BITOY VS FLY ACE (ONUS PROBANDI OF EMPLOYER EMPLOYEE RELATIONSHIP)OnMay 23, 2008, Javier filed a complaint before the NLRC for underpayment of salaries and other labor standard benefits.He alleged that he was an employee of Fly Ace since September 2007, performing various tasks at the respondents warehouse such as cleaning and arranging the canned items before their delivery to certain locations, except in instances when he would be ordered to accompany the companys delivery vehicles, aspahinante; that he reported for work from Monday to Saturday from 7:00 oclock in the morning to 5:00 oclock in the afternoon; that during his employment, he was not issued an identification card and payslips by the company;that on May 6, 2008, he reported for work but he was no longer allowed to enter the company premises by the security guard upon the instruction of Ruben Ong(Mr. Ong), his superior;[5]that after several minutes of begging to the guard to allow him to enter, he saw Ong whom he approached and asked why he was being barred from entering the premises; that Ong replied by saying, Tanungin mo anak mo;[6]that he then went home and discussed the matter with his family; that he discovered that Ong had been courting his daughter Annalyn after the two met at a fiesta celebration in Malabon City;that Annalyn tried to talk to Ong and convince him to spare her father from trouble but he refused to accede; that thereafter, Javier was terminated from his employment without notice;and that he was neither given the opportunity to refute the cause/s of his dismissal from work.To support his allegations, Javier presented an affidavit of one Bengie Valenzuela who alleged that Javier was a stevedore orpahinanteofFly Acefrom September 2007 to January 2008.The said affidavit was subscribed before the Labor Arbiter(LA).[7]For its part, Fly Ace averred that it was engaged in the business of importation and sales of groceries. Sometime in December 2007, Javier was contracted by its employee, Mr. Ong, as extra helper on apakyawbasis at an agreed rate of 300.00 per trip, which was later increased to 325.00 in January 2008.Mr. Ong contracted Javier roughly 5 to 6 times only in a month whenever the vehicle of its contracted hauler, Milmar Hauling Services, was not available.OnApril 30, 2008, Fly Ace no longer needed the services of Javier.Denying that he was their employee, Fly Ace insisted that there was no illegal dismissal.[8]Fly Acesubmitted a copy of its agreement with Milmar Hauling Services and copies of acknowledgment receipts evidencing payment to Javier for his contracted services bearing the words, daily manpower(pakyaw/piece rate pay) and the latters signatures/initials.Ruling of the Labor ArbiterLA dismissed the complaint for lack of merit on the ground that Javier failed to present proof that he was a regular employee of Fly Ace.Ruling of the NLRCOn appeal with the NLRC, Javier was favored. It ruled that the LA skirted the argument of Javier and immediately concluded that he was not a regular employee simply because he failed to present proof.It was of the view that apakyaw-basis arrangement did not preclude the existence of employer-employee relationship. Payment by result x x xis a method of compensation and does not define the essence of the relation. It is a mere method of computing compensation, not a basis for determining the existence or absence of an employer-employee relationship.Finding Javier to be a regular employee, the NLRC ruled that he was entitled to a security of tenure. For failing to present proof of a valid cause for his termination, Fly Ace was found to be liable for illegal dismissal of Javier who was likewise entitled to backwages and separation pay in lieu of reinstatement.

Ruling of the Court of AppealsOnMarch 18, 2010, the CA annulled the NLRC findings that Javier was indeed a former employee of Fly Ace and reinstated the dismissal of Javiers complaint as ordered by the LA. The CA exercised its authority to make its own factual determination anent the issue of the existence of an employer-employee relationship between the parties.According to the CA:x x xIn an illegal dismissal case theonus probandirests on the employer to prove that its dismissal was for a valid cause. However, before a case for illegal dismissal can prosper, an employer-employee relationship must first be established. x x x it is incumbent upon private respondent to prove the employee-employer relationship by substantial evidence.x x xIt is incumbent upon private respondent to prove, by substantial evidence, that he is an employee of petitioners, but he failed to discharge his burden. The non-issuance of a company-issued identification card to private respondent supports petitioners contention that private respondent was not its employee.[12]The CA likewise added that Javiers failure to present salary vouchers, payslips, or other pieces of evidence to bolster his contention, pointed to the inescapable conclusion that he was not an employee of Fly Ace.Further, it found that Javiers work was not necessary and desirable to the business or trade of the company, as it was only when there were scheduled deliveries, which a regular hauling service could not deliver, that Fly Ace would contract the services of Javier as an extra helper. Lastly, the CA declared that the facts alleged by Javier did not pass the control test.He contracted work outside the company premises; he was not required to observe definite hours of work; he was not required to report daily; and he was free to accept other work elsewhere as there was no exclusivity of his contracted service to the company, the same being co-terminous with the trip only.[13]Since no substantial evidence was presented to establish an employer-employee relationship, the case for illegal dismissal could not prosper.WHETHER THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE PETITIONER WAS NOT A REGULAR EMPLOYEE OF FLY ACE.II.WHETHER THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE PETITIONER IS NOT ENTITLED TO HIS MONETARY CLAIMS.[14]The Court affirms the assailed CA decision.It must be noted that the issue of Javiers alleged illegal dismissal is anchored on the existence of an employer-employee relationship between him and Fly Ace. This is essentially a question of fact. Generally, the Court does not review errors that raise factual questions. However, when there is conflict among the factual findings of the antecedent deciding bodies like the LA, the NLRC and the CA, it is proper, in the exercise of Our equity jurisdiction, to review and re-evaluate the factual issues and to look into the records of the case and re-examine the questioned findings.[26]In dealing with factual issues in labor cases, substantial evidence that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion is sufficient.[27]As the records bear out, the LA and the CA found Javiers claim of employment with Fly Ace as wanting and deficient. The Court is constrained to agree.Although Section 10, Rule VII of the New Rules of Procedure of the NLRC[28]allows a relaxation of the rules of procedure and evidence in labor cases, this rule of liberality does not mean a complete dispensation of proof.Labor officials are enjoined to use reasonable means to ascertain the facts speedily and objectively with little regard to technicalities or formalities but nowhere in the rules are they provided a license to completely discount evidence, or the lack of it. The quantum of proof required, however, must still be satisfied. Hence, when confronted with conflicting versions on factual matters, it is for them in the exercise of discretion to determine which party deserves credence on the basis of evidence received, subject only to the requirement that their decision must be supported by substantial evidence.[29]Accordingly, the petitioner needs to show by substantial evidence that he was indeed an employee of the company against which he claims illegal dismissal.In sum, the rule of thumb remains: theonus probandifalls on petitioner to establish or substantiate such claim by the requisite quantum of evidence.[32]Whoever claims entitlement to the benefits provided by law should establish his or her right thereto x x x.[33]Sadly, Javier failed to adduce substantial evidence as basis for the grant of relief.In this case, the LA and the CA both concluded that Javier failed to establish his employment with Fly Ace. By way of evidence on this point, all that Javier presented were his self-serving statements purportedly showing his activities as an employee of Fly Ace.Clearly, Javier failed to pass the substantiality requirement to support his claim.Hence, the Court sees no reason to depart from the findings of the CA.While Javier remains firm in his position that as an employed stevedore of Fly Ace, he was made to work in the company premises during weekdays arranging and cleaning grocery items for delivery to clients, no other proof was submitted to fortify his claim. The lone affidavit executed by one Bengie Valenzuela was unsuccessful in strengthening Javiers cause. In said document, all Valenzuela attested to was that he would frequently see Javier at the workplace where the latter was also hired as stevedore.