TELEVISION
AND PRODUCTION G.R. No. 167648
EXPONENTS, INC. and/or
ANTONIO
P. TUVIERA, Present:
Petitioners,
QUISUMBING,
J.,
Chairperson,
CARPIO,
- versus
- CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
ROBERTO
C. SERVAÑA,
Respondent. Promulgated:
x----------------------------------------------------------------------------x
Tinga,
J.:
This petition for review under Rule
45 assails the
TAPE is a domestic corporation engaged
in the production of television programs, such as the long-running variety
program, “Eat Bulaga!”. Its president is Antonio P. Tuviera (Tuviera). Respondent Roberto C. Servaña had served as a
security guard for TAPE from March 1987 until he was terminated on
Respondent
filed a complaint for illegal dismissal and nonpayment of benefits against
TAPE. He alleged that he was first
connected with Agro-Commercial Security Agency but was later on absorbed by
TAPE as a regular company guard. He was
detailed at Broadway Centrum in P6,000.00. He claimed that the holiday pay, unpaid
vacation and sick leave benefits and other monetary considerations were
withheld from him. He further contended that his dismissal was undertaken
without due process and violative of existing labor laws, aggravated by nonpayment
of separation pay.[3]
In
a motion to dismiss which was treated as its position paper, TAPE countered
that the labor arbiter had no jurisdiction over the case in the absence of an
employer-employee relationship between the parties. TAPE made the following assertions: (1) that respondent
was initially employed as a security guard for Radio Philippines Network (RPN-9);
(2) that he was tasked to assist TAPE during its live productions,
specifically, to control the crowd; (3) that when RPN-9 severed its relationship
with the security agency, TAPE engaged respondent’s services, as part of the
support group and thus a talent, to provide security service to production
staff, stars and guests of “Eat Bulaga!” as well as to control the audience
during the one-and-a-half hour noontime program; (4) that it was agreed that
complainant would render his services until such time that respondent company
shall have engaged the services of a professional security agency; (5) that in
1995, when his contract with RPN-9 expired, respondent was retained as a talent
and a member of the support group, until such time that TAPE shall have engaged
the services of a professional security agency; (6) that respondent was not
prevented from seeking other employment, whether or not related to security
services, before or after attending to his “Eat Bulaga!” functions; (7) that sometime
in late 1999, TAPE started negotiations for the engagement of a professional
security agency, the Sun Shield Security Agency; and (8) that on 2 March 2000, TAPE
issued memoranda to all talents, whose functions would be rendered redundant by
the engagement of the security agency, informing them of the management’s
decision to terminate their services.[4]
TAPE averred that respondent was an
independent contractor falling under the talent group category and was working
under a special arrangement which is recognized in the industry.[5]
Respondent
for his part insisted that he was a regular employee having been engaged to
perform an activity that is necessary and desirable to TAPE’s business for
thirteen (13) years.[6]
On
WHEREFORE, complainant’s position is
hereby declared redundant. Accordingly,
respondents are hereby ordered to pay complainant his separation pay computed
at the rate of one (1) month pay for every year of service or in the total
amount of P78,000.00.[7]
On appeal, the National Labor
Relations Commission (NLRC) in a Decision[8]
dated
We have scoured the records of this case and we find nothing to support the Labor Arbiter’s conclusion that complainant was a regular employee.
x x x x
The primary standard to determine
regularity of employment is the reasonable connection between the particular
activity performed by the employee in relation to the usual business or trade
of the employer. This connection can be
determined by considering the nature and work performed and its relation to the
scheme of the particular business or trade in its entirety. x x x Respondent company is engaged in the
business of production of television shows.
The records of this case also show that complainant was employed by
respondent company beginning 1995 after respondent company transferred from
RPN-9 to GMA-7, a fact which complainant does not dispute. His last salary was P5,444.44 per
month. In such industry, security
services may not be deemed necessary and desirable in the usual business of the
employer. Even without the performance
of such services on a regular basis, respondent’s company’s business will not
grind to a halt.
x x x x
Complainant was indubitably a
program employee of respondent company.
