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G.R. No. L-4148 July 16, 1952

MANILA TERMINAL COMPANY, INC.,petitioner,vs.THE COURT O IN!U"TRIAL RELATION" #$% MANILA TERMINAL RELIE AN! MUTUAL AI! A""OCIATION,respondents.

Perkins, Ponce Enrile and Contreras for petitioner.Antonio V. Raquiza, Honesto Ricobal and Perfecto E. Llacarfor respondent Association.Mariano R. Padilla for respondent Court of Industrial Relations.

PARA", C. J.&

On September 1, 1945, the Manila Terminal Company, Inc. hereinafter to be referred as to the petitioner, ndertoo! the arrastreservice in some of the piers in Manila"s #ort $rea at the re%est and nder the control of the &nited States $rmy. The petitioner hiredsome thirty men as 'atchmen on t'elve(hor shifts at a compensation of #) per day for the day shift and #* per day for the ni+htshift. On ebrary 1, 194*, the petitioner be+an the post'ar operation of the arrastre service at the present at the re%est and nderthe control of the -rea of Cstoms, by virte of a contract entered into 'ith the #hilippine overnment. The 'atchmen of thepetitioner contined in the service 'ith a nmber of sbstittions and additions, their salaries havin+ been raised drin+ the month ofebrary to #4 per day for the day shift and #*./5 per day for the ni+htshift. On March /0, 194, 2ominador 3imene, a member ofthe Manila Terminal elief and Mtal $id $ssociation, sent a letter to the 2epartment of 6abor, re%estin+ that the matter ofovertime pay be investi+ated, bt nothin+ 'as done by the 2epartment. On $pril /9, 194, 7ictorino Ma+no Cr and 8ve otheremployees, also member of the Manila Transit Mtal $id $ssociation, 8led a 5(point demand 'ith the 2epartment of 6abor, incldin+overtime pay, bt the 2epartment a+ain 8led to do anythin+ abot the matter. On May /, 194, the petitioner institted the systemof strict ei+ht(hor shifts. On 3ne 19, 194, the Manila #ort Terminal #olice $ssociation, not re+istered in accordance 'ith theprovisions of Common'ealth $ct o. /1), 8led a petition 'ith the Cort of Indstrial elations. On 3ly 1*, 194, the Manila Terminalelief and Mtal $id $ssociation 'as or+anied for the 8rst time, havin+ been +ranted certi8cate o. )5 by the 2epartment of

6abor. On 3ly /0, 194, Manila Terminal elief and Mtal $id $ssociation 8led an amended petition 'ith the Cort of Indstrialelations prayin+, amon+ others, that the petitioner be ordered to pay its 'atchmen or police force overtime pay from thecommencement of their employment. On May 9, 1949, by virte of Cstoms $dministrative Order o. 01 and :;ective Order o. //0of the #resident of the #hilippines, the entire police force of the petitioner 'as consolidated 'ith the Manila

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The petitioner has 8led a present petition for certiorari. Its varios contentions may be brieHy smmed p in the follo'in+propositionsD A1B The Cort of Indstrial elations has no ?risdiction to render a money ?d+ment involvin+ obli+ation in arrears. A/BThe a+reement nder 'hich its police force 'ere paid certain speci8c 'a+es for t'elve(hor shifts, inclded overtime compensation.A)B The $ssociation is barred from recovery by estoppel and laches. A4B the nllity or invalidity of the employment contract precldesany recovery by the $ssociation. A5B Common'ealth $ct o. 4444 does not athorie recovery of bac! overtime pay.

The contention that the Cort of Indstrial elations has no ?risdiction to a'ard a money ?d+ment 'as already overrled by thisCort in .. o. 6(4)), 2etective protective ureau, Inc. !s. Court of Industrial Relations and "nited E#plo$ees %elfare

Association, 9> #hil., **5, in this 'iseD JIt is also ar+ed that the respondent cort has no ?risdiction to a'ard overtime pay, 'hich ismoney ?d+ment. Ee believe that nder Common'ealth $ct o. 1>) the Cort is empo'ered to ma!e the order for the prpose ofsettlin+ disptes bet'een the employer and employee1. $s a matter of fact this Cort has con8rmed an order of the Cort ofIndstrial elations re%irin+ the :l!s Clb to pay to its employees certain sm of money as overtime bac! 'a+es from 3ne ), 19)9to March 1), 1941. This, in spite the alle+ation of lac! or e;cess of ?risdiction on the part of said cort. A45 OF. a., )0/9 0> #hil.//BJ

The important point stressed by the petitioner is that the contract bet'een it and the $ssociation pon the commencement of theemployment of its 'atchman 'as to the certain rates of pay, incldin+ overtime compensation namely, #) per day for the day shiftand #* per day for ni+ht shift be+innin+ September 1, 1945, and #4 per day shift and #*./5 per day for the ni+ht shift since ebrary,194*. The record does not bear ot these alle+ations. The petitioner has relied merely on the facts that its 'atchmen had 'or!ed ont'elve(hor shifts at speci8c 'a+es per day and that no complaint 'as made abot the matter ntil, 8rst on March /0, 194 and,secondly, on $pril /9, 194.

In times of acte nemployment, the people, r+ed by the instinct of self(preservation, +o from place to place and from oGce to oGcein search for any employment, re+ardless of its terms and conditions, their main concern in the 8rst place bein+ admission to some'or!. Specially for positions re%irin+ no special %ali8cations, applicants 'old be +ood as re?ected if they ever try to be in%isitiveabot the hors of 'or! or the amont of salary, ever attempt to dictate their terms. The petitioner"s 'atchmen mst have railroadedthemselves into their employment, so to spea!, happy in the tho+ht that they 'old then have an income on 'hich to sbsist. -t,

at the same time, they fond themselves re%ired to 'or! for t'elve hors a day. Tre, there 'as a+reement to 'or!, bt can it fairlybe spposed that they had the freedom to bar+ain in any 'ay, mch less to insist in the observance of the :i+ht daily, for both day and ni+ht shifts.J $ltho+h it may be ar+ed that the salary for the ni+ht shift 'as some'hatlessened, the fact that the rate for the day shift 'as increased in a sense tends to militate a+ainst the contention that the salaries+iven drin+ the t'elve(hor shifts inclded overtime compensation.

#etitioner"s alle+ation that the association had ac%iesced in the t'elve(hor shifts for more than 10 months, is not accrate, becasethe 'atchmen involved in this case did not enter the service of the petitioner, at one time, on September 1, 1945. $s 3d+e 6antin+fond, Jonly one of them entered the service of the company on said date, very fe' drin+ the rest of said month, some drin+ therest of that year A1945B and in 194*, and very many in 194, 1940 and 1949.J

The case at bar is %ite on all fors 'ith the case of 'etecti!e ) Protecti!e ureau, Inc. !s. Court of Industrial Relations and "nitedE#plo$ees %elfare Association, supra, in 'hich the facts 'ere as follo'sD JThe record discloses that pon petition properly sbmitted,said cort made an investi+ation and fond that the members of the &nited :mployees Eelfare $ssociation Ahereafter called the$ssociationB 'ere in the employ of the petitioner 2etective and #rotective -rea, Inc. Aherein called the -reaB 'hich is en+a+ed inthe bsiness of frnishin+ secrity +ards to commercial and indstrial establishments, payin+ to said members monthly salaries otof 'hat it received from the establishments bene8ted by +ard service. The employment called for daily tors of dty for more thanei+ht hors, in addition to 'or! on Sndays and holidays. onetheless the members performed their labors 'ithot receivin+ e;tracompensation.J The only diFerence is that, 'hile in said case the employees concerned 'ere paid monthly salaries, in the case no'before s the 'a+es 'ere compted daily. In the case cited, 'e held the follo'in+D

It appears that the -rea had been +rantin+ the members of the $ssociation, every month, Jt'o days oFJ days in 'hichthey rendered no service, altho+h they received salary for the 'hole month. Said -rea contended belo' that the paycorrespondin+ to said / day vacation corresponded to the 'a+es for e;tra 'or!. The cort re?ected the contention, %iteproperly 'e believe, becase in the contract there 'as no a+reement to that eFect and sch a+reement, if any, 'oldprobably be contrary to the provisions of the :i+ht(

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The principle of estoppel and the laches cannot 'ell be invo!ed a+ainst the $ssociation. In the 8rst place, it 'old be contrary to thespirit of the :i+ht * and section /> of this title shall be liable to the employee or employees aFected in the amont of theirnpaid minimm 'a+es or their npaid overtime compensation as the case may be,J @ a provision not incorporated inCommon'ealth $ct o. 444, or :i+ht(

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INTERNATIONAL PHARMACEUTICAL", INC.,petitioner, vs. NATIONAL LAOR RELATION" COMMI""ION /NLRC0, OURTH!II"ION, #$% !R. IRGINIA CAMACHO UINTIA, respondents.

! E C I " I O N

MEN!O3A,J.&

This is a petition for certiorarito set aside the decision of the ational 6abor elations Commission 'hich aGrmed in totothedecision of the 6abor $rbiter, 8ndin+ petitioner +ilty of the ille+al dismissal of private respondent 7ir+inia Camacho intia, as 'elas its resoltion denyin+ reconsideration.