[34]Certainly, in gauging the evidence presented by Javier, the Court cannot ignore the inescapable conclusion that his mere presence at the workplace falls short in proving employment therein. The supporting affidavit could have, to an extent, bolstered Javiers claim of being tasked to clean grocery items when there were no scheduled delivery trips, but no information was offered in this subject simply because the witness had no personal knowledge of Javiers employment status in the company. Verily, the Court cannot accept Javiers statements, hook, line and sinker.The Court is of the considerable view that on Javier lies the burden to pass the well-settled tests to determinethe existence of an employer-employee relationship,viz: (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.Of these elements, the most important criterion is whether the employer controls or has reserved the right to control the employee not only as to the result of the work but also as to the means and methods by which the result is to be accomplished.[35]In this case, Javier was not able to persuade the Court that the above elements exist in his case.He could not submit competent proof that Fly Ace engaged his services as a regular employee; that Fly Ace paid his wages as an employee, or that Fly Ace could dictate what his conduct should be while at work. In other words, Javiers allegations did not establish that his relationship with Fly Ace had the attributes of an employer-employee relationship on the basis of the above-mentioned four-fold test. Worse, Javier was not able to refute Fly Aces assertion that it had an agreement with a hauling company to undertake the delivery of its goods.It was also baffling to realize that Javier did not dispute Fly Aces denial of his services exclusivity to the company. In short, all that Javier laid down were bare allegations without corroborative proof.Fly Ace does not dispute having contracted Javier and paid him on a per trip rate as a stevedore, albeit on apakyawbasis.The Court cannot fail to note that Fly Ace presented documentary proof that Javier was indeed paid on apakyawbasis per the acknowledgment receipts admitted as competent evidence by the LA.Unfortunately for Javier, his mere denial of the signatures affixed therein cannot automatically sway us to ignore the documents because forgery cannot be presumed and must be proved by clear, positive and convincing evidence and the burden of proof lies on the party alleging forgery.[36]

While the Constitution is committed to the policy of social justice and the protection of the working class, it should not be supposed that every labor dispute will be automatically decided in favor of labor. Management also has its rights which are entitled to respect and enforcement in the interest of simple fair play. Out of its concern for the less privileged in life, the Court has inclined, more often than not, toward the worker and upheld his cause in his conflicts with the employer. Such favoritism, however, has not blinded the Court to the rule that justice is in every case for the deserving, to be dispensed in the light of the established facts and the applicable law and doctrine.[39]

PIGCAULAN VS SECURITY AND CREDIT (ONUS PROBANDI OF LEGALITY OF DISMISSAL)Canoy and Pigcaulan were both employed by SCII as security guards and were assigned to SCIIs different clients.Subsequently, however, Canoy and Pigcaulan filed with the Labor Arbiter separate complaints[7]for underpayment of salaries and non-payment of overtime, holiday, rest day, service incentive leave and 13th month pays.These complaints were later on consolidated as they involved the same causes of action.Canoy and Pigcaulan, in support of their claim, submitted their respective daily time records reflecting the number of hours served and their wages for the sameRespondents, however, maintained that Canoy and Pigcaulan were paid their just salaries and other benefits under the law; that the salaries they received were above the statutory minimum wage and the rates provided by the Philippine Association of Detective and Protective Agency Operators (PADPAO) for security guards; that their holiday pay were already included in the computation of their monthly salaries; that they were paid additional premium of 30% in addition to their basic salary whenever they were required to work on Sundays and 200% of their salary for work done on holidays; and, that Canoy and Pigcaulan were paid the corresponding 13thmonth pay for the years 1998 and 1999.In support thereof, copies of payroll listings[8]and lists of employees who received their 13thmonth pay for the periods December 1997 to November 1998 and December 1998 to November 1999[9]were presented.In addition, respondents contended that Canoys and Pigcaulans monetary claims should only be limited to the past three years of employment pursuant to the rule on prescription of claims.Ruling of the Labor ArbiterThe Labor Arbiter held that the payroll listings presented by the respondents did not prove that Canoy and Pigcaulan were duly paid as same were not signed by the latter or by any SCII officer.The 13thmonth payroll was, however, acknowledged as sufficient proof of payment, for it bears Canoys and Pigcaulans signatures.Thus, without indicating any detailed computation of the judgment award, the Labor Arbiter ordered the payment of overtime pay, holiday pay, service incentive leave pay and proportionate 13thmonth pay for the year 2000 in favor of Canoy and Pigcaulan.Ruling of the National Labor Relations CommissionAccordingly, the Labor Arbiters Decision was sustained.The motion for reconsideration thereto was likewise dismissed by the NLRC in a Resolution[15]dated June 14, 2004.Ruling of the Court of AppealsThe CA,in its Decision[17]dated February 24, 2006,set asidethe rulings ofboth the Labor Arbiter and the NLRC after noting that there were no factual and legal bases mentioned in the questioned rulings to support the conclusions made.Consequently, it dismissed all the monetary claims of Canoy and Pigcaulan on the following rationale:Canoy and Pigcaulan filed a Motion for Reconsideration, but same was denied by the CA in a Resolution[19]dated June 28, 2006.IssuesThe petition ascribes upon the CA the following errors:I. The Honorable Court of Appeals erred when it dismissed the complaint on mere alleged failure of the Labor Arbiter and the NLRC to observe the prescribed form of decision, instead of remanding the case for reformation of the decision to include the desired detailed computation.II. The Honorable Court of Appeals erred when it [made] complainants suffer the consequences of the alleged non-observance by the Labor Arbiter and NLRC of the prescribed forms of decisions considering that they have complied with all needful acts required to support their claims.III. The Honorable Court of Appeals erred when it dismissed the complaint allegedly due to absence of legal and factual [bases] despite attendance of substantial evidence in the records.[20]Our RulingThe assailed CA Decision is considered final as to Canoy.Canoy cannot now simply incorporate in his affidavit a verification of the contents and allegations of the petition as he is not one of the petitioners therein.Suffice it to state that it would have been different had the said petition been filed in behalf of both Canoy and Pigcaulan.In such a case, subsequent submission of a verification may be allowed as non-compliance therewith or a defect therein does not necessarily render the pleading, or the petition as in this case, fatally defective.[24]The court may order its submission or correction, or act on the pleading if the attending circumstances are such that strict compliance with the Rule may be dispensed with in order that the ends of justice may be served thereby.Further, a verification is deemed substantially complied with when one who has ample knowledge to swear to the truth of the allegations in the complaint or petition signs the verification, and when matters alleged in the petition have been made in good faith or are true and correct.[25]However, even if it were so, we note that Canoy still failed to submit or at least incorporate in his affidavit a certificate of non-forum shopping.The filing of a certificate ofnon-forumshopping is mandatory so much sothat non-compliance could only be tolerated by special circumstances and compelling reasons.[26]This Court has held that when there are several petitioners, all of them must execute and sign the certification against forum shopping; otherwise, those who did not sign will be dropped as parties to the case.[27]True, we held that in some cases, execution by only one of the petitioners on behalf of the other petitioners constitutes substantial compliance with the rule on the filing of a certificate of non-forum shopping on the ground of common interest or common cause of action or defense.[28]We, however, find that common interest is not present in the instant petition.To recall, Canoys and Pigcaulans complaints were consolidated because they both sought the same reliefs against the same respondents.This does not, however, mean that they share a common interest or defense.The evidence required to substantiate their claims may not be the same.A particular evidence which could sustain Canoys action may not effectively serve as sufficient to support Pigcaulans claim.Having declared the present petition as solely filed by Pigcaulan, this Court shall consider the subsequent pleadings, although apparently filed under his and Canoys name, as solely filed by the former.