Unlike [a] regular employee, he did not observe working hours x x x. He worked for other companies, such as M-Zet
TV Production, Inc. at the same time that he was working for respondent
company. The foregoing indubitably shows
that complainant-appellee was a program employee. Otherwise, he would have two (2) employers at
the same time.[9]
Respondent
filed a motion for reconsideration but it was denied in a Resolution[10]
dated
Respondent
filed a petition for certiorari with the Court of Appeals contending that the
NLRC acted with grave abuse of discretion amounting to lack or excess of
jurisdiction when it reversed the decision of the Labor
Arbiter. Respondent asserted that he was a regular employee considering
the nature and length of service rendered.[11]
Reversing
the decision of the NLRC, the Court of Appeals found respondent to be a regular
employee. We quote the dispositive
portion of the decision:
IN LIGHT OF THE FOREGOING, the petition
is hereby GRANTED. The Decision dated 22 April 2002 of the
public respondent NLRC reversing the Decision of the Labor Arbiter and its
Resolution dated 28 June 2002 denying petitioner’s motion for reconsideration
are REVERSED and SET ASIDE. The Decision dated P10,000.00 as nominal damages for
non-compliance with the statutory due process.
SO
ORDERED.[12]
Finding
TAPE’s motion for reconsideration without merit, the Court of Appeals issued a
Resolution[13] dated
TAPE
filed the instant petition for review raising substantially the same grounds as
those in its petition for certiorari before the Court of Appeals. These matters
may be summed up into one main issue: whether an employer-employee relationship
exists between TAPE and respondent.
On
At
the outset, it bears emphasis that the existence of employer-employee
relationship is ultimately a question of fact.
Generally, only questions of law are entertained in appeals by
certiorari to the Supreme Court. This rule, however, is not
absolute. Among the several recognized
exceptions is when the findings of the Court of Appeals and Labor Arbiters, on
one hand, and that of the NLRC, on the other, are conflicting,[15]
as obtaining in the case at bar.
Jurisprudence
is abound with cases that recite the factors to be considered in determining
the existence of employer-employee relationship, namely: (a) the selection and
engagement of the employee; (b) the payment of wages; (c) the power of
dismissal; and (d) the employer's power to control the employee with respect to
the means and method by which the work is to be accomplished.[16] The
most important factor involves the control test. Under the control test, there
is an employer-employee relationship when the person for whom the services are
performed reserves the right to control not only the end achieved but also the
manner and means used to achieve that end.[17]
In concluding that respondent was an
employee of TAPE, the Court of Appeals applied the “four-fold test” in this
wise:
First. The selection and hiring of petitioner was done by private respondents. In fact, private respondents themselves admitted having engaged the services of petitioner only in 1995 after TAPE severed its relations with RPN Channel 9.
By informing petitioner through the Memorandum dated
Second. Payment of wages is one of the four factors
to be considered in determining the existence of employer-employee relation. .
. Payment as admitted by private respondents was given by them on a monthly
basis at a rate of P5,444.44.
Third. Of the four elements of the employer-employee relationship, the “control test” is the most important. x x x
The bundy cards representing the time petitioner had reported for work
are evident proofs of private respondents’ control over petitioner more
particularly with the time he is required to report for work during the
noontime program of “Eat Bulaga!” If it
were not so, petitioner would be free to report for work anytime even not
during the noontime program of “Eat Bulaga!” from
TAPE
asseverates that the Court of Appeals erred in applying the “four-fold test” in
determining the existence of employer-employee relationship between it and
respondent. With respect to the elements
of selection, wages and dismissal, TAPE proffers the following arguments: that
it never hired respondent, instead it was the latter who offered his services
as a talent to TAPE; that the Memorandum dated 2 March 2000 served on
respondent was for the discontinuance of the contract for security services and
not a termination letter; and that the talent fees given to respondent were the
pre-agreed consideration for the services rendered and should not be construed
as wages. Anent the element of control, TAPE insists that it had no control
over respondent in that he was free to employ means and methods by which he is
to control and manage the live audiences, as well as the safety of TAPE’s stars
and guests.[19]
The
position of TAPE is untenable. Respondent
was first connected with Agro-Commercial Security Agency, which assigned him to
assist TAPE in its live productions. When the security agency’s contract with
RPN-9 expired in 1995, respondent was absorbed by TAPE or, in the latter’s
language, “retained as talent.”[20] Clearly, respondent was hired by TAPE. Respondent
presented his identification card[21]
to prove that he is indeed an employee of TAPE. It has been in held that in a
business establishment, an identification card is usually provided not just as
a security measure but to mainly identify the holder thereof as a bona fide employee of the firm who
issues it.[22]
Respondent
claims to have been receiving P5,444.44 as his monthly salary while TAPE
prefers to designate such amount as talent fees. Wages, as defined in the Labor Code, are
remuneration or earnings, however designated, capable of being expressed in
terms of money, whether fixed or ascertained on a time, task, piece or
commission basis, or other method of calculating the same, which is payable by
an employer to an employee under a written or unwritten contract of employment
for work done or to be done, or for service rendered or to be rendered. It is beyond dispute that respondent received
a fixed amount as monthly compensation for the services he rendered to
TAPE.