#etitioner International #harmaceticals, Inc. AI#IB is a corporation en+a+ed in the manfactre, prodction and sale opharmacetical prodcts. In March 190), it employed private respondent 7ir+inia Camacho intia as Medical 2irector of its esearchand 2evelopment department, replacin+ one 2iana 7illaraa.N1The +overnment, in that year, lanched a pro+ram encora+in+ thedevelopment of herbal medicine and oFerin+ incentives to interested parties. #etitioner decided to ventre into the development oherbal medicine, altho+h it is no' alle+ed that this 'as merely e;perimental, to 8nd ot if it 'old be feasible to inclde herbalmedicine in its bsiness.N/One of the +overnment re%irements 'as the hirin+ of a pharmacolo+ist. #etitioner avers that it 'as onlyfor this prpose that private respondent 'as hired, hence its contention that private respondent 'as a pro?ect employee.

The contract of employment provided for a term of one year from the date of its e;ection onMarch 19, 190), sb?ect to rene'aby mtal consent of the parties at least thirty days before its e;piration. It provided for a monthly compensation of #4,>>>.>>. It 'asa+reed that intia cold contine teachin+ at the Ceb 2octors , the 6abor $rbiter fond private respondent to have been ille+ally dismissed. >> as separation pay.

On appeal, the 6C aGrmed the rlin+ in a decision dated May /*, 199/. #etitioner moved for reconsideration, bt its motion'as denied for lac! of merit. The 6C directed the 6abor $rbiter to condct a hearin+ to determine 'hether reinstatement 'asfeasible.

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$rt. /0>. Reular and casual e#plo$#ent. ( The provisions of 'ritten a+reement to the contrary not'ithstandin+ and re+ardless ofthe oral a+reement of the parties, an employment shall be deemed to be re+lar 'here the employee has been en+a+ed to performactivities 'hich are sally necessary or desirable in the sal bsiness or trade of the employer e;cept 'here the employment hasbeen 8;ed for a speci8c pro?ect or nderta!in+, the completion or termination of 'hich has been determined at the time of theen+a+ement of the employee or 'here the 'or! or service to be performed is seasonal in natre and the employment is for thedration of the season.

$n employment shall be deemed to be casal if it is not covered by the precedin+ para+raphD #rovided, That any employee 'ho hasrendered at least one year of service, 'hether sch service is continos or bro!en, shall be considered a re+lar employee 'ithrespect to the activity in 'hich he is employed and his employment shall contine 'hile sch activity e;ists.

In rent (c/ool, Inc. !. 0a#ora,N9it 'as held that altho+h 'or! done nder a contract is necessary and desirable in relation tothe sal bsiness of the employer, a contract for a 8;ed period may nonetheless be made so lon+ as it is entered into freely,volntarily and !no'in+ly by the parties. $pplyin+ this rlin+ to the case at bar, the 6C held that the 'ritten contract bet'eenpetitioner and private respondent 'as valid, bt, after its e;piration on March 10, 1904, as the petitioner had decided to contine herservices, it mst respect the secrity of tenre of the employee in accordance 'ith $rt. /0>. It saidD

To or mind, 'hen complainant 'as allo'ed to contine 'or!in+ 'ithot the bene8t of a contract after the e;piration of the one yearperiod provided in their 'ritten contract, that act completely chan+ed the comple;ion of the relationship bet'een the parties.

The 6C cited the follo'in+ facts to ?stify its rlin+D intia 'as contined as Medical 2irector and even +iven the additionafnction of company physician after the e;piration of the ori+inal contract she ndertoo! varios civic activities for and in behalf ofpetitioner, sch as condctin+ free clinics and +ivin+ ot I#I prodcts she did 'or! 'hich 'as necessary and desirable in relation tothe trade or bsiness of petitioner and her employment lasted for more than A)B three years.

#etitioner contendsD

A1B that the 6Cs reliance on $rt. /0> is clearly contrary to this Corts decisions

A/B that private respondents tas!s are really not necessary and desirable to the sal bsiness of petitioner

A)B that there is clearly no le+al or factal basis to spport respondent 6Cs reliance on the absence of a ne' 'ritten contract asindicatin+ that respondent intia became a re+lar employee.N1>

#etitioners 8rst +rond is that the rlin+ of the 6C is contrary to the rent (c/ool decision. sholdnot be so interpreted as to render employment contracts 'ith a 8;ed term invalid. -t the 6C precisely pheld the validity of thecontract in accordance 'ith the rent (c/ool case. Indeed, the validity of the 'ritten contract is not in isse in this case. Ehat is inisse is 'hether private respondent did not become a re+lar employee after the e;piration of the 'ritten contract on March 10, 1904on the basis of the facts pointed ot by the 6C, simply becase there 'as in the be+innin+ a contract of employment 'ith a 8;edterm.

#etitioner also invo!es the rlin+ in (iner (e1in Mac/ine !. 'rilon N11in 'hich it 'as statedD

The de8nition that re+lar employees are those 'ho perform activities 'hich are desirable and necessary for the bsiness of theemployer is not determinative in this case. $ny a+reement may provide that one party shall render services for and in behalf ofanother for a consideration Ano matter ho' necessary for the latters bsinessB even 'ithot bein+ hired as an employee. This isprecisely tre in the case of an independent contractorship as 'ell as in an a+ency a+reement. The Cort a+rees 'ith the petitionersar+ment that $rticle /0> is not the yardstic! for determinin+ the e;istence of an employment relationship becase it merelydistin+ishes bet'een t'o !inds of employees, i.e., re+lar employees and casal employees, for prposes of determinin+ the ri+htof an employee to certain bene8ts, to ?oin or form a nion, or to secrity of tenre. $rticle /0> does not apply 'here the e;istence ofan employment relationship is in dispte.

#etitioner ar+esD

:ven assmin+ ar+endo that respondent intia 'as performin+ tas!s 'hich 'ere necessary and desirable to the main bsiness ofpetitioner, said standard cannot apply since said $rticle merely distin+ishes bet'een re+lar and casal employment for theprpose of determinin+ entitlement to bene8ts nder the 6abor Code. In this case, respondent intias alleed status asreulare#plo$ee /as precisel$ been disputedby petitioner. $nd, as this

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#etitioners second point is that private respondents tas!s 'ere not really necessary and desirable in respect of the salbsiness of petitioner, the 'or! done by intia bein+ on a temporary basis only.N1)$ccordin+ to petitioner, intias en+a+ement 'asonly for the dration of its herbal medicine development pro?ect. In addition, petitioner points ot that private respondent 'as notre%ired to !eep 8;ed oGce hors and this arran+ement contined even after the e;piration of the 'ritten contract, ths indicatin+the temporary natre of her employment.

#etitioners alle+ations are contrary to the factal 8ndin+s of both the 6C and the 6abor $rbiter, particlarly their 8ndin+s thatshe 'as the head of petitioners esearch and 2evelopment department that in addition, she performed the fnction of companyphysician and that she ndertoo! varios civic activities in behalf of petitioner and that this en+a+ement lasted for more than threeyears A190) ( 190*B.N14Certainly, as the 6C observed, these facts sho' complainant 'or!in+ not as consltant bt as a re+laremployee albeit a mana+erial one.N15It shold be added that intia 'as hired to replace one 2iana 7illaraa,N1*'hich s++ests thathe position to 'hich she 'as appointed by petitioner 'as an e;istin+ one, so mch so that after the termination ointias employment, somebody else A#a Eon+B 'as appointed in her place.N1If private respondents employment 'as for aparticlar pro?ect 'hich had alle+edly been terminated, 'hy 'old there be a need to replace herK

Ee are not prepared to thro' overboard the 8ndin+s of both the 6C and the 6abor $rbiter on the matter. These are essentiallyfactal matters 'hich are 'ithin the competence of the labor a+encies to determine. Their 8ndin+s are accorded by this Cort respectand 8nality if, as in this case, they are spported by sbstantial evidence .N10

Indeed, the terms of the 'ritten employment contract are clearD

. . . That the IST #$T= is a manfactrer of medicines and pharmacetical preparations, 'hile the S:CO2 #$T= is a 2octor ofMedicine and #harmacolo+ist of lon+ standin+

That the IST #$T= desires to hire the S:CO2 #$T= as Medical 2irector of its esearch and 2evelopment department, 'hich thelatter accepts, nder the follo'in+ terms and conditions, to 'itD

1. That the S:CO2 #$T= shall perform andQor case the performance of the follo'in+D

aB Microbiolo+ical research and testin+

bB Clinical research and testin+

cB #rove and spport irst #artys claims in its brochres, literatre and advertisements

dB e+ister 'ith and case the approval by ood and 2r+ $dministration of all pharmacetical and medical preparations developedand tested by the irst #artys 2 department and

eB To do and perform sch other dties as may, from time to time, be assi+ned by the irst #arty consonant to and in accord 'ith the

position herein conferred. . . .