There was no substantial evidence to support the grant of overtime pay.The Labor Arbiter ordered reimbursement of overtime pay, holiday pay, service incentive leave pay and 13thmonth pay for the year 2000 in favor of Canoy and Pigcaulan.The Labor Arbiter relied heavily on the itemized computations they submitted which he considered as representative daily time records to substantiate the award of salary differentials.The NLRC then sustained the award on the ground that there was substantialevidence of underpayment of salaries and benefits.We find nothing in the records which could substantially support Pigcaulans contention that he had rendered service beyond eight hours to entitle him to overtime pay and during Sundays to entitle him to restday pay.Hence, in the absence of any concrete proof that additional service beyond the normal working hours and days had indeed been rendered, we cannot affirm the grant of overtime pay to Pigcaulan.Pigcaulan is entitled to holiday pay, service incentive leave pay and proportionate 13thmonth pay for year 2000.However, with respect to the award for holiday pay,service incentive leavepay and 13thmonth pay, we affirm and rule that Pigcaulan is entitled to these benefits.Article 94 of the Labor Code provides that:ART. 94.RIGHT TO HOLIDAY PAY. (a) Every worker shall be paid his regular daily wage during regular holidays, except in retail and service establishments regularly employing less than ten (10) workers;While Article 95 of the Labor Code provides:ART. 95.RIGHT TO SERVICE INCENTIVE LEAVE.(a) Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive of five days with pay.Under the Labor Code, Pigcaulan is entitled to his regular rate on holidays even if he does not work.[30]Likewise, express provision of the law entitles him to service incentive leave benefit for he rendered service for more than a year already.Furthermore, under Presidential Decree No. 851,[31]he should be paid his 13thmonth pay.As employer, SCII has the burden of proving that it has paid these benefits to its employees.[32]To repeat, the burden of proving payment of these monetary claims rests on SCII, being the employer.It is a rule that one who pleads payment has the burden of proving it.Even when the plaintiff alleges non-payment, still the general rule is that the burden rests on the defendant to prove payment, rather than on the plaintiff to prove non-payment.[33]Since SCII failed to provide convincing proof that it has already settled the claims, Pigcaulan should be paid his holiday pay, service incentive leave benefits and proportionate 13thmonth pay for the year 2000.The CA erred in dismissing the claims instead of remanding the case to the Labor Arbiter for a detailed computation of the judgment award.Indeed, the Labor Arbiter failed to provide sufficient basis for the monetaryawards granted. Such failure, however, should not result in prejudice to the substantial rights of the party.While we disallow the grant of overtime pay and restday pay in favor of Pigcaulan, he is nevertheless entitled, as a matter of right, to his holiday pay, service incentive leave pay and 13thmonth pay for year 2000.Hence, the CA is not correct in dismissing Pigcaulans claims in its entirety.Consistent with the rule that all money claims arising from an employer-employee relationship shall be filed within three years from the time the cause of action accrued,[34]Pigcaulan can only demand the amounts due him for the period within three years preceding the filing of the complaint in 2000.Furthermore, since the records are insufficient to use as bases to properly compute Pigcaulans claims, the case should be remanded to the Labor Arbiter for a detailed computation of the monetary benefits due to him.WHEREFORE,thepetitionisGRANTED.The case isREMANDEDto the Labor Arbiter for further proceedings to determine the exact amount and to make a detailed computation of the monetary benefits due Abduljuahid R. Pigcaulan which Security and Credit Investigation Inc. should pay without delay.

PALEA

Pacific Consultants v. SchonfeldCallejo, 2007,Third Respondent Klaus Schonfeld, a Canadian citizen, had been aconsultant in the fieldof environmental engineering and watersupply and sanitation. Pacicon Philippines Inc., a subsidiary of Pacific Consultants International of Japan, is a corporation with the primary purpose to engage inthe business of providing specialty andtechnical services both in and out ofthe Philippines. The president of PPI, JensPeter Henrichsen, who was also the director ofPCIJ, was based in Tokyo, Japan. Respondent was employed by PCIJ,through Henrichsen, as Sector Manager ofPPIin its Water andSanitation Department. However, PCIJ assigned him as PPI sector manager in the Philippines. Respondent arrived in the Philippines and assumed hisposition as PPI Sector Manager. He was accorded the status of a resident alien.PPI applied for an AlienEmployment Permit for respondent before the DOLE and the DOLE granted the application and issued thePermit to respondent. Respondent later received a letter from Henrichsen informing him that his employment hadbeen terminated for the reasonthat PCIJ and PPI had not been successful in the water and sanitation sector in the Philippines. Respondent filed with PPIseveral money claims. PPI partially settled some of his claims, butrefused to pay the rest. Respondent filed a Complaint forIllegal Dismissal. Petitioners aver that since respondent is a Canadian citizen, the CAerred in ignoring their claim that the principles offorum non conveniens and lex loci contractus are applicable. They also point out that thecontract of employment of respondent was executed in Tokyo. Moreover, under Section 21 of theGeneralConditions for Employment incorporated in respondents letter of employment, the dispute between respondent and PCIJ should be settled by the court ofarbitration of London. Petitioners insist that the U.S. Labor-Management Act applies only to U.S. workers and employers, while the Labor Code applies only toFilipino employers and Philippine-based employers and their employees, notto PCIJ. In fine, the jurisdictions of the NLRC and Labor Arbiter do notextend to foreign workers who executed employment agreements with foreign employers abroad, although "seconded" to the Philippines.SC: The petition is denied for lack of merit.The settled rule on stipulations regarding venue, as held by thisCourt in thevintage case of Philippine Banking Corporation v. Tensuan, is that whilethey are considered valid and enforceable, venue stipulations in a contract donot, as a rule, supersede the general rule set forth in Rule 4of the Revised Rules of Court in theabsence of qualifying or restrictive words. They should be considered merely as an agreement or additional forum, not as limiting venue tothe specified place. They are not exclusive but, rather permissive. If the intention of theparties were to restrict venue, there must beaccompanying language clearly and categorically expressing their purpose and design that actions between them belitigated only at the place named by them.Petitioners insistence on theapplication of the principle of forum non conveniensmust be rejected. The bare factthat respondent is a Canadian citizen and was are patriate does not warrant the application of theprinciple for the following reasons: First. The Labor Code of the Philippines does not include forum non conveniens as a ground for the dismissal of thecomplaint. Second. The proprietyof dismissing a case based onthis principle requires a factual determination; hence,it is properly considered as defense. Third. InBank of America, NT&SA, Bank ofAmerica International, Ltd. v. Court of Appeals, this Court held that:[a] PhilippineCourt may assume jurisdiction over the case if itchooses to do so;provided, thatthe following requisites are met: (1) that thePhilippine Court is one to which theparties mayconveniently resort to; (2) that the Philippine Court is in aposition to make an intelligent decision as to the law and the facts; and, (3) that thePhilippine Court has or is likely tohave power to enforce its decision

Coca Cola Bottlers (Phils.) vs. Climaco[GR. No. 146881, Feb. 5, 2007]Facts:Coca-Cola hired Dr. Climaco by virtue of a Retainer Agreement with a compensation fixed atP3,000.00 per month. Dr. Climaco may charge professional fee for hospital services rendered in line with his specialization. He is to observe clinic hours at the company premises from Monday to Saturday at least two (2) hours each day unless such schedule is otherwise changed by the company as the situation so warrants, subject to the labor Code provisions on Occupational Safety and Health Standards as the Company may determine. It was also expressly stated in the contract that no employer-employee relationship shall exist between the retainer and the company. The doctor also agrees to perform the duties and obligations enumerated in the Comprehensive Medical Plan. After the expiration of the 1-year retainer agreement, respondent continued to perform his functions as a company doctor to Coca-Cola until he received a letter from the latter concluding their retainership agreement effective 30 days from receipt thereof. In turn, he filed a complaint before the NLRC, seeking recognition as a regular employee and prayed for the payment of all benefits of a regular employee.Issue:Whether or not Dr. Climaco was Coca-Colas employeeHeld:The circumstances of this case show that no employer-employee relationship exists between theparties because the company lacked the power of control over the performance by respondent of his duties. The company in providing a Comprehensive Medical Plan, merely issued guidelines in order to ensue that the end result was achieved, but did not control the means and methods by which respondent performed his assigned tasks. The company lacks the power of control that the contract provides that the respondent shall be directly responsible to the employee concerned and their dependents for any injury, harm or damage caused through professional negligence, incompetence, or other valid causes of action.The schedule of work and the requirement to be on call for emergency cases do not amount to such control, but are necessary incidents to the Retainership Agreement.The Retainership Agreement granted to both parties the power to terminate their relationship upon giving a 30-day notice. Hence, petitioner company did not wield the sole power of dismissal or termination. There is nothing wrong with the employment of respondent as a retained physician of petitioner company and upholds the validity of the retainership