the NLRC and that it contained no certification as to why
respondent’s motion for reconsideration was not decided on time
as also required by Section 10, Rule VI10 and Section 15, Rule VII11
of the aforementioned rules.
- Upon petitioner’s motion, the Court of Appeals ordered the
consolidation of the two (2) petitions.
- Court of Appeals dismissed the consolidated petitions for lack of
merit, finding no grave abuse of discretion on the part of the NLRC
in issuing the assailed decisions.
- From this decision, petitioner filed a motion for reconsideration
which the Court of Appeals denied.
- Hence, the present petition for review.
ISSUE: Whether or not respondent was petitioner’s regular employee and
not a domestic helper; and if so, petitioner was guilty of illegal dismissal.
RULING:
- Respondent was a regular employee of the petitioner and that the
latter was guilty of illegal dismissal.
- In the case at bar, the petitioner itself admits in its position paper
that respondent worked at the company premises and her duty
was to cook and prepare its employees’ lunch and merienda.
Clearly, the situs, as well as the nature of respondent’s work as a
cook, who caters not only to the needs of Mr. Tan and his family
but also to that of the petitioner’s employees, makes her fall
squarely within the definition of a regular employee under the
doctrine enunciated in the Apex Mining case. That she works within
company premises, and that she does not cater exclusively to the
personal comfort of Mr. Tan and his family, is reflective of the
existence of the petitioner’s right of control over her functions,
which is the primary indicator of the existence of an employer-
employee relationship.
- Moreover, it is wrong to say that if the work is not directly related
to the employer's business, then the person performing such work
could not be considered an employee of the latter. The
determination of the existence of an employer-employee
relationship is defined by law according to the facts of each case,
regardless of the nature of the activities involved. Indeed, it would
be the height of injustice if we were to hold that despite the fact
that respondent was made to cook lunch and merienda for the
petitioner’s employees, which work ultimately redounded to the
benefit of the petitioner corporation, she was merely a domestic
worker of the family of Mr. Tan.
- As a regular employee, respondent enjoys the right to security of
tenure under Article 27938 of the Labor Code and may only be
dismissed for a just or authorized cause, otherwise the dismissal
becomes illegal and the employee becomes entitled to
reinstatement and full backwages computed from the time
compensation was withheld up to the time of actual reinstatement.
Abandonment is the deliberate and unjustified refusal of an employee
to resume his employment. It is a form of neglect of duty; hence, a just cause
for termination of employment by the employer under Article 282 of the
Labor Code, which enumerates the just causes for termination by the
employer. For a valid finding of abandonment, these two factors should be
present: (1) the failure to report for work or absence without valid or
justifiable reason; and (2) a clear intention to sever employer-employee
relationship, with the second as the more determinative factor which is
manifested by overt acts from which it may be deduced that the employee
has no more intention to work. The intent to discontinue the employment
must be shown by clear proof that it was deliberate and unjustified.
- This, the petitioner failed to do in the case at bar.
- Indeed, an employee who loses no time in protesting her layoff
cannot by any reasoning be said to have abandoned her work, for
it is well-settled that the filing of an employee of a complaint for
illegal dismissal with a prayer for reinstatement is proof enough of
 her desire to return to work, thus, negating the employer’s charge
of abandonment.
- In termination cases, the burden of proof rests upon the employer
to show that the dismissal is for a just and valid cause; failure to do
so would necessarily mean that the dismissal was illegal.