There is no mention 'hatsoever of any pro?ect or of any consltancy in the contract. $s aptly observed by the Solicitor eneralthe dties of intia as provided for in the contract re?ect any notion of consltancy. Clearly, she 'as hired as Medical 2irector of theesearch and 2evelopment department of petitioner company and not as consltant nor for any particlar pro?ect. The 'or! sheperformed 'as manifestly necessary and desirable to the sal bsiness of petitioner, considerin+ that it is en+a+ed in themanfactre and prodction of medicinal preparations. #etitioner itself admits that research and development are part of its bsiness.N19

Ee a+ree 'ith the 6abor $rbiter that the fact that she 'as not re%ired to report at a 8;ed hor or to !eep 8;ed hors of 'or!does not detract from her stats as a re+lar employee. $s petitioner itself admits, intia 'as a mana+erial employee N/>andtherefore not covered by the 6abor Code provisions on hors of 'or!. Ehat this Cort said in once case N/1is aproposD

The primary standard, . . . of determinin+ a re+lar employment is the reasonable connection bet'een the particlar activityperformed by the employee in relation to the sal bsiness or trade of the employer. The test is 'hether the former is sally

necessary or desirable in the sal bsiness or trade of the employer. The connection can be determined by considerin+ the natre ofthe 'or! performed and its relation to the scheme of the particlar bsiness or trade in its entirety. $lso, if the employee has beenperformin+ the ?ob for at least one year, even if the performance is not continos or merely intermittent, the la' deems therepeated and continin+ need for its performance as sGcient evidence of the necessity if not indispensability of that activity to thebsiness.

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#etitioner +oes on to state his third point that there is clearly no le+al or factal basis to spport respondent 6Cs reliance onthe absence of a ne' 'ritten contract as indicatin+ that respondent intia became a re+lar employee.N//In spport, the petitionea+ain cites the rent (c/oolcaseN/)'here it 'as reco+nied that term contracts can be made orally. N/4, sho' that private respondents'or! 'as in prsance of the bsiness of petitioner.

(econd. #rescindin+ from the premise that private respondent 'as a pro?ect employee, petitioner claims that becase it haddiscontined its herbal medicine pro?ect after it had been sho'n not to be viable, private respondents employment had to beterminated, too.

Ee have already sho'n 'hy this claim has no basis and no merit. #etitioner 'as nable to prove that it had actally nderta!ena pro?ect. #rivate respondents contract 'ill be searched in vain for any mention of a pro?ect. Ehat it states is that intiasemployment 'as one for a de8nite period, not for a pro?ect as petitioner 'old have it. $ pro?ect employment is one 'here theemployment has been 8;ed for a speci8c pro?ectQnderta!in+, the completion or termination of 'hich has been determined at thetime of the en+a+ement of the employee.N/5intias en+a+ement after the e;piration of the 'ritten contract cannot be said to havebeen pre(determined becase, if petitioners other claim is to be believed, it 'as essentially contin+ent pon the feasibility of herbamedicine as part of petitioners bsiness and for as lon+ as the herbal medicine development 'as bein+ prsed by it.

It follo's from the conclsion that private respondent intia 'as a re+lar employee that she cold only be dismissed for ?stor athoried case.N/*The records are bereft of any evidence sho'in+ the e;istence of any of the speci8ed cases in the 6aborCode. It may be that an employer is allo'ed 'ider discretion in terminatin+ employment in respect of mana+erial personnecompared to ran!(and(8le employees, and that sch mana+erial employees can be separated from the service for loss of con8denceN/Sections /(*, le PI7, -oo! 7 les and e+lations Implementin+ the 6abor Code as amendedB.ailre to comply 'ith there%irements taints the dismissal 'ith ille+ality. This procedre is mandatory in the absence of 'hich, any ?d+ment reached bymana+ement is void and ine;istent.ATin+son, 3r. v. 6C, 105 SC$ 490 N199> ational Service Corporation v. 6C, 1*0 SC$ 1//N1900 Fy v. 6C, 10/ SC$ )*5 N199>.

The memoranda dated 3ly 1/, 190* and 3ly 1>, 190*, copies of 'hich 'ere frnished the complainant, informin+ her of thetermination of her contract and the appointment of a replacement, 'ithot apprisin+ her of the particlar acts or omissions for 'hichher dismissal 'as so+ht, do not sGce to satisfy the re%irements of notice. or 'as petitioner +iven the opportnity to be heard.N)>Conse%ently, her dismissal from the service 'as ille+al.

-/ird.#etitioner contends that the reinstatement of private respondent is not feasible becase the position 'hich she held 'asabolished on accont of its decision to discontine its herbal medicine development pro?ect and that, in any event, becase theposition is a sensitive one 'hich needs an employee in 'hom the petitioner has fll faith and con8dence. It is also contended thatreinstatement 'old be ntenable considerin+ the anta+onism en+endered as a reslt of this case. N)1

http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn22http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn22http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn23http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn24http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn24http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn25http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn25http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn26http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn26http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn27http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn27http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn28http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn29http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn29http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn30http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn31http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn22http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn23http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn24http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn25http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn26http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn27http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn28http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn29http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn30http://sc.judiciary.gov.ph/jurisprudence/1998/mar1998/106331.htm#_edn31

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$s re+ards the claim that the position has already been abolished and, therefore, reinstatement is impossible, sGce it to statethat the factal 8ndin+s of the 6abor $rbiter belie this. $ replacement for private respondent 'as appointed t'o A/B days prior to hertermination. If the position had been abolished, there 'old have been no necessity for a replacement.

-t 'e a+ree that becase of anta+onism +enerated by this case and the private respondents o'n preference for separationpay, reinstatement 'old no lon+er be feasible. It 'old ths be in the best interest of the parties to order the payment of separationpay in lie of reinstatement. Sch an amont shold not be e%ivalent to one(half month salary for every year of service only, asordered by the 6abor $rbiter and aGrmed by the 6C bt, in accordance 'ith or decisions,N)/it mst be e%ivalent to one monthsalary for every year of service.

#rivate respondent shold be +iven separation pay and bac!'a+es in accordance 'ith the 6abor Code. The bac!'a+es

ho'ever, are to be compted only for three years from 3ly 1/, 190*, the date of her dismissal, 'ithot dedction o%ali8cation, considerin+ that the dismissal 'as madebefore the eFectivity on March /1, 1909, of .$. o. *15, 'hich provides forthe payment of fll bac!'a+es to employees 'ho are ille+ally dismissed. N))

E btthat 'hen he reported to 'or! at the end of sch period 'ith a health clearance, he 'as told to come bac! another time as he coldnot be reinstated immediately. Thereafter, petitioner refsed to +ive him 'or!. or this reason, private respondent as!ed for acerti8cate of employment from petitioner on September *, 199>. ,petitioner refsed to isse the certi8cate nless he sbmitted his resi+nation. Since private respondent refsed to sbmit sch letternless he 'as +iven separation pay, petitioner prevented him from enterin+ the premises. 2

#etitioner, on the other hand, alle+ed that it 'as private respondent 'ho actally abandoned his 'or!. It claimed that the latter failedto report for 'or! after his leave had e;pired and 'as, in fact, absent 'ithot leave for three months ntil $+st /0, 1990. #etitionerfrther claims that, nonetheless, it assi+ned private respondent to another vessel, bt the latter 'as left behind on September 1,199>. Thereafter, private respondent as!ed for a certi8cate of employment on September * on the prete;t that he 'as applyin+ toanother 8shin+ company. On September 1>, 199>, he refsed to +et the certi8cate and resi+n nless he 'as +iven separation pay. )

On ebrary 10, 199/, 6abor $rbiter $rthr 6. $mansec rendered a decision disposin+ of the case as follo'sD

$CCO2I6=, respondents are ordered to reinstate complainant 'ith bac!'a+es, pay him his 1)th month pay andincentive leave pay for 199>.

$ll other claims are dismissed.

SO O2::2.

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#etitioner appealed to the 6C 'hich, on $+st )>, 199), dismissed the appeal for lac! of merit. The 6C dismissed petitioner"sclaim that it cannot be held liable for service incentive leave pay by 8shermen in its employ as the latter spposedly are J8eldpersonnelJ and ths not entitled to sch pay nder the 6abor Code. 4

The 6C li!e'ise denied petitioner"s motion for reconsideration of its decision in its order dated October /5, 199).

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$ccordin+ly, it 'as held in the aforementioned case that salesmen of estle #hilippines, Inc. 'ere 8eld personnelD

It is ndispted that these sales personnel start their 8eld 'or! at 0D>> a.m. after havin+ reported to the oGce andcome bac! to the oGce at 4D>> p.m. or 4D)> p.m. if they are Ma!ati(based.

The petitioner maintains that the period bet'een 0D>> a.m. to 4D>> or 4D)> p.m. comprises the sales personnel"s'or!in+ hors 'hich can be determined 'ith reasonable certainty.

The Cort does not a+ree. The la' re%ires that the actal hors of 'or! in the 8eld be reasonably ascertained. Thecompany has no 'ay of determinin+ 'hether or not these sales personnel, even if they report to the oGce before0D>> a.m. prior to 8eld 'or! and come bac! at 4D)> p.m., really spend the hors in bet'een in actal 8eld 'or!.

In contrast, in the case at bar, drin+ the entire corse of their 8shin+ voya+e, 8shermen employed by petitioner have no choice btto remain on board its vessel. $ltho+h they perform non(a+ricltral 'or! a'ay from petitioner"s bsiness oGces, the fact remainsthat thro+hot the dration of their 'or! they are nder the eFective control and spervision of petitioner thro+h the vessel"spatron or master as the 6C correctly held. 8

either did petitioner +ravely abse its discretion in rlin+ that private respondent had constrctively been dismissed by petitioner.Sch factal 8ndin+ of both the 6C and the 6abor $rbiter is based not only on the pleadin+s of the parties bt also on a medicalcerti8cate of 8tness 'hich, contrary to petitioner"s claim private respondent presented 'hen he reported to 'or! on May /0,199>.9$s the 6C heldD

$nent +ronds AaB and AbB of the appeal, the respondent, in a ntshell, 'old li!e s to believe that the $rbiterabsed his discretion Aor seriosly erred in his 8ndin+s of factsB in +ivin+ credence to the factal version of thecomplainant. -t it is settled that JAEBhen confronted 'ith conHictin+ versions of factal matters,J the 6abor $rbiter

has the Jdiscretion to determine 'hich party deserves credence on the basis of evidence received.J NelmartIndstries A#hils.B, Inc. vs. 6eo+ardo, 155 SC$ 4>), )>9, 6(>544, ovember 5, 190. $nd besides, it is settled inthis ?risdiction that Jto constitte abandonment of position, there mst be concrrence of the intention to abandonand some overt acts from 'hich it may be inferred that the employee concerned has no more interest in 'or!in+JA2a+pan -s Co., Inc. vs. 6C, 191 SC$ )/0B, and that the 8lin+ of the complaint 'hich as!ed for reinstatementpls bac!'a+es Aecord, p. />B is inconsistent 'ith respondents" defense of abandonment A

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petitioner $le;ander &y, sspended 6ebati%e apparently for ille+al se of company vehicle. :ven so, 6ebati%e reported for 'or! thene;t day bt he 'as prohibited from enterin+ the company premises.

On 3anary /*, />>>, 6ebati%e so+ht the assistance of the 2epartment of 6abor and :mployment A2O6:B #blic $ssistance andComplaints &nit concernin+ the nonpayment of his overtime pay. $ccordin+ to 6ebati%e, t'o days later, he received a tele+ram frompetitioners re%irin+ him to report for 'or!. Ehen he did the ne;t day, 3anary /9, />>>, $le;ander as!ed him 'hy he 'as claimin+overtime pay. 6ebati%e e;plained that he had never been paid for overtime 'or! since he started 'or!in+ for the company. , />>>, 6ebati%e 8led a complaint for ille+al dismissal and nonpayment of overtime pay. The 6abor $rbiter fond that

6ebati%e 'as ille+ally dismissed, and ordered his reinstatement and the payment of his fll bac! 'a+es, 1)th month pay, serviceincentive leave pay, and overtime pay. The dispositive portion of the decision is %oted herein in fll, as follo'sD

E1Q/5Q>> ( 1>Q)1Q>> 9./) mos.

# //).5> ; /* ; 9./) # 5),*)5.5)

11Q>1Q>> U >*Q/*Q>1 .0* mos.

# /5>.>> ; /* ; .0* 51,>9>.>> # 1>4,/5.5)

1)th Month #ayD 1Q1/ of # 1>4,/5.5) 0,/.1)

Service Incentive 6eave #ay

>1Q/5Q>> U 1>Q)1Q>> 9./) mos.

# //).5> ; 5Q1/ ; 9./) # 059.54

11Q>1Q>> U >*Q/*Q>1 .0* mos.

# /5>.>> ; 5Q1/ ; .0* N010.5 1,*0./9 115,1)>.95

bB Overtime #ayD A) horsQdayB

>)Q/>Q9 U 4Q)>Q9 1.)* mos.

# 10>Q0 ; 1./5 ; ) ; /* ; 1.)* # /,90).5>

>5Q>1Q9 U >/Q>5Q90 9.1* mos.

# 105Q0 ; 1./5 ; ) ; /* ; 9.1* />,*5/.94

>/Q>*Q90 U 1>Q)>Q99 />.0) mos.

# 190Q0 ; 1./5 ; ) ; /* ; N/>.0) 5>,/*5.)9

1>Q)1Q99 U >1Q/4Q>> /.0> mos.

# //).5>Q0 ; 1./5 ; ) ; /* ; /.0> ,*/*.94 01,5/0.

TOT$6 $E$2 # 19*,*59./

SO O2::2.5

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On appeal, the 6C reversed the 6abor $rbiter and dismissed the complaint for lac! of merit. The 6C held that there 'as nodismissal to spea! of since 6ebati%e 'as merely sspended. rther, it fond that 6ebati%e 'as a 8eld personnel, hence, notentitled to overtime pay and service incentive leave pay. 6ebati%e so+ht reconsideration bt 'as denied.

$++rieved, 6ebati%e 8led a petition for certiorari 'ith the Cort of $ppeals. 7a1p/i7.net

The Cort of $ppeals, in reversin+ the 6C decision, reasoned that 6ebati%e 'as sspended on 3anary /4, />>> bt 'as ille+allydismissed on 3anary /9, />>> 'hen $le;ander told him to loo! for another ?ob. It also fond that 6ebati%e 'as not a 8eld personneland therefore entitled to payment of overtime pay, service incentive leave pay, and 1)th month pay.

It reinstated the decision of the 6abor $rbiter as follo'sD

=HEREORE, premises considered, the decision of the 6C dated / 2ecember />>/ is hereby REER"E!and the 6abor $rbitersdecision dated / 3ne />>1 REIN"TATE!.

SO O2::2.*

#etitioners moved for reconsideration bt it 'as denied.

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It is immaterial that 6ebati%e had 8led a complaint for nonpayment of overtime pay the day he 'as sspended by mana+ementsnilateral act. Ehat matters is that he 8led the complaint for ille+al dismissal on March />, />>>, after he 'as told not to report for'or!, and his 8lin+ 'as 'ell 'ithin the prescriptive period allo'ed nder the la'.

On the second isse, $rticle 0/ of the 6abor Code is decisive on the %estion of 'ho are referred to by the term J8eld personnel.J Itprovides, as follo'sD

ART. 82. Coverage. ( The provisions of this title NEor!in+ Conditions and est #eriods shall apply to employees in all establishmentsand nderta!in+s 'hether for pro8t or not, bt not to +overnment employees, mana+erial employees, 8eld personnel, members ofthe family of the employer 'ho are dependent on him for spport, domestic helpers, persons in the personal service of another, and'or!ers 'ho are paid by reslts as determined by the Secretary of 6abor in appropriate re+lations.

; ; ; ;

Jield personnelJ shall refer to non(a+ricltral employees 'ho re+larly perform their dties a'ay from the principal place ofbsiness or branch oGce of the employer and 'hose actal hors of 'or! in the 8eld cannot be determined 'ith reasonable certainty.

InAuto us -ransport ($ste#s, Inc. !. autista,1/this Cort emphasied that the de8nition of a J8eld personnelJ is not merelyconcerned 'ith the location 'here the employee re+larly performs his dties bt also 'ith the fact that the employees performanceis nspervised by the employer. Ee held that 8eld personnel are those 'ho re+larly perform their dties a'ay from the principalplace of bsiness of the employer and 'hose actal hors of 'or! in the 8eld cannot be determined 'ith reasonable certainty. Ths,in order to determine 'hether an employee is a 8eld employee, it is also necessary to ascertain if actal hors of 'or! in the 8eld canbe determined 'ith reasonable certainty by the employer. In so doin+, an in%iry mst be made as to 'hether or not the employeestime and performance are constantly spervised by the employer.1)

$s correctly fond by the Cort of $ppeals, 6ebati%e is not a 8eld personnel as de8ned above for the follo'in+ reasonsD A1B companydrivers, incldin+ 6ebati%e, are directed to deliver the +oods at a speci8ed time and place A/B they are not +iven the discretion tosolicit, select and contact prospective clients and A)B ar :ast issed a directive that company drivers shold stay at the clientspremises drin+ trc!(ban hors 'hich is from 5D>> to 9D>> a.m. and 5D>> to 9D>> p.m. 14:ven petitioners admit that the drivers canreport early in the mornin+, to ma!e their deliveries, or in the afternoon, dependin+ on the prodction of animal feeds. 152rivers, li!e6ebati%e, are nder the control and spervision of mana+ement oGcers. 6ebati%e, therefore, is a re+lar employee 'hose tas!s aresally necessary and desirable to the sal trade and bsiness of the company. Ths, he is entitled to the bene8ts accorded tore+lar employees of ar :ast, incldin+ overtime pay and service incentive leave pay.

ote that all money claims arisin+ from an employer(employee relationship shall be 8led 'ithin three years from the time the caseof action accred other'ise, they shall be forever barred.1*rther, if it is established that the bene8ts bein+ claimed have been'ithheld from the employee for a period lon+er than three years, the amont pertainin+ to the period beyond the three(yearprescriptive period is therefore barred by prescription. The amont that can only be demanded by the a++rieved employee shall belimited to the amont of the bene8ts 'ithheld 'ithin three years before the 8lin+ of the complaint. 1

6ebati%e timely 8led his claim for service incentive leave pay, considerin+ that in this sitation, the prescriptive period commencesat the time he 'as terminated.10On the other hand, his claim re+ardin+ nonpayment of overtime pay since he 'as hired in March199* is a diFerent matter. In the case of overtime pay, he can only demand for the overtime pay 'ithheld for the period 'ithin threeyears precedin+ the 8lin+ of the complaint on March />, />>>. , />>) of the Cort of $ppeals in C$(.. S#o. *19* and itsesoltiondated March 15, />>4 are AIRME! >: MO!IICATIONto the eFect that the case ishereby REMAN!E!to the 6abor $rbiter for frther proceedin+s to determine the e;act amont of overtime pay and other monetarybene8ts de 3immy 6ebati%e 'hich herein petitioners shold pay 'ithot frther delay.

Costs a+ainst petitioners.

"O OR!ERE!.