agreement which clearly states that no employer-employee relationship existed between the parties.Dumpit-Murillo vs. CA[GR. No. 164652.June 8, 2007]Facts:Murillowas hired under a talent contract, as a newscaster and co-anchor for ABCs early eveningnews program. The contract was for a period of three months. It was renewed fifteen times within four years. Upon the expiration of her last talent contract, she informed ABC of her desire to renew. Not having received a reply, she considered the companys inaction as constructive dismissal of her services.Held:Murillo was not a fixed term employee. An employer-employee relationship was created when the private respondents started to merely renew the contracts repeatedly fifteen times or for four consecutive years. Petitioner was a regular employee. The practice of having fixed-term contracts in the industry does not automatically make all talent contracts valid and compliant with labor law. In the case at bar, it does not appear that the employer and employee dealt with each other on equal terms. Being one of the numerous newscasters/broadcasters of ABC and desiring to keep her job as a broadcasting practitioner, petitioner was left with no choice but to affix her signature of conformity on each renewal of her contract as already prepared by private respondents; otherwise, private respondents would have simply refused to renew her contract. Patently, the petitioner occupied a position of weakness vis--vis the employer. Moreover, private respondents practice of repeatedly extending petitioners 3-month contract for four years is a circumvention of the acquisition of regular status. Hence, there was no valid fixed-term employment between petitioner and private respondents. Sonza case is not applicable [i.e. absence of employer-employee relationship between a talent and the media entity which engaged the talents services on a per talent contract basis] In Sonza, the television station did not instruct Sonza how to perform his job. How Sonza delivered his lines, appeared on television, and sounded on radio were outside the television stations control. In the case at bar, ABC had control over the performance of petitioners work. Noteworthy too, is the comparatively low P28,000 monthly pay of petitioner vis the P300,000 a month salary of Sonza ,that all the more bolsters the conclusion that petitioner was not in the same situation as Sonza. The duties of petitioner as enumerated in her employment contract indicate that ABC had control over the work of petitioner. Aside from control, ABC also dictated the work assignments and payment of petitioners wages. ABC also had power to dismiss her. Murillo was a regular employeeThe assertion that a talent contract exists does not necessarily prevent a regular employment status.Petitioners work was necessary or desirable in the usual business or trade of the employer whichincludes, as a pre-condition for its enfranchisement, its participation in the governments news and public information dissemination. In addition, her work was continuous for a period of four years. This repeated engagement under contract of hire is indicative of the necessity and desirability of the petitioners work in private respondent ABCs business. CONSOLIDATED BROADCASTING SYSTEM VS OBERIOSometime in August 1998, petitioner reduced the number of its drama productions from 14 to 11, but was opposed by respondents.After the negotiations failed, the latter sought the intervention of the Department of Labor and Employment (DOLE), which onNovember 12, 1998, conducted through its Regional Office, an inspection of DWYB station.The results thereof revealed that petitioner is guilty of violation of labor standard laws, such as underpayment of wages, 13thmonth pay, non-payment of service incentive leave pay, and non-coverage of respondents under the Social Security System.Petitioner contended that respondents are not its employees and refused to submit the payroll and daily time records despite the subpoena duces tecum issued by the DOLE Regional Director.Petitioner further argued that the case should be referred to the NLRC because the Regional Director has no jurisdiction over the determination of the existence of employer-employee relationship which involves evidentiary matters that are not verifiable in the normal course of inspection.Vexed by the respondents complaint, petitioner allegedly pressured and intimidated respondents.Respondents Oberio and Delta were suspended for minor lapses and the payment of their salaries were purportedly delayed.Eventually, on February 3, 1999, pending the outcome of the inspection case with the Regional Director, respondents were barred by petitioner from reporting for work; thus, the former claimed constructive dismissal.[5]On April 8, 1999, the DOLE Regional Director issued an order directingpetitionertopayrespondentsatotalofP318,986.74 representing non-payment/underpayment of the salary and benefits due them.[6]However, onJuly 8, 1999, the Regional Director reconsidered theApril 8, 1999order and certified the records of the case to the NLRC, Regional Arbitration Branch VI, for determination of employer-employee relationship.[7]Respondents appealed said order to the Secretary of Labor.OnOctober 12, 1999, respondents filed a case for illegal dismissal, underpayment/non-payment of wages and benefits plus damages against petitioner.OnApril 10, 2000, the Labor Arbiter dismissed the case without prejudice while waiting for the decision of the Secretary of Labor on the same issue of the existence of an employer-employee relationship between petitioner and respondents.On appeal to the NLRC, respondents raised the issue of employer-employee relationship and submitted the following to prove the existence of such relationship, to wit: time cards, identification cards, payroll, a show cause order of the station manager to respondent Danny Oberio and memoranda either noted or issued by said manager.Petitioner, on the other hand, did not present any documentary evidence in its behalf and merely denied the allegations of respondents.It claimed that the radio station pays for the drama recorded by piece and that it has no control over the conduct of respondents.OnDecember 5, 2001, the NLRC rendered a decision holding that respondents were regular employees of petitioner who were illegally dismissed by the latter.It further held that respondents complied with the requirements of the rule on forum shopping.The decretal portion thereof, provides:WHEREFORE, premises considered, the decision of Labor Arbiter Ray Alan T. Drilon dated10 April 2000is SET ASIDE and VACATED and a new one entered.Ordering respondent Consolidated Broadcasting System, Inc. (Bombo Radyo Philippines), DYWB to reinstate the complainants without loss of seniority rights wi[th] full back wages computed from February 1999 up to the time of actual reinstatement.SO ORDERED.[8]Hence, petitioner filed the instant recourse.The issues for resolution are as follows: (1) Did respondents violate the rule on forum shopping; (2) whether the NLRC correctly ruled on the merits of the case instead of remanding the case to the Labor Arbiter; (3) whether respondents were employees of petitioner; and (4) whether their dismissal was illegal.Respondents complaint in the inspection case before the DOLE Regional Director alleged that they were under the employ of petitioner at the time of the filing of said complaint.Pending the resolution thereof, they claimed to have been dismissed; hence, the filing of the present illegal dismissal case before the Labor Arbiter.The causes of action in these two complaints are different,i.e., one for violation of labor standard laws, and the other, for illegal dismissal, but the entitlement of respondents to the reliefs prayed for hinges on the same issue of the existence of an employer-employee relationship.While the decision on the said issue by one tribunal may operate asres judicataon the other, dismissal of the present illegal dismissal case on the ground of forum shopping, would work injustice to respondents because it is the law itself which provides for two separate remedies for their distinct causes of action.Under Article 217[9]of the Labor Code, termination cases fall under the jurisdiction of Labor Arbiters.Whereas, Article 128[10]of the same Code vests the Secretary of Labor or his duly authorized representatives with the power to inspect the employers records to determine and compel compliance with labor standard laws.The exercise of the said power by the Secretary or his duly authorized representatives is exclusive to cases where employer-employee relationship still exists.Thus, in cases where the complaint for violation of labor standard laws preceded the termination of the employee and the filing of the illegal dismissal case, it would not be in consonance with justice to charge the complainants with engaging in forum shopping when the remedy available to them at the time their causes of action arose was to file separate cases before differentfora.Besides, in the instant case, respondent Danny Oberio disclosed in the verification thependency of the case regarding wage differential.[11]In addition, said case was discussed in detail in the position paper,[12]evincing the absence of any intention on the part of respondents to mislead the Labor Arbiter.Similarly, inBenguetManagement Corporation v. Court of Appeals,[13]petitioner filed separate actions to enjoin the foreclosure of real estate mortgages before the Regional Trial Courts of San Pablo City and Zambales which has jurisdiction over the place where the properties were located.In both cases, petitioner contended, among others, that the loan secured by said mortgages imposedunauthorized penalties, interest and charges.The Court did not find the mortgagors guilty of forum shopping considering that since injunction is enforceableonly within the territorial limits of the trial court, the mortgagor is left without remedy as to the properties located outside the jurisdiction of the issuing court, unless an application for injunction is made with another court which has jurisdiction over the latter properties.By parity of reasoning, it would be unfair to hold respondents in the instant case guilty of forum shopping because the recourse available to them after their termination, but pending resolution of the inspection case before the DOLE, was to file a case for illegal dismissal before the Labor Arbiter who has jurisdiction over termination disputes.More importantly, substantial justice dictates that this case be resolved on the merits considering that the NLRC and the Court of Appeals correctly found that there existed an employer-employee relationship between petitioner and respondents and that the latters dismissal was illegal, as will be discussed hereunder.In the same vein, the NLRC correctly ruled on the merits instead of remanding the case to the Labor Arbiter.Respondents specifically raised the issue of the existence of employer-employee relationship but petitioner refused to submit evidence to disprove such relationship on the erroneous contention that to do so would constitute a waiver of the right to question the jurisdiction of the NLRC to resolve the case on the merits.[14]This is rather odd because it was the stand of petitioner in the inspection case before the DOLE that the case should be certified to the NLRC for the resolution of the issue of employer-employee relationship. But when the same issue was proffered before the NLRC, it refused to present evidence and instead sought the dismissal of the case invoking the pendency of the inspection case before the DOLE.Petitioner refused to meet head on the substantial aspect of this controversy and resorted to technicalities to delay its disposition.It must be stressed that labor tribunals are not bound by technical rules and the Court would sustain the expedient disposition of cases so long as the parties are not denied due process.[15]The rule is that, due process is not violated where a person is given the opportunity to be heard, but chooses not to give his or her side of the case.[16]Significantly, petitioner never claimed that it was denied due process.Indeed, no such denial exists because it had all the opportunities to present evidence before the labor tribunals below, the Court of Appeals, and even before this Court, but chose not to do so for reasons which will not warrant the sacrifice of substantial justice over technicalities.On the third issue, respondents employment with petitioner passed the four-fold test on employer-employee relations, namely: (1) the selection and engagement of the employee, or the power to hire; (2) the payment of wages; (3) the power to dismiss; and (4) the power to control the employee.Petitioner failed to controvert with substantial evidence the allegation of respondents that they were hired by the former on various dates from 1974 to 1997.If petitioner did not hire respondents and if it was the director alone who chose the talents, petitioner could have easily shown, being in possession of the records, a contract to such effect.However, petitioner merely relied on its contention that respondents were piece rate contractors who were paid by results.[17]Note that underPolicy Instruction No. 40, petitioner is obliged to execute the necessary contract specifying thenature of the work to be performed, rates of pay, and the programs in which they will work.Moreover, project or contractual employees are required to be apprised of the project they will undertake under a written contract.This was not complied with by the petitioner, justifying the reasonable conclusion that no such contracts exist and that respondents were in fact regular employees.InABS-CBN v. Marquez,[18]the Court held that the failure of the employer to produce the contract mandated by Policy Instruction No. 40 is indicative that the so called talents or project workers are in reality, regular employees.Thus Policy Instruction No. 40 pertinently provides:Program employees are those whose skills, talents or services are engaged by the station for a particular or specific program or undertaking and who are not required to observe normal working hours such that on some days they work for less than eight (8) hours and on other days beyond the normal work hours observed by station employees and are allowed to enter into employment contracts with other persons, stations, advertising agencies or sponsoring companies. Theengagement of program employees,including those hired by advertising or sponsoring companies, shall beunder a written contract specifying,among other things, thenature of the work to be performed, rates of pay, and the programs in which they will work.Thecontract shall be duly registered by the station with the Broadcast Media Council within three days from its consummation.(Emphasis supplied)Ironically, however, petitioner failed to adduce an iota proof that the requirements for program employment were even complied with by it.It is basic that project or contractual employees are appraised of the project they will work under a written contract, specifying,inter alia,the nature of work to be performed and the rates of pay and the program in which they will work.Sadly, however, no such written contract was ever presented by the petitioner. Petitioner is in the best of position to present these documents. And because none was presented, we have every reason to surmise that no such written contract was ever accomplished by the parties, thereby belying petitioners posture.Worse, there was no showing of compliance with the requirement that after every engagement or production of a particular television series, the required reports were filed with the proper government agency, as provided no less under the very Policy Instruction invoked by the petitioner, nor under the Omnibus Implementing Rules of the Labor Code for project employees. This alone bolsters respondents contention that they were indeed petitioners regular employees since their employment was not only for a particular program.Moreover, the engagement of respondents for a period ranging from 2 to 25 years and the fact that their drama programs were aired not only in Bacolod City but also in the sister stations of DYWB in the Visayas and Mindanao areas, undoubtedly show that their work is necessary and indispensable to the usual business or trade of petitioner.The test to determine whether employment is regular or not is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. Also, if the employee has been performing the job for at least one year, even if the performance is not continuous or merely intermittent, the law deems the repeated and continuing need for its performance as sufficient evidence of the necessity, if not indispensability of that activity to the business.Thus, even assuming that respondents were initially hired as project/contractual employees who were paid per drama or per project/contract, the engagement of their services for2 to 25 years justify their classification as regular employees, their services being deemed indispensable to the business of petitioner.[19]As to the payment of wages, it was petitioner who paid the same as shown by the payroll bearing the name of petitioner company in the heading with the respective salaries of respondents opposite their names.Anent the power of control, dismissal, and imposition of disciplinary measures, which are indicative of an employer-employee relationship,[20]the same were duly proven by the following: (1) memorandum[21]duly noted by Wilfredo Alejaga, petitioners station manager, calling the attention of the Drama Department to the late submission of scripts by writers and the tardiness and absences of directors and talents, as well as the imposable fines ofP100 toP200 for future infractions; (2) the memorandum[22]of the station manager directing respondent Oberio to explain why no disciplinary action should be taken against him for punching the time card of a certain Mrs. Fe Oberio who was not physically present in their office; and (3) the station managers memorandum[23]suspending respondent Oberio for six days for the said infraction which constituted violation of petitioners network policy.All these, taken together, unmistakably show the existence of an employer-employee relationship.Not only did petitioner possess the power of control over their work but also the power to discipline them through the imposition of fines and suspension for violation of company rules and policies.Finally, we find that respondents were illegally dismissed.In labor cases, the employer has the burden of proving that the dismissal was for a just cause; failure to show this would necessarily mean that the dismissal was unjustified and, therefore, illegal.To allow an employer to dismiss an employee based on mere allegations and generalities would place the employee at the mercy of his employer; and the right to security of tenure, which this Court is bound to protect, would be unduly emasculated.[24]In this case, petitioner merely contended that it was respondents who ceased to report to work, and never presented any substantial evidence to support said allegation.Petitioner therefore failed to discharge its burden, hence, respondents were correctly declared to have been illegally dismissed.Furthermore, if doubtsexist between the evidence presented by the employer and the employee, the scales of justice must be tilted in favor of the latter the employer must affirmatively show rationally adequate evidence that the dismissal was for a justifiable cause.It is a time-honored rule that in controversies between a laborer and his master, doubtsreasonably arising from the evidence should be resolved in the formers favor.The policy is to extend the doctrine to a greater number of employees who can avail of the benefits under the law, which is in consonance with the avowed policy of the State to give maximum aid and protection oflabor.[25]When a person is illegallydismissed, he is entitled toreinstatement without loss of seniority rights and other privileges and to his fullbackwages.In the event, however, that reinstatementis no longer feasible, or if the employee decides not to be reinstated, the employer shall payhimseparation pay in lieu ofreinstatement.Such a rule is likewise observed in the case of a strainedemployer-employee relationship or when the work or position formerly held by the dismissed employee no longer exists.In sum, an illegallydismissed employee is entitled to: (1) eitherreinstatement if viable or separation payifreinstatement is no longer viable, and (2)backwages.In the instant controversy, reinstatement is no longer viable considering the strained relations between petitioner and respondents.As admitted by the latter, the complaint filed before the DOLE strained their relations with petitioner who eventually dismissed them from service.Payment of separation pay instead of reinstatement would thus better promote the interest of both parties.Respondents separation pay should be computed based on their respectiveone (1) month pay, or one-half (1/2) month pay for every year of service, whichever is higher,reckoned from their first day of employment up to finality of this decision.Full backwages, on the other hand, should be computed from the date of their dismissal until the finality of this decision.[26]WHEREFORE, the petition isDENIED.TheJuly 30, 2004 Decision of the Court of Appeals in CA-G.R. SP No. 77098, finding respondents to be regular employees of petitioner and holding them to be illegally dismissed and directing petitioner to pay full backwages, isAFFIRMEDwith theMODIFICATIONthat petitioner is ordered to pay respondents their separation pay instead of effecting their reinstatement.Lakas sa Industriya ng Kapatirang Haligi ngAlyansa-Pinagbuklad ng Promo ng Burlingame (LIKHA-PMPB) v.Burlingame CorporationFacts:LIKHA-PMPB filed a petition for certification electionbefore the DOLE which they sought to represent the rank-and-file promo employees of Burlingame Corporation.They prayed to be recognized to the CBA agent or inalternative a certification consent election be heldamongthe rank-and-file promo employees. Respondents filed amotion to dismiss and averred that there isno employer-employee relationship between it and the petitionersmembers. They further alleged that thepetitioners areemployees of F. Garil Manpower Services (F. Garil) whichthey presented a copy of its contract for manpowerservices with F. Garil.Med-Arbiter Parungo dismissed thepetition for the lack of employer-employee relationship.The petitioners filed the appeal to the secretary of Laborwhich ordered the immediate conduct of a certification ofelection. A motion for reconsideration was filed by therespondent but was denied. The respondent filed anothercomplaint before the CA which reversed the decision ofthe Secretary. The petitioners filed amotion forreconsideration but CA denied and hence thispetition.Issue: Whether or not there is employer-employeerelationship between the petitioners and Burlingame Co.?W/N F. Garil is an independent contractoror a labor-onlycontractor?Held:YesThe four fold test will show that respondent is theemployer of the petitioner members. The elementstodetermine existence of employment relationship: a. theselection and engagement of the employees; b. thepayment of wages; c. the powerof dismissal; and theemployers power tocontrol the employees conduct. Themost important is the control ofthe employers control ofthe employees conduct, not only as to the result of thework to be done, but also asto the means and methods toaccomplish it.The contractual stipulations between Burlington and F.Garil shows that anypersonnel found to be inefficient,troublesome, uncooperative, and not observing the rulesand regulations set forth by Burlingame shall be reportedto F. Garil and may be replaced upon request. Thiscircumstance shows that Burlingame has control andsupervision over workers supplied by F. Garil. There is alsoan implied provision on the replacement of personnelcarried upon the request by Burlingame is the power tofire personnel.F. Garilis notan independent contractorsince it did not carry adistinct business free from thecontrol and supervision of Burlingame.The contractual stipulation of between Burlingame andpersonnel provided by F. Garil on the nonexistence ofemployer-employee relationshiphas nolegal effectbecause it is contrary tolaw, morals, good customs, publicorder or public policy. F.Garil was engage onlyin labor-only contracting and considered merely as an agentofBurlingame.Decision: Challenged decision of CA and Resolution isreversed and set aside.The decision of Secretary of Laboris reinstated.6 |BAUTISTA. BLANCAFLOR. ESCUCHA. EUSORES. LOYOLA. SALUD. VIBANDOR.9.Far East Agricultural Supply, Inc. and/ or Alexander Uy,petitionersvs. Jimmy Lebatique and the Court of AppealsFacts:Far East hired Lebatique as a truck driver. Lebatiquecomplained or non-payment or overtime work when hewas required of make a second delivery on Novaliches,QC. On the same day, Manuel Uy, thebrother ofAlexander Uy, suspended Lebatique for illegal use ofcompany vehicle. Though suspended, Lebatique reportedfor work the next daybut was prohibited from enteringthe premises of the petitioner.Lebatique asked help from the DOLE Public Assistanceand Complaints Unit concerning the nonpayment of hisovertime pay. Two days later, he received a telegramrequiring him to go to work. Whenhe did, Alexanderasked why he was claiming overtime pay. Lebatiqueexplained that he never receivedany overtime pay sincehe worked for the company and that Manuel firedhim.After talking to Manuel, Alexander then told Lebatiquethat he was terminated and should look for anotherjob.The LA found that Lebatique was illegally dismissed. Onappeal, the NLRC reversed theLA and dismissed thecomplaint. It held that there was nodismissal sinceLebatique was merely suspended. It also held thatLebatique was a field personel and was not entitled toovertime and service incentive pay. Lebatique filed apetition for certiorati with the CA. The CA reversed theNLRC decision and held that Lebatique was illegallydismissed.Issue:1.Whether Lebatique was illegally dismissed2.Whether Lebatique was a field personnel,not entitled to overtime pay.Decision:Petition is Denied.The petitioners have the burden of proof toshow thatLebatique was not illegally dismissed. The latter contendthat Lebatique abandoned his job. To constituteabandonment, (1) the absence must be without justifiablereason and (2) there must be aclear intention, asmanifested by some overt act, to sever the employer-employee relationship. In this case, the petitioners failedto prove that Lebatique abandoned his job. WhenAlexander told Lebatique to look for another job,thelatter was in effect dismissed.Lebatique is not a field personel as contemplated inSec.2 of the Labor Code.As company drivers, (1) they aredirected to deliver the goods ata specified time and place;(2) they are not given thediscretion to solicit, elect andcontact prospective clients; and (3) Far East issued adirective requiring the drivers to stay at the clientspremises durng truck-ban. Hence, they are under thecontrol and supervision of the management.

PNOC-energy Development Corporation, SouthernNegros Geothermal Project,petitioner,vs.National LaborRelations Commission, et. al.Petitioner PNOC-Energy Development Corporation is agovernment-owned and controlled corporation. ItsSouthern Negros Geothermal Production Field in NegrosOriental is divided into two phases: Palinpinon I (PAL I)and Panlinpinon II (PAL II). Due to theincrease in thenumber of activities in PAL II, PNOC hired the respondentsin the Administration and Maintenance Section. After theexpiration of their initial employment contracts, the samewere renewed and extended.On May 29, 1998, PNOC submitted reports to the DOLEstating that 6 of its employees were being terminated.PNOC also furnished the respondents with notices oftermination, stating that they were beingterminated dueto the substantial completion of PAL II.The respondents filed with the NLRC a complaint forillegal dismissal against PNOC. According to them, theyrendered continuous and satisfactory services from thedate of their employment until they wereillegallydismissed. In addition, the respondents claimed that thedismissal was a clear case of union busting. PNOC on theother hand argued that the respondents were contractualemployees and cannot claim that they were illegallydismissed since their contracts have already expired dueto the completion of the PAL II.The Labor Arbiter dismissed the complaint for lack oflegal and factual basis. The LA ruled that respondentswere not dismissed from work and theemployer-employee relationship was terminated upon theexpiration of the employment contracts. The respondentsappealed to the NLRC which reversed the LAs decision.The NLRC ruled that the respondents were regular non-employment employees having worked for more than oneyear. The respondents filed a Motion for Reconsiderationwhich the NLRC denied. The PNOC field a petition forcertiorari before the CA. the CA dismissed the petition andaffirmed the decision of the NLRC.Issue:1.Whether the respondents were project orregular employees2.Whether or not they were illegallydismissed.Petition is denied.On the first issue, the respondents were considered asregular employees. Article 280 of the Labor Code definesregular and contractual employees. To be considered asaproject employee, the workers hired must be (1) for aspecific project of undertaking, and (2) thecompletion ortermination of such project has beendetermined at thetime of the engagement of the employee. In this case,PNOC failed to prove that the respondents were hired asmerely project employees. The employment contractswere too vague to be considered as a specificundertaking contemplated by law. Moreover, PNOCs actof repeatedly and continuously hiring respondents beliesthe contention that the respondents were hired for aspecific project.The length of service is notthe controlling test ofemployment. To determine whether the employee washired for a specific undertaking, it isnecessary to know ifthe employee was hired for aspecific purpose or toperform functions vital, necessary, and indispensable tothe usual business of the employer. However, in this case,the respondents are not considered as project employeessince they were consistently re-hired by PNOC. With this,they are removed from the scope of project employees.On the second issue, since the respondents aredeemed regular employees, they are entitled to securityof tenure as provided in Article 279of the Labor Code.PNOC bears the burden of proof to prove that therespondents were not illegally dismissed. In this case, theyfailed to do so. There was no proof thatthe projects towhich the respondents were assigned to were alreadycompleted. The PNOC only contends that the same weresubstantially completed, contrary tothe notices oftermination which stated that the respondents wereterminated due to the completion of the project.Olongapo Maintenance Vs. ChantengcoJune 21, 2007Facts:Olongapo maintenance Services Inc. (OMSI) is engaged inthe business of providing janitorialand maintenanceservices to various clients, one of which was Manilainternational airport authority (MIAA). Respondents arejanitors, grass cutters and degreasers who were assignedat the airport by OMSI. On January 1999, OMSI terminatedrespondents on the ground that latter are projectemployees. According to OMSI, their employment beingcoterminous with OMSIs contract with MIAA, when saidcontract ended, the respondents tenures are over.Respondents claim of illegal dismissal.Issue: W/N respondents are project based or regularemployees.HELD:Respondents are regular employees. The principal test indetermining whether an employee is a projectemployeeis whether:1.He/she isassigned to carry out a specificproject or undertaking, theduration andscope of which are specified at the timethe employee is engagedin the project,OR2.Where theworkor service to beperformedis seasonal in natureand theemployment is for the duration of theseason.A true project employeeshould be assigned to a projectwhich begins and ends at determined or determinabletimes, and be informed thereof atthe time of hiring.In the instant case, there is no proof thatrespondentsengagement as project employees has beenpredetermined, as required by law. OMSIdid not provideevidence that respondents were informed that they wereto be assigned toa specific project or undertakingat thetime they were hired.The employment contracts for thespecific project signed by the respondents were neverpresented.All that OMSI submitted are theservicecontracts betweenOMSI and theMIAA.Clearly,OMSIfailed to establish their case by substantial evidence.Neither could the belated submission of respondentsapplication forms to the CA via a motion forreconsideration benefit OMSI, said practice defeatsspeedy administration of justice.In termination cases, the burden ofproof rests on theemployer to show that the dismissal is for ajust cause.Thus, employers who hire project employees aremandated to state and prove the actual basis for thelatter's dismissal.Unfortunately for OMSI, it failed todischarge the burden.All that we have is OMSIs self-serving assertion that the respondents werehired asproject employees.Tongko vs. Manufacturers LifeNovember 7, 2008Manufacturers Life Insurance Co.(Phils.), Inc. (Manulife) isa corporation engaged in life insurance business.De Dioswas, during the period material, its Presidentand ChiefExecutive Officer. Petitioner Gregorio V. Tongko startedhis professional relationship with Manulife on July 1, 1977by virtue of a Career Agent's Agreement[2](Agreement) heexecuted with Manulife.In the Agreement, itis providedthat:It is understood and agreed that the Agent is anindependent contractor and nothing containedherein shall be construed or interpreted ascreating an employer-employee relationshipbetween the Company and the Agent.x x x xa) The Agent shall canvass for applications for LifeInsurance, Annuities, Group policies and otherproducts offered by the Company, and collect, inexchange for provisional receipts issued by theAgent, money due or to become due to theCompany in respect of applications or policiesobtained by or through the Agent orfrompolicyholders allotted by the Company to theAgent for servicing, subject tosubsequentconfirmation of receipt of payment by theCompany as evidenced by an Official Receiptissued by the Company directly to thepolicyholder.x x xEither of the parties heretomay likewiseterminate his Agreement at any time withoutcause, by giving to the other party fifteen (15)days notice in writing. x x xIn 1983, Tongko was named as aUnit Manager inManulife's SalesAgency Organization.In 1990, he becamea Branch Manager. In 2001, Manulife instituted manpowerdevelopment programs in the regional sales managementlevel. Tongko receiveda letter fromDe Dios, criticizingthe poor performance of Tongkos branch. The saidletteralso criticized Tongkos stubbornness in implementing thecompanys objective of becoming an agentdrivencompany. At the end of the letter, De Dios ordered Tongkoto do the following:1.You will hire at your expense acompetentassistant who can unload you of much of theroutine tasks which can be easily delegated. x x x x2.Effective immediately, Kevin and the rest oftheAgency Operations will deal with the North StarBranch (NSB) in autonomous fashion. x x xI have decided to make this change so as toreduce your span of control and allow youtoconcentrate more fully on overseeing theremaining groups under Metro North, yourCentral Unit and the rest of the Sales Managers inMetro North. I will hold you solely responsible formeeting the objectives of theseremaining groups.When Tongko failed to comply with said directive,Manulife exercised the termination clause in the 1977agreement. Tongko then filed a case forillegal dismissal.Manulife argues that the company did not exercise controlover Tongkos manner of doing his job. It further arguesthat, even assuming arguendo that there exists anemployer-employee relationship, that the termination ofTongkos employment was for just cause, i.e. hisstubbornness to follow company directives.Issue: W/N Tongko, being an insurance agent andadministrative officer, is an employee of the company.Held: Yes. When it comes to Insurance agents, thedetermination of the existence of an employer-employeerelationship is on a case-to-case basis. Control, one of thefour and perhaps the most important determinant of saidrelationship, does not only refer to theemployers controlover the result but also the means and methods to beused in attaining it.It is usual and expectedfor insurance companies topromulgate set of rules to guide commission so that theymay not run afoul of the lawand what it requires orprohibits in selling policies. However, if the specific rulesand regulations enforced against insurance agents ormanagers are such thatwould directly affect the meansand methods by which such agentsor managers wouldachieve the objectives set bythe insurance company, theyare employees of the insurance company.In the instant case, Manulife had thepower of controlover Tongko that would make him its employee. Severalfactors contribute to this conclusion:13 |BAUTISTA. BLANCAFLOR. ESCUCHA. EUSORES. LOYOLA. SALUD. VIBANDOR.1.the Agreement dated July 1, 1977executed between Tongko and Manulifeprovided that an agent of Manulife mustcomply with three requirements: (1)compliance with the regulations andrequirements of the company; (2)maintenance of a level of knowledge ofthe company's products that issatisfactory to the company; and (3)compliance with a quota of newbusinesses.2.Among the company regulations ofManulife are the different codes ofconduct such as the Agent Code ofConduct, Manulife Financial Code ofConduct, and Manulife Financial Code ofConduct Agreement, which demonstratethe power of control exercised by thecompany over Tongko.Thus, with the company regulations and requirementsalone, the fact that Tongko wasan employee of Manulifemay already be established. Certainly, these requirementscontrolled the means and methods by which Tongko wasto achieve the company's goals.More importantly, being a manager, Tongko was tasked toperform administrative duties. In addition, Tongko wastasked to recruit certain numberof agents, in addition tohis other administrative functions. In fact, it is his allegedfailure to follow the companys principle of recruitmentthat led to his termination. These lead tono otherconclusion that he was an employee of Manulife.Manulife also argued that even if Tongko is tobeconsidered as its employee, his employment was validlyterminated due to gross and habitual neglect ofduties,inefficiency, as well as willful disobedience of the lawfulorders of Manulife. However, Manulife's petition failed tocite a single iota of evidenceto support its claims.Manulife did not even point out which order or rule thatTongko disobeyed or a specific act that Tongkowas guiltyof or would constitute gross and habitual neglect ofdutyor disobedience.Manulife merely cited Tongko's alleged "laggardperformance," without substantiating such claim.Whenthere is no showing of a clear, valid and legal cause forthe termination of employment, the law considers thematter a case of illegal dismissal and the burden is on theemployer to prove that the termination was fora valid orauthorized cause.Thus, for not following the two (2)notice rule prior to termination, which would havegivenTongko the opportunity to defend himself, there wasillegal dismissal.Orozco v. 5thdivision of the CA | NachuraG.R. No. 155207, August 13, 2008 | 562SCRA 36FACTSWilhelmina Orozco was a columnist for Philippine DailyInquirer.She started work in March 1990 to write a weeklycolumn entitled the Feminist Reflection inits lifestylesection. She submitted her articles every week exceptfor a 6 monthstint in New York where she still sentseveral articles through mail. She receivedcompensation of P250 which was raised to P 300 perarticle.Sometime 1992, Petitioner claims that her editorLogarta told her that the PDIeditor in chief,Magsanocwanted to stop publishing her column for no reason atall. She later on found out that it was the PDIchairperson,Apostol, who hadasked to stopthepublication but in a phone conversation with Apostol,she was told that Magsanoc informed her (APostol)that the lifestyle section had manycolumnists already.According to PDI sometime 1991, Magsanoc met withthe lifestyle section editor to discuss how to improvesection and in theirjudgement, Orozcos column failedto improve and continued to be superficially and poorlywritten,and failed to meet the high standards of thepaper. Hence they decided to terminate her column.Labor Arbiter and NLRC ruled in favor of Orozco, CAruled otherwise.ISSUES and ARGUMENTSW/N Orozco was an employee of PDI .W/N Orozco was illegally dismissed.Petitioner:She was an employee since PDIcontrols thecontents of her column, has toobserve deadlines and spaceconstraint.No, she was not an employee of PDI.No, she was not illegally dismissed.Petitioner believes that respondents acts are meant tocontrol how she executes her work. The SCdoes notagree. A careful examination reveals that the factorsenumerated by the petitioner areinherent conditionsin running a newspaper. In other words, the so-calledcontrol as to time, space, and discipline are dictated bythe very nature of the newspaper business itself.the employment status of a person is defined andprescribed by law and notby what the parties say itshould be.This Court has constantly adhered to thefour-foldtest to determine whether there exists anemployer-employee relationship between parties. The fourelements of an employment relationship are: (a) theselection and engagement of the employee; (b) thepayment of wages; (c) the power of dismissal; and (d)the employers power to controlthe employeesconduct.Petitioner has misconstrued the control test, as didthe Labor Arbiter and the NLRC.Not all rules imposed by the hiring party on the hiredparty indicate that the latter is anemployee of theformer. Rules which serve as general guidelines towards the achievement of the mutuallydesired resultare not indicative of the powerof control.The newspapers power to approve or rejectpublication of any specific article a columnist writes forher column cannot be the control