The
Memorandum informing respondent of the discontinuance of his service proves
that TAPE had the power to dismiss respondent.
Control
is manifested in the bundy cards submitted by respondent in evidence. He was required to report daily and observe
definite work hours. To negate the
element of control, TAPE presented a certification from M-Zet Productions to
prove that respondent also worked as a studio security guard for said
company. Notably, the said certificate
categorically stated that respondent reported for work on Thursdays from 1992
to 1995. It can be recalled that during
said period, respondent was still working for RPN-9. As admitted by TAPE, it absorbed respondent
in late 1995.[23]
TAPE further denies exercising
control over respondent and maintains that the latter is an independent
contractor.[24] Aside from possessing substantial capital or
investment, a legitimate job contractor or subcontractor carries on a distinct
and independent business and undertakes to perform the job, work or service on
its own account and under its own responsibility according to its own manner
and method, and free from the control and direction of the principal in all
matters connected with the performance of the work except as to the results
thereof.[25] TAPE
failed to establish that respondent is an independent contractor. As found by the Court of Appeals:
We find the annexes submitted by the private respondents insufficient to prove
that herein petitioner is indeed an independent contractor. None of the above conditions exist in the
case at bar. Private respondents failed
to show that petitioner has substantial capital or investment to be qualified
as an independent contractor. They
likewise failed to present a written contract which specifies the performance
of a specified piece of work, the nature and extent of the work and the term
and duration of the relationship between herein petitioner and private
respondent TAPE.[26]
TAPE relies on Policy Instruction No.
40, issued by the Department of Labor, in classifying respondent as a program
employee and equating him to be an independent contractor.
Policy Instruction No. 40 defines program
employees as—
x x x 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. The engagement of program employees, including those hired by advertising or sponsoring companies, shall be under a written contract specifying, among other things, the nature of the work to be performed, rates of pay and the programs in which they will work. The contract shall be duly registered by the station with the Broadcast Media Council within three (3) days from its consummation.[27]
TAPE failed to adduce any evidence to
prove that it complied with the requirements laid down in the policy instruction. It did not even present its contract with
respondent. Neither did it comply with
the contract-registration requirement.
Even granting arguendo that respondent is a program employee, stills, classifying
him as an independent contractor is misplaced.
The Court of Appeals had this to say:
We cannot subscribe to private respondents’ conflicting theories. The theory of private respondents that
petitioner is an independent contractor runs counter to their very own
allegation that petitioner is a talent or a program employee. An independent contractor is not an employee
of the employer, while a talent or program employee is an employee. The only difference between a talent or
program employee and a regular employee is the fact that a regular employee is
entitled to all the benefits that are being prayed for. This is the reason why private respondents
try to seek refuge under the concept of an independent contractor theory. For if petitioner were indeed an independent
contractor, private respondents will not be liable to pay the benefits prayed
for in petitioner’s complaint.[28]
More importantly, respondent had been
continuously under the employ of TAPE from 1995 until his termination in March
2000, or for a span of 5 years.
Regardless of whether or not respondent had been performing work that is
necessary or desirable to the usual business of TAPE, respondent is still considered
a regular employee under Article 280 of the Labor Code which provides:
Art. 280. Regular and Casual Employment.—The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of engagement of the employee or where the work or service to be performed is seasonal in nature and employment is for the duration of the season.