LAOR CONGRE"" ?. NLRC

! E C I " I O N

!AI!E, JR.,J.&

In this special civil action for certiorarinder le *5, petitioners see! to reverse the /9 March 1995 resoltion N1of the ationa6abor elations Commission A6CB in 6C $- III Case o. >1(19*4(91 'hich aGrmed the 2ecision N/of 6abor $rbiter $riel C. Santosdismissin+ their complaint for tter lac! of merit.

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The antecedents of this case as smmaried by the OGce of the Solicitor eneral in its Manifestation and Motion in 6ie oComment,N)are as follo'sD

The 99 persons named as petitioners in this proceedin+ 'ere ran!(and(8le employees of respondent :mpire ood #rodcts, 'hichhired them on varios dates A#ara+raph 1, $nne; $ of #etition, $nne; - #a+e /, $nne; of #etitionB.

#etitioners 8led a+ainst private respondents a complaint for payment of money claimNs and for violation of labor standardNs la'sA6C Case o. $-(111(1>(101(9>B. They also 8led a petition for direct certi8cation of petitioner 6abor Con+ress of the #hilippinesas their bar+ainin+ representative ACase o. >)>>(9>1>(&(>>5B.

On October /), 199>, petitioners represented by 6C# #resident -eni+no -. avarro, Sr. and private respondents onalo Rehyen+ and:velyn Rehyen+ in behalf of :mpire ood #rodcts, Inc. entered into a Memorandm of $+reement 'hich provided, amon+ others, thefollo'in+D

1. That in connection 'ith the pendin+ #etition for 2irect Certi8cation 8led by the 6abor Con+ress 'ith the 2O6:, Mana+ement of the:mpire ood #rodcts has no ob?ection Nto the direct certi8cation of the 6C# 6abor Con+ress and is no' reco+niin+ the 6aborCon+ress of the #hilippines A6C#B and its 6ocal Chapter as the SO6: and :PC6&SI7: -ar+ainin+ $+ent and epresentative for all ran!and 8le employees of the :mpire ood #rodcts re+ardin+ E$:S, (101(9> shallbe considered provisionally 'ithdra'n from the Calendar of the ational 6abor elations CommissionA6CB, 'hile the #etition fordirect certi8cation of the 6C# 6abor Con+ress parties ?ointly move for the direct certi8cation of the 6C# 6abor Con+ress

*. That parties ?ointly and mtally a+reed that pon si+nin+ of this $+reement, no , Mediator $rbiter $ntonio Corte approved the memorandm of a+reement and certi8ed 6C# asthe sole and e;clsive bar+ainin+ a+ent amon+ the ran!(and(8le employees of :mpire ood #rodcts for prposes of collectivebar+ainin+ 'ith respect to 'a+es, hors of 'or! and other terms and conditions of employment A$nne; - of #etitionB.

On ovember 9, 199>, petitioners thro+h 6C# #resident avarro sbmitted to private respondents a proposal for collectivebar+ainin+ A$nne; C of #etitionB.

On 3anary /), 1991, petitioners 8led a complaint doc!eted as 6C Case o. $-(III(>1(19*4(91 a+ainst private respondents forD

a. &nfair 6abor #ractice by 'ay of Ille+al 6oc!ot andQor 2ismissal

b. &nion bstin+ thr

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e. $ctal, Moral and :;emplary 2ama+es. A$nne; 2 of #etitionB

$fter the sbmission by the parties of their respective position papers and presentation of testimonial evidence, 6abor $rbiter $riel C.Santos absolved private respondents of the char+es of nfair labor practice, nion bstin+, violation of the memorandm ofa+reement, nderpayment of 'a+es and denied petitioners prayer for actal, moral and e;emplary dama+es. 6abor $rbiter Santos,ho'ever, directed the reinstatement of the individal complainantsD

The ndersi+ned 6abor $rbiter is not oblivios to the fact that respondents have violated a cardinal rle in every establishment that apayroll and other papers evidencin+ hors of 'or!, payments, etc. shall al'ays be maintained and sb?ected to inspection andvisitation by personnel of the 2epartment of 6abor and :mployment. $s sch penalty, respondents shold not escape liability for thistechnicality, hence, it is proper that all individal complainants e;cept those 'ho resi+ned and e;ected %itclaimNs and releases

prior to the 8lin+ of this complaint shold be reinstated to their former positionNs 'ith the admonition to respondents that anyharassment, intimidation, coercion or any form of threat as a reslt of this immediately e;ectory reinstatement shall be dealt 'ithaccordin+ly.

SO O2::2. A$nne; of #etitionB

On appeal, the ational 6abor elations Commission vacated the 2ecision dated $pril 14, 19/ Nsic and remanded the case to the6abor $rbiter for frther proceedin+s for the follo'in+ reasonsD

The 6abor $rbiter, thro+h his decision, noted that ;;; complainant did not present any sin+le 'itness 'hile respondent presentedfor A4B 'itnesses in the persons of onalo Rehyen+, Orlando Cairo, :velyn Rehyen+ and :lvira -la+an ;;; Ap. 10), ecordsB, that;;; complainant before the ational 6abor elations Commission mst prove 'ith de8niteness and clarity the oFense char+ed. ;;;Aecord, p. 10)B that ;;; complainant failed to specify nder 'hat provision of the 6abor Code particlarly $rt. /40 did respondentsviolate so as to constitte nfair labor practice ;;; Aecord, p. 10)B that complainants failed to present any 'itness 'ho maydescribe in 'hat manner respondents have committed nfair labor practice ;;; Aecord, p. 105B that ;;; complainant 6C# failed to

present anyone of the so(called 99 complainants in order to testify 'ho committed the threats and intimidation ;;; Aecord, p. 105B.

&pon revie' of the mintes of the proceedin+s on record, ho'ever, it appears that complainant presented 'itnesses, namely,-:IO $7$O, 3. A/0 ebrary 1991, :CO2, p. 91 0 March 1991, :CO2, p. 9/, 'ho adopted its #OSITIO #$#: $2COSO6I2$T:2 $I2$7IT, as :;hibit $ and the anne;es thereto as :;hibit -, -(1 to -(9, inclsive. Mintes of the proceedin+s onrecord sho' that complainant frther presented other 'itnesses, namelyD :6I2$ -$SI6IO A1) March 1991, :CO2, p. 9)6O&2:S #$TI66O, M$I: #I6$C, 6:I: $CI$ A1* $pril 1991, ecord, p. 9*, see bac! portion thereof / May 1991, ecord, p.1>/ 1* May 1991, ecord, p. 1>) 11 3ne 1991, ecord, p. 1>5B. ormal oFer of 2ocmentary and Testimonial :vidence 'as madeby complainant on 3ne /4, 1991 Aecord, p. 1>*(1>9B

The 6abor $rbiter mst have overloo!ed the testimonies of some of the individal complainants 'hich are no' on record. Otherindividal complainants shold have been smmoned 'ith the end in vie' of receivin+ their testimonies. The complainants shold beaForded the time and opportnity to flly sbstantiate their claims a+ainst the respondents. 3d+ment shold be rendered only basedon the conHictin+ positions of the parties. The 6abor $rbiter is called pon to consider and pass pon the isses of fact and la' raisedby the parties.

To'ard this end, therefore, it is Or considered vie' Nthat the case shold be remanded to the 6abor $rbiter of ori+in for frtherproceedin+s.A$nne; < of #etitionB

In a 2ecision dated 3ly /, 1994, 6abor $rbiter Santos made the follo'in+ determinationD

Complainants failed to present 'ith de8niteness and clarity the particlar act or acts constittive of nfair labor practice.

It is to be borne in mind that a declaration of nfair labor practice connotes a 8ndin+ of prima facie evidence of probability that acriminal oFense may have been committed so as to 'arrant the 8lin+ of a criminal information before the re+lar cort. is concerned, both parties a+reed thatD

/ ( That 'ith re+ards Nsic to the 6C Case o. $- III(1>(101(9> pendin+ 'ith the 6C, parties ?ointly andmtally a+reed that the isses thereof shall be discssed by the parties and resolveNd drin+ the ne+otiationof the C-$.

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The afore%oted provision does not spea! of Nan obli+ation on the part of respondents bt on a resoltory condition that may occror may not happen. This cannot be made the basis of an imposition of an obli+ation over 'hich the ational 6abor elationsCommission has e;clsive ?risdiction thereof.

$nent the char+e that there 'as nderpayment of 'a+es, the evidence points to the contrary. The enmeration of complainants'a+es in their consolidated $Gdavits of merit and position paper 'hich implies nderpayment has no le+ to stand on in the li+ht ofthe fact that complainants admission that they are piece 'or!ers or paid on apakiaoNbasis i.e. a certain amont for every thosandpieces of cheese crls or other prodcts repac!ed. The only limitation for piece 'or!ers orpakiao'or!ers is that they shold receivecompensation no less than the minimm 'a+e for an ei+ht A0B hor 'or! Nsic. $nd compliance there'ith 'as satisfactorily e;plainedby respondent onalo Rehyen+ in his testimony ATS, p. 1/()>B drin+ the 3ly )1, 1991 hearin+. On cross(e;amination,complainants failed to rebt or deny onalo Rehyen+s testimony that complainants have been even receivin+ more than theminimm 'a+e for an avera+e 'or!ers Nsic. Certainly, a lay 'or!er earns less than the minimm 'a+e bt the same cannot beattribtable to respondents bt to the lay 'or!ers.

inally, the claim for moral and e;emplary dama+es has no le+ to stand on 'hen no malice, bad faith or frad 'as ever proven tohave been perpetated by respondents.

E

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In its Manifestation and Motion in 6ie of Comment, the OGce of the Solicitor eneral AOSB sided 'ith petitioners. It pointed othat the 6abor $rbiter, in 8ndin+ that petitioners abandoned their ?obs, relied solely on the testimony of Secrity ard olando Cairothat petitioners refsed to 'or! on /1 3anary 1991, resltin+ in the spoila+e of cheese crls ready for repac!in+. *(1>9B.

The 6abor $rbiter mst have overloo!ed the testimonies of some of the individal complainants 'hich are no' on record. Otherindividal complainants shold have been smmoned 'ith the end in vie' of receivin+ their testimonies. The complainants sholdNhave been aForded the time and opportnity to flly sbstantiate their claims a+ainst the respondents. 3d+ment shold Nhave

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been rendered only based on the conHictin+ positions of the parties. The 6abor $rbiter is called pon to consider and pass pon theisses of fact and la' raised by the parties.

To'ard this end, therefore, it is Or considered vie' the case shold be remanded to the 6abor $rbiter of ori+in for frtherproceedin+s.

rther, Ee ta!e note that the decision does not contain a dispositive portion or fallo. Sch bein+ the case, it may be 'ell said thatthe decision does not resolve the isses at hand. On another plane, there is no portion of the decision 'hich cold be carried ot by'ay of e;ection.

It may be ar+ed that the last para+raph of the decision may be cate+oried as the dispositive portion thereofD

; ; ; ; ;

The ndersi+ned 6abor $rbiter is not oblivios Nto the fact that respondents have violated a cardinal rle in every establishment thata payroll and other papers evidencin+ horNs of 'or!, payment, etc. shall al'ays be maintained and sb?ected to inspection andvisitation by personnel of the 2epartment of 6abor and :mployment. $s sch penalty, respondents shold not escape liability for thistechnicality, hence, it is proper that all the individal complainants e;cept those 'ho resi+ned and e;ected %itclaimNs andreleaseNs prior to the 8lin+ of this complaint shold be reinstated to their former position 'ith the admonition to respondents thatany harassment, intimidation, coercion or any form of threat as a reslt of this immediately e;ectory reinstatement shall be dealt'ith accordin+ly.

SO O2::2.

It is Or considered vie' that even assmin+ ar+endo that the respondents failed to maintain their payroll and other papers

evidencin+ hors of 'or!, payment etc., sch circmstance, standin+ alone, does not 'arrant the directive to reinstate complainantsto their former positions. It is Na 'ell settled rle that there mst be a 8ndin+ of ille+al dismissal before reinstatement be mandated.

In this re+ard, the 6$-O $-IT: is hereby directed to inclde in his clari8catory decision, after receivin+ evidence, considerin+ andresolvin+ the same, the re%isite dispositive portion. N9

$pparently, the 6abor $rbiter perceived that if not for petitioners, he 'old not have fallen victim to this stin+in+ reb!e at thehands of the 6C. Ths does it appear to s that the 6abor $rbiter, in concldin+ in his / 3ly 1994 2ecision that petitionersabandoned their 'or!, 'as moved by, at 'orst, spite, or at best, lac!adaisically +lossed over petitioners evidence. On this score, 'e8nd the follo'in+ observations of the OS most persasiveD

In 8ndin+ that petitioner employees abandoned their 'or!, the 6abor $rbiter and the 6C relied on the testimony of Secrity ardolando Cairo that on 3anary /1, 1991, petitioners refsed to 'or!.$s a reslt of their failre to 'or!, the cheese crls ready forrepac!in+ on said date 'ere spoiled.

The failre to 'or! for one day, 'hich reslted in the spoila+e of cheese crls does not amont to abandonment of 'or!. In fact t'oA/B days after the reported abandonment of 'or! or on 3anary /), 1991, petitioners 8led a complaint for, amon+ others, nfair laborpractice, ille+al loc!ot andQor ille+al dismissal. In several cases, this

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That petitioner employees are pa!yao or piece 'or!ers does not imply that they are not re+lar employees entitled toreinstatement. #rivate respondent :mpire ood #rodcts, Inc. is a food and frit processin+ company. In Tabas v. CaliforniaManfactrin+ Co., Inc. A1*9 SC$ 49B, this

It may li!e'ise be stressed that the brden of provin+ the e;istence of ?st case for dismissin+ an employee, sch asabandonment, rests on the employer,N11a brden private respondents failed to dischar+e.

#rivate respondents, moreover, in considerin+ petitioners employment to have been terminated by abandonment, violated their

ri+hts to secrity of tenre and constittional ri+ht to de process in not even servin+ them 'ith a 'ritten notice of sch termination.N1/Section /, le PI7, -oo! 7 of the Omnibs les Implementin+ the 6abor Code providesD

S:C. /. 2otice of 'is#issal. ( $ny employer 'ho see!s to dismiss a 'or!er shall frnish him a 'ritten notice statin+ the particlar actsor omission constittin+ the +ronds for his dismissal. In cases of abandonment of 'or!, the notice shall be served at the 'or!ers last!no'n address.

#etitioners are therefore entitled to reinstatement 'ith fll bac! 'a+es prsant to $rticle /9 of the 6abor Code, as amendedby .$. o. *15. evertheless, the records disclose that ta!in+ into accont the nmber of employees involved, the len+th of timethat has lapsed since their dismissal, and the perceptible resentment and enmity bet'een petitioners and private respondents 'hichnecessarily strained their relationship, reinstatement 'old be impractical and hardly promotive of the best interests of the parties. Inlie of reinstatement then, separation pay at the rate of one month for every year of service, 'ith a fraction of at least si; A*B monthsof service considered as one A1B year, is in order.N1)

That bein+ said, the amont of bac! 'a+es to 'hich each petitioner is entitled, ho'ever, cannot be flly settled at this

time. #etitioners, as piece(rate 'or!ers havin+ been paid by the piece,N14there is need to determine the varyin+ de+rees oprodction and days 'or!ed by each 'or!er. Clearly, this isse is best left to the ational 6abor elations Commission.

$s to the other bene8ts, namely, holiday pay, premim pay, 1) thmonth pay and service incentive leave 'hich the labor arbitefailed to rle on bt 'hich petitioners prayed for in their complaint, N15'e hold that petitioners are so entitled to these bene8ts. ThreeA)B factors lead s to conclde that petitioners, altho+h piece(rate 'or!ers, 'ere re+lar employees of private respondents. irst, asto the natre of petitioners tas!s, their ?ob of repac!in+ snac! food 'as necessary or desirable in the sal bsiness of privaterespondents, 'ho 'ere en+a+ed in the manfactre and sellin+ of sch food prodcts second, petitioners 'or!ed for privaterespondents thro+hot the year, their employment not havin+ been dependent on a speci8c pro?ect or season and third, the len+thof timeN1*that petitioners 'or!ed for private respondents. Ths, 'hile petitioners mode of compensation 'as on a per piece basisthe stats and natre of their employment 'as that of re+lar employees.

The les Implementin+ the 6abor Code e;clde certain employees from receivin+ bene8ts sch as ni+httime pay, holiday payservice incentive leaveN1and 1)th month pay,N10inter alia, 8eld personnel and other employees 'hose time and performance isnspervised by the employer, incldin+ those 'ho are en+a+ed on tas! or contract basis, prely commission basis, or those 'ho are

paid a 8;ed amont for performin+ 'or! irrespective of the time consmed in the performance thereof. #lainly, petitioners as piecerate 'or!ers do not fall 'ithin this +rop. $s mentioned earlier, not only did petitioners labor nder the control of private respondentsas their employer, li!e'ise did petitioners toil thro+hot the year 'ith the fl8llment of their %ota as spposed basis focompensation. rther, in Section 0 AbB, le I7, -oo! III 'hich 'e %ote herender, piece 'or!ers are speci8cally mentioned as bein+entitled to holiday pay.

S:C. 0. Holida$ pa$ of certain e#plo$ees.(

AbB Ehere a covered employee is paid by reslts or otpt, sch as payment on piece 'or!, his holiday pay shall not be lessthan his avera+e daily earnin+s for the last seven AB actal 'or!in+ days precedin+ the re+lar holidayD Pro!ided,ho'ever, that in no case shall the holiday pay be less than the applicable stattory minimm 'a+e rate.

In addition, the evised idelines on the Implementation of the 1) thMonth #ay 6a', in vie' of the modi8cations to #.2. o051N19by Memorandm Order o. /0, clearly e;clde the employer of piece rate 'or!ers from those e;empted from payin+1)thmonth pay, to 'itD

/. :P:M#T:2 :M#6O=:S

The follo'in+ employers are still not covered by #.2. o. 051D

d. :mployers of those 'ho are paid on prely commission, bondary or tas! basis, and those 'ho are paid a 8;ed amontfor performin+ speci8c 'or!, irrespective of the time consmed in the performance thereof, e*cept 1/ere t/e1orkers are paid on piece8rate basis in 1/ic/ case t/e e#plo$er s/all rant t/e required 79t/ #ont/ pa$ to suc/1orkers.Aitalics sppliedB

The evised idelines as 'ell as the les and e+lations identify those 'or!ers 'ho fall nder the piece(rate cate+ory as those'ho are paid a standard amont for every piece or nit of 'or! prodced that is more or less re+larly replicated, 'ithot re+ard tothe time spent in prodcin+ the same.N/>

http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn10http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn11http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn11http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn12http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn12http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn13http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn13http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn14http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn14http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn15http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn16http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn17http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn17http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn18http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn18http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn19http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn20http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn20http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn10http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn11http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn12http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn13http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn14http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn15http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn16http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn17http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn18http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn19http://sc.judiciary.gov.ph/jurisprudence/1998/may1998/123938.htm#_edn20

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$s to overtime pay, the rles, ho'ever, are diFerent. $ccordin+ to Sec. /AeB, le I, -oo! III of the Implementin+ les, 'or!ers'ho are paid by reslts incldin+ those 'ho are paid on piece('or!, taka$,pakiao, or tas! basis, if their otpt rates are in accordance'ith the standards prescribed nder Sec. 0, le 7II, -oo! III, of these re+lations, or 'here sch rates have been 8;ed by theSecretary of 6abor in accordance 'ith the aforesaid section, are not entitled to receive overtime pay.1(19*4(91 are hereby S:T $SI2:, andanother is hereby renderedD

1. 2:C6$I petitioners to have been ille+ally dismissed by private respondents, ths entitled to fll bac! 'a+es andother privile+es, and separation pay in lie of reinstatement at the rate of one months salary for every year of service'ith a fraction of si; months of service considered as one year

/. :M$2I the records of this case to the ational 6abor elations Commission for its determination of the bac! 'a+esand other bene8ts and separation pay, ta!in+ into accont the fore+oin+ observations and

). 2I:CTI the ational 6abor elations Commission to resolve the referred isses 'ithin si;ty A*>B days from its receiptof a copy of this decision and of the records of the case and to sbmit to this Cort a report of its compliance hereof'ithin ten A1>B days from the rendition of its resoltion.

Costs a+ainst private respondents.

"O OR!ERE!.

ellosillo, Vitu, Pananiban, and:uisu#bin, ., concr.

G.R. No. 191281 !7+7@7* 5, 2(12

E"T =EAR GARMENT" #$%;o* =ARREN PAR!ILLA,#etitioners,vs.A!ELAI!A . !E LEMO" #$% CECILE M. OCUILLO,espondents.

2 : C I S I O

ILLARAMA,J.:

This is a petition for revie' on certiorari nder le 45 assailin+ the 2ecision1dated ebrary /4, />>9 and esoltion/datedebrary 1>, />1> of the Cort of $ppeals AC$B in C$(.. S# o. 1>/>>/. TheC$ reversed the 2ecision )dated $+st /0, />> of theational 6abor elations Commission A6CB and reinstated the September 5, />>5 2ecision 4of the 6abor $rbiter.

#etitioner -est Eear arments is a sole proprietorship represented by its eneral Mana+er $le; Sitosta. espondents Cecile M.Ocbillo and $delaida -. 2e 6emos 'ere hired as se'ers on piece(rate basis by petitioners on October /, 199) and3ly 1/, 1994,respectively.

On May />, />>4, 2e 6emos 8led a complaint5for ille+al dismissal 'ith prayer for bac!'a+es and other accred bene8ts, separationpay, service incentive leave pay and attorneys fees. $ similar complaint*'as 8led by Ocbillo on 3ne 1>, />>4. -oth alle+ed in theirposition paper that in $+st />>), Sitosta arbitrarily transferred them to other areas of operation of petitioners +arments company,'hich they said amonted to constrctive dismissal as it reslted in less earnin+s for them.

2e 6emos claimed that after t'o months in her ne' assi+nment, she 'as able to ad?st bt Sitosta a+ain transferred her to aJdiFerent operation 'here she cold not earn Nas mch as before becase by(prodcts re%ire lon+ period of time to 8nish.J Sheaverred that the reason for her transfer 'as her refsal Jto render Novertime 'or! p to D>> p.m.J

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previos assi+nment 'as re?ected and she 'as Jconstrained not to report for 'or! as Sitosta had become indiFerent to her since saidtransfer of operation.J She frther alle+ed that her last salary 'as 'ithheld by petitioner company.

On her part, Ocbillo alle+ed that her transfer 'as precipitated by her havin+ Jincrred e;cessive absences since />>1.J > p.m. 'hich she refsed Jbecase she 'asonly paid p to *D/5 p.m.J0

#etitioners denied havin+ terminated the employment of respondents 'ho spposedly committed nmeros absences 'ithot leave

A$EO6B. They claimed that sometime in ebrary />>4, 2e 6emos informed Sitosta that de to personal problem, she intends toresi+n from the company. She then demanded the payment of separation pay. In March />>4, Ocbillo li!e'ise intimated herintention to resi+n and demanded separation pay. Sitosta e;plained to both 2e 6emos and Ocbillo that the company had no e;istin+policy on +rantin+ separation pay, and hence he cold not act on their re%est. 2e 6emos never reported bac! to 'or! since March/>>4, 'hile Ocbillo failed to report for 'or! from October />>4 to the present.

$s to the alle+ation of respondents that the reason for their transfer 'as their refsal to render overtime 'or! ntil D>> p.m.,petitioners asserted that respondents are piece(rate 'or!ers and hence they are not paid accordin+ to the nmber of hors 'or!ed.

On September 5, />>5, 6abor $rbiter $rden S. $nni rendered a 2ecision +rantin+ respondents claims, as follo'sD

E>), t/e$ did not earn as#uc/ as t/e$ earned in t/eir pre!ious assin#ents.They failed to state ho' mch they earned before and after their transfer, if onlyto determine 'hether or not there 'as indeed a dimintion in their earnin+s. rther, it is to be stressed that complainants 'ere paidon a piece rate basis, 'hich simply means that the more otpt, they prodced the more earnin+s they 'ill have. In other 'ords, theearnin+ is dependent pon complainants.

Ee 8nd more credible respondents assertion that +o@l#:$#$ *#$B7* ># # ?#l:% 77*+:7 oB @#$#D7@7$ *7*oD#:?7.espondent company points ot that it is en+a+ed in the bsiness of +arments manfactrin+ as a sb(contractor. That, 7 :$% oB>o* : 7*Bo*@ : %77$%7$ :$o >: : +l:7$ >:+ 7+:F7 7 >o* : # o 7*Bo*@ . $nd, that corollarythereto, 7 >o* o 7 7*Bo*@7% y : 7@loy77 >:ll %77$% o$ 7 >o* 7+:F+#:o$ :$ 7 +o$*#+. Tu, :B+o@l#:$#$ #?7 77$ #:D$7% o %:7*7$ o7*#:o$, : ># u*u#$ o 7 *7u:*7@7$ oB : +o$*#+. ; ; ;.

In frtherance of their defense that complainants 'ere not dismissed, either actal or constrctive in $+st />>), respondentsalle+e that complainants contined to report for 'or! ntil ebrary />>4 for complainant 2e 6emos and $+st />>4 forcomplainant Ocbillo. Ee lend credence to this alle+ation of respondents becase it remains nrebtted by complainants.

It is to be noted that : ># o$ly Non M#y 2(, 2((4 #$% Ju$7 1(, 2((4 # 7 :$#$ +o$ol:%#7% +#7 >7*7 Fl7% bycomplainant 2e 6emos and Ocbillo, respectively. It may not be amiss to state that the date of 8lin+ ?ibe 'ith respondents alle+ationthat sometime in ebrary and March />>4, complainants intimated their intention to resi+n and demanded for payment ofseparation pay bt 'as not favorably acted pon by mana+ement.

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-e that as it may, considerin+ that complainants 'ere not dismissed by respondents, they shold be ordered to report bac! to 'or!'ithot bac!'a+es and for the respondents to accept them.

E>5 is hereby S:T $SI2: and a ne' one entered dismissin+complainants char+e of ille+al dismissal for lac! of merit. >9, the C$ +ranted the petition for certiorari, reversed the rlin+ of the 6C and reinstated the6abor $rbiters decision 'ith modi8cation that the service incentive leave pay shall be e;clded in the comptation of the monetarya'ard. The C$ fond no valid and le+itimate bsiness reason for the transfer order 'hich entailed the redction of respondentsearnin+s. -ecase respondents plea to be retrned to their former posts 'as not heeded by petitioners, no other conclsion Jisdiscernible from the attendant circmstances e;cept the fact that Nrespondents transfer 'as nreasonable, inconvenient andpre?dicial to them 'hich Nis tantamont to a constrctive dismissal.J11Moreover, the nathoried absences of respondents did not'arrant a 8ndin+ of abandonment in vie' of the len+th of their service 'ith petitioner company and the diGclty in 8ndin+ similaremployment. The C$ frther invo!ed the rle that an employee 'ho forth'ith ta!es steps to protest his layoF cannot by any lo+ic besaid to have abandoned his 'or!.

#etitioners 8led a motion for partial reconsideration 'hich 'as denied by the C$.

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respondents insist that their transfer to a ne' 'or! assi+nment 'as a+ainst their 'ill. Ee have lon+ stated that Jthe ob?ection to thetransfer bein+ +ronded on solely pon the personal inconvenience or hardship that 'ill be cased to the employee by reason of thetransfer is not a valid reason to disobey an order of transfer.J 19That respondents eventally discontined reportin+ for 'or! after theiplea to be retrned to their former 'or! assi+nment 'as their personal decision, for 'hich the petitioners shold not be held liableparticlarly as the latter did not, in fact, dismiss them.

Indeed, there 'as no evidence that respondents 'ere dismissed from employment. 7=1p/i7In fact, petitioners e;pressed 'illin+nessto accept them bac! to 'or!. There bein+ no termination of employment by the employer, the a'ard of bac!'a+es cannot besstained. It is 'ell settled that bac!'a+es may be +ranted only 'hen there is a 8ndin+ of ille+al dismissal. />In cases 'here there isno evidence of dismissal, the remedy is reinstatement bt 'ithot bac!'a+es./1

The constittional policy of providin+ fll protection to labor is not intended to oppress or destroy mana+ement.//Ehile theConstittion is committed to the policy of social ?stice and the protection of the 'or!in+ class, it shold not be spposed that everylabor dispte 'ill be atomatically decided in favor of labor. Mana+ement also has its ri+hts 'hich are entitled to respect andenforcement in the interest of simple fair play./)Ths, 'here mana+ement prero+ative to transfer employees is validly e;ercised, asin this case, corts 'ill decline to interfere.

=HEREORE, the petition for revie' on certiorari is GRANTE!.The 2ecision dated ebrary /4, />>9 and esoltion datedebrary 1>, />1> of the Cort of $ppeals in C$(.. S# o. 1>/>>/ are "ET A"I!E.The 2ecision dated $+st /0, />> of theational 6abor elations Commission is hereby REIN"TATE! #$% UPHEL!.

o prononcement as to costs.

SO O2::2.

G.R. No. 15)511 July 18, 2(12

LEGEN! HOTEL /MANILA0, o>$7% y TITANIUM CORPORATION, #$%;o*, NEL"ON NAPU!, :$ : +##+:y # 7 P*7:%7$oB P7::o$7* Co*o*#:o$, #etitioner,vs.HERNANI ". REALUYO, #lo $o>$ # JOEY ROA, espondent.

2 : C I S I O

ER"AMIN,J.:

This labor case for ille+al dismissal involves a pianist employed to perform in the restarant of a hotel. On $+st 9, 1999,respondent, 'hose sta+e name 'as 3oey . oa, 8led a complaint for alle+ed nfair labor practice, constrctive ille+al dismissal, andthe nderpaymentQnonpayment of his premim pay for holidays, separation pay, service incentive leave pay, and 1)111 month pay.

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This is reinforced by the ndispted fact that complainant received his talent fee ni+htly, nli!e the re+lar employees of the hotel'ho are paid by monthly ;;;.

; ; ;

$nd ths, absent the po'er to control 'ith respect to the means and methods by 'hich his 'or! 'as to be accomplished, there is noemployer(employee relationship bet'een the parties ;;;.

; ; ;

E>1. 5

espondent assailed the decision of the 6C in the Cort of $ppeals AC$B on certiorari.

On ebrary 11, />>/, the C$ set aside the decision of the 6C,*holdin+D

; ; ;

$pplyin+ the above(enmerated elements of the employee(employer relationship in this case, the %estion to be as!ed is, are those

elements present in this caseK

The ans'er to this %estion is in the aGrmative.

; ; ;

Eell settled is the rle that of the for A4B elements of employer(employee relationship, it is the po'er of control that is moredecisive.

In this re+ard, pblic respondent failed to ta!e into consideration that in petitioners line of 'or!, he 'as spervised and controlled byrespondents restarant mana+er 'ho at certain times 'old re%ire him to perform only ta+alo+ son+s or msic, or 'ear baron+ta+alo+ to conform 'ith ilipiniana motif of the place and the time of his performance is 8;ed by the respondents from D>> pm to1>D>> pm, three to si; times a 'ee!. #etitioner cold not choose the time of his performance. ;;;.

$s to the stats of petitioner, he is considered a re+lar employee of private respondents since the ?ob of the petitioner 'as infrtherance of the restarant bsiness of respondent hotel. rantin+ that petitioner 'as initially a contractal employee, by the sheerlen+th of service he had rendered for private respondents, he had been converted into a re+lar employee ;;;.

; ; ;

;;; In other 'ords, the dismissal 'as de to retrenchment in order to avoid or minimie bsiness losses, 'hich is reco+nied by la'nder $rticle /0) of the 6abor Code, ;;;.

; ; ;

E

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I7. PPP E1 I 6C C C$ O. >/)4>4(/>>> O T>1 I $7O O

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stiplation to deprive the employee of his secrity of tenre. The ine%ality that characteries employer(employee relations +enerallytips the scales in favor of the employer, sch that the employee is often scarcely provided real and better options. 15

Secondly, petitioner ar+es that 'hatever remneration 'as +iven to respondent 'ere only his talent fees that 'ere not inclded inthe de8nition of 'a+e nder the 6abor Code and that sch talent fees 'ere bt the consideration for the service contract enteredinto bet'een them.

The ar+ment is baseless.

espondent 'as paid #4>>.>> per three hors of performance from D>> pm to 1>D>> pm, three to si; ni+hts a 'ee!. Sch rate ofremneration 'as later increased to #5>.>> pon restarant mana+er 7elacos recommendation. There is no denyin+ that theremneration denominated as talent fees 'as 8;ed on the basis of his talent and s!ill and the %ality of the msic he played drin+the hors of performance each ni+ht, ta!in+ into accont the prevailin+ rate for similar talents in the entertainment indstry. 1*

espondents remneration, albeit denominated as talent fees, 'as still considered as inclded in the term 'a+e in the sense andconte;t of the 6abor Code, re+ardless of ho' petitioner chose to desi+nate the remneration. $nent this, $rticle 9AfB of the 6aborCode clearly statesD

;;; 'a+e paid to any employee shall mean the remneration or earnin+s, ho'ever desi+nated, capable of bein+ e;pressed in termsof money, 'hether 8;ed or ascertained on a time, tas!, piece, or commission basis, or other method of calclatin+ the same, 'hich ispayable by an employer to an employee nder a 'ritten or n'ritten contract of employment for 'or! done or to be done, or forservices rendered or to be rendered, and incldes the fair and reasonable vale, as determined by the Secretary of 6abor, of board,lod+in+, or other facilities cstomarily frnished by the employer to the employee.

Clearly, respondent received compensation for the services he rendered as a pianist in petitioners hotel. #etitioner cannot se the

service contract to rid itself of the conse%ences of its employment of respondent. There is no denyin+ that 'hatever amonts hereceived for his performance, ho'soever desi+nated by petitioner, 'ere his 'a+es.

It is notable that nder the les Implementin+ the 6abor Code and as held in Tan v. 6a+rama, 1every employer is re%ired to pay hisemployees by means of a payroll, 'hich shold sho' in each case, amon+ others, the employees rate of pay, dedctions made fromsch pay, and the amonts actally paid to the employee. =et, petitioner did not present the payroll of its employees to bolster itsinsistence of respondent not bein+ its employee.

That respondent 'or!ed for less than ei+ht horsQday 'as of no conse%ence and did not detract from the C$s 8ndin+ on thee;istence of the employer(employee relationship. In providin+ that the J normal hors of 'or! of any employee shall not e;ceed ei+htA0B hors a day,J $rticle 0) of the 6abor Code only set a ma;imm of nmber of hors as Jnormal hors of 'or!J bt did not prohibit'or! of less than ei+ht hors.

Thirdly, the po'er of the employer to control the 'or! of the employee is considered the most si+ni8cant determinant of thee;istence of an employer(employee relationship.10This is the so(called control test, and is premised on 'hether the person for 'hom

the services are performed reserves the ri+ht to control both the end achieved and the manner and means sed to achieve thatend.19

#etitioner sbmits that it did not e;ercise the po'er of control over respondent and cites the follo'in+ to bttress its sbmission,namelyD AaB respondent cold be+ oF from his ni+htly performances in the restarant for other en+a+ements AbB he had the soleprero+ative to play and perform any msical arran+ements that he 'ished AcB altho+h petitioner, thro+h its mana+er, re%ired himto play at certain times a particlar msic or son+, the msic, son+s, or arran+ements, incldin+ the beat or tempo, 'ere nder hisdiscretion, control and direction AdB the re%irement for him to 'ear baron+ Ta+alo+ to conform 'ith the ilipiniana motif of the vene'henever he performed 'as by no means evidence of control AeB petitioner cold not re%ire him to do any other 'or! in therestarant or to play the piano in any other places, areas, or establishments, 'hether or not o'ned or operated by petitioner, drin+the three hor period from D>> pm to 1>D>> pm, three to si; times a 'ee! and AfB respondent cold not be re%ired to sin+, dance orplay another msical instrment.

$ revie' of the records sho's, ho'ever, that respondent performed his 'or! as a pianist nder petitioners spervision and control.Speci8cally, petitioners control of both the end achieved and the manner and means sed to achieve that end 'as demonstrated bythe follo'in+, to 'itD

a.

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6astly, petitioner claims that it had no po'er to dismiss respondent de to his not bein+ even sb?ect to its Code of 2iscipline, andthat the po'er to terminate the 'or!in+ relationship 'as mtally vested in the parties, in that either party mi+ht terminate at 'ill,'ith or 'ithot case.

The claim is contrary to the records. Indeed, the memorandm informin+ respondent of the discontinance of his service becase ofthe present bsiness or 8nancial condition of petitioner/>sho'ed that the latter had the po'er to dismiss him from employment. /1

Sbstantive Isse o. /D

7alidity of the Termination

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