contemplated in the control test, as it is but logicalthat one whocommissions another to do a piece of work should havethe right to accept or reject the product. Aregularreporter is different. A regular reporter is not asindependent in doing his or her work for thenewspaper.Where a person who works for another performs hisjob more or less at hisown pleasure, in the manner hesees fit, not subject to definite hours orconditions ofwork, and is compensated according tothe result of hisefforts and not the amount thereof, no employer-employee relationship exists.Aside from the control test, this Court hasalso used theeconomic reality test. The economic realities prevailingwithin the activity or between the parties areexamined, taking into consideration the totality ofcircumstances surrounding the true nature of therelationship between the parties. This isespeciallyappropriate when, as in this case, there isno writtenagreement or contract on which to base therelationship. In our jurisdiction, the benchmark ofeconomic reality in analyzing possible employmentrelationships for purposes of applying the Labor Codeought to be the economic dependence of the workeron his employer. Orozcos main occupation is not as acolumnist for respondent but as awomens rightsadvocate working in various womens organizations.Likewise, she herself admits that she also contributesarticles to other publications. Thus, it cannot be saidthat petitioner was dependent on respondent PDI forher continued employment in respondents line ofbusiness.The inevitable conclusion is that petitioner was notrespondent PDIs employee but an independentcontractor, engaged to do independent work.Bisig Manggagawa sa Tryco v. NLRC | NachuraG.R. No.151309, October 15, 2008 |569 SCRA 122FactsTryco Pharma Corporation (Tryco) is a manufacturer ofveterinary medicines and its principal office islocated in Caloocan City. Petitioners Joselito Lario, Vivencio Barte, Saturnino Egera and Simplicio Aya-ay are its regular employees, occupying the positions of helper, shipment helper and factory workers, respectively, assigned to the Production Department. They are members of Bisig Manggagawa sa Tryco (BMT), the exclusive bargaining representative of the rank-and-file employees.Tryco and petitioners signed separate Memoranda ofAgreement providing for a compressed workweek schedule. This MOA was in pursuant ofthe DOLE Department Order No. 21, Series of 1990, Guidelines on the Implementation of Compressed workweek.In the MOA, 8 am to 6:12 pm from Mondays to Fridays, shall be considered as the regular working hours, andno overtime pay shall be due and payable to the employee for work rendered during those hours. Should an employee be permitted to or required to work beyond 6:12 pm, suchemployee will be entitled to overtime pay.In Jan 1997, BMT andTryco negotiatedfor the renewal of the CBA but failed to arrive at a new agreement. Sometime March 1997 Tryco received a letter from the Bureau of Animal Industry of the Dep. Of Agriculture reminding it that its production should be conducted in San Rafael, Bulacan and not in Caloocan City. Accordingly, Tryco issued a Memorandum directing petitioners to report to the companys plant site in Bulacan. The petitioners refused to obey. BMT claims thatthis isunfair labor practice.August that same year, the petitioners filed separate complaints for illegal dismissal, underpayment ofwages, non-payment of overtime pay and service incentive leave and refusal to bargain against Tryco and its President. In Trycos defense, the averred that the petitioners were not dismissed but they refused to comply with the managements directive for them to reportto the companys plant in Bulacan. They also saidthat evenlong before the start of the negotiations, the company had already been planning to decongest the Caloocan office to comply with the government policy to shift the concentration of manufacturing activities from the metropolis to the countryside. The decision to transfer the companys production activities to San Rafael, Bulacan was precipitated by the letter-reminder of the Bureau of Animal Industry.ISSUES and ARGUMENTSW/N the petitioners were constructivelydismissed.HELDTrycos decision to transfer itsproduction activities toSan Rafael, Bulacan, regardless of whether it was madepursuant to the letter of the Bureau ofAnimal Industry,was within the scope of its inherent right to control andmanage its enterprise effectively. While the law issolicitous of the welfare of employees,it must alsoprotect the right of an employerto exercise what areclearly management prerogatives. The free will ofmanagement to conduct its own business affairs to achieve its purpose cannot be denied.This prerogative extends to the managements right toregulate, according to its own discretion and judgment, all aspects of employment, including thefreedom to transfer and reassign employees according to therequirements of itsbusiness. Managements prerogative of transferring and reassigning employees from one area of operation toanother in order to meet the requirements of the business is,therefore, generally not constitutive of constructive dismissal. Thus, the consequent transfer of Trycos personnel, assigned to the Production Department was well within the scope of its management prerogative. When the transfer is not unreasonable, or inconvenient, or prejudicial to the employee, and it does not involve a demotion inrank or diminution ofsalaries, benefits, and other privileges, the employee may not complain that it amounts to a constructive dismissal. However, the employer has the burden ofproving that the transfer of an employee is for valid and legitimate grounds. The employer must show that the transfer is not unreasonable, inconvenient, or prejudicial to the employee; nor does it involve a demotion in rank or adiminution of his salaries, privileges and other benefits.Indisputably, in the instant case, the transfer orders do not entail a demotion in rankor diminution of salaries, benefits and other privileges of the petitioners. Petitioners, therefore, anchor their objection solely on the ground that it would cause them great inconvenience since they are all residents of Metro Manila and they would incur additionalexpenses to travel daily from Manila to Bulacan. The Court has previously declared thatmere incidental inconvenience is not sufficient to warrant a claim ofconstructive dismissal. Objection to a transfer that is grounded solely upon the personal inconvenience or hardship that will be caused to the employee byreason of the transfer is not a valid reason to disobey an order of transfer.Unfair labor practice refers to acts that violate theworkers right to organize. Without that element, theacts, no matter how unfair, are not unfair labor practices.Therewas noshowing orany indicationthat the transfer orders were motivated by an intention tointerfere with the petitioners right toorganize.Equipment Technical Services vs. CAFacts: Petitioner Equipment Technical Services (ETS) is engaged in the business of subcontracting plumbing works, one ofits clients isUniwide Sales,Inc.(Uniwide). Petitioner Joseph Dequito was the manager of ETSalthough CA referred to him as ETSPresident. On different occasions ETS hired the services of theprivate respondents as pipe filters, plumbers orthreaders.When ETS experienced financial difficulties with Uniwide and failed to pay for the plumbing work and they were only able to pay 13Th month pay equivalent to 2 weeks salary. Respondents (Albino et. Al) unhappy with the said pay filed a case before theNLRC. Another 2 cases was filed for illegal dismissal and payment of money claims were ETS refused to hire them for another project and the cases were consolidated before the labor arbiter. LaborArbiter Cuyuca issued a decision that respondents were ETS regular and not project employees and ETSwas adjudged liable for illegal dismissal and directed to pay respondent their money claimsplus 10% total award for attorneysfees.ETS appeal and NLRC rendered a resolution reversing labor arbiters decision about respondents status ofemployments and upheld the validity of the monetary award which included backwages.ETS elevated the case to CA via petition for certiorari with the contention that NLRC committed grave abuse ofdiscretion in affirming monetary reward in favor ofrespondents despite on its findings that there was no illegal dismissal. CA rendered judgment that NLRC resolutions are annulled and set aside and ordering ETS to pay respondents holiday pay and service incentive leave pay for the year of 1998 and the balance on their 13thmonth pay for the year of 1999. The case was remanded to Labor Arbiter for thecomputation. Respondents filed aMR for the CAs decision.Issue: W/N respondents are project employees?Held: No. Service of project employees is coterminus(linked that both expire at the sametime) with the project and they may be terminated upon the end or completion of that project or project phase for which they were hired. Regular employees enjoy security of tenure and entitled to hold on to their work orposition until their services are terminated by any of the modes recognizedunder the labor code. The principal test for determined whether anemployee isa project employee assigned to carry out a specificproject or undertaking while a regular employee defined in Art 280 of the Labor Code.CA find that not a single contractof employment fixing the terms of employment or duration of Uniwide project, or any other project submitted by ETS to the Labor Arbiter which contrary to its allegations that the respondents were merely contractual employees. Records of payroll and other documents such as contracts byETS showing that respondent were hired for specific projects was not submitted. Also if respondents were project employees, are port of termination of employment must be submitted by ETS. ETS has failed to support their claim that respondent are project employees. Respondent were initially hired as project employees but their repeated rehiring to perform necessary tasks to the usual trade or business of ETS changed their legal situation to regular employees. Security of tenure covers both regular and project employees. The termination must be lawful cause and must be done in a way which affords them proper notice and hearing. The burden of proving that an employee had been dismissed for a lawful cause under the Labor Codelies with the employer. Decision: Reinstating decision of Labor Arbiter Cuyuca is Affirmed with modification that petitioners are joint and severally ordered to reinstate private respondents with backwages.