An employment shall be deemed to be casual if it is not covered by the
preceding paragraph. Provided, that, any employee who has rendered at least one
year of service, whether such service is continuous or broken, shall be
considered a regular employee with respect to the activity in which he is
employed and his employment shall continue while such activity exists.
As a regular employee, respondent
cannot be terminated except for just cause or when authorized by law.[29] It is clear from the tenor of the
Article 283 of the Labor Code provides that the employer may also
terminate the employment of any employee due to the installation of labor
saving devices, redundancy, retrenchment to prevent losses or the closing or
cessation of operation of the establishment or undertaking unless the closing
is for the purpose of circumventing the provisions of this Title, by serving a
written notice on the workers and the Ministry of Labor and Employment at least
one (1) month before the intended date thereof.
In case of termination due to the installation of labor saving devices
or redundancy, the worker affected thereby shall be entitled to a separation
pay equivalent to at least his one (1) month pay or to at least one (1) month
pay for every year or service, whichever is higher.
x x x x
We uphold the finding of the Labor Arbiter that “complainant [herein
petitioner] was terminated upon [the] management’s option to professionalize
the security services in its operations. x x x”
However, [we] find that although petitioner’s services [sic] was for an
authorized cause, i.e., redundancy,
private respondents failed to prove that it complied with service of written
notice to the Department of Labor and Employment at least one month prior to
the intended date of retrenchment. It bears stressing that although notice was
served upon petitioner through a Memorandum dated
Under prevailing jurisprudence the termination for an authorized cause requires
payment of separation pay. Procedurally,
if the dismissal is based on authorized causes under Articles 283 and 284, the
employer must give the employee and the Deparment of Labor and Employment
written notice 30 days prior to the effectivity of his separation. Where the
dismissal is for an authorized cause but due process was not observed, the
dismissal should be upheld. While the
procedural infirmity cannot be cured, it should not invalidate the
dismissal. However, the employer should
be liable for non-compliance with procedural requirements of due process.
x x x x
Under recent jurisprudence, the Supreme Court fixed the amount of P30,000.00
as nominal damages. The basis of the
violation of petitioners’ right to statutory due process by the private
respondents warrants the payment of indemnity in the form of nominal
damages. The amount of such damages is
addressed to the sound discretion of the court, taking into account the
relevant circumstances. We believe this
form of damages would serve to deter employer from future violations of the
statutory due process rights of the employees.
At the very least, it provides a vindication or recognition of this fundamental right
granted to the latter under the Labor Code and its Implementing Rules. Considering the circumstances in the case at
bench, we deem it proper to fix it at P10,000.00.[30]
In sum, we find no reversible error
committed by the Court of Appeals in its assailed decision.
However, with respect to the
liability of petitioner Tuviera, president of TAPE, absent any showing that he acted
with malice or bad faith in terminating respondent, he cannot be held
solidarily liable with TAPE.[31] Thus, the Court of Appeals ruling on this
point has to be modified.
WHEREFORE,
the assailed Decision and Resolution of the Court of Appeals are AFFIRMED with
MODIFICATION in that only petitioner Television and Production Exponents, Inc.
is liable to pay respondent the amount of P10,000.00 as nominal damages
for non-compliance with the statutory due process and petitioner Antonio P.
Tuviera is accordingly absolved from liability.
SO ORDERED.
DANTE O. TINGA Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
ANTONIO T. CARPIO CONCHITA CARPIO MORALES
Associate Justice Associate Justice
PRESBITERO J. VELASCO,
JR.
Associate Justice
ATTESTATION
I attest that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson,
Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution,
and the Division Chairperson’s Attestation, it is hereby certified that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
[1]Rollo, pp. 47-64. Penned by Associate Justice Japar B. Dimaampao and concurred in by Associate Justices Renato C. Dacudao and Edgardo F. Sundiam.
[2]
[16]Dumpit-Murillo v. Court of Appeals, G.R. No. 164652, 8 June 2007, 524 SCRA 290, 302 citing Manila Water Company, Inc. v. Pena, G.R. No. 158255, 8 July 2004, 434 SCRA 53; Coca-Cola Bottlers v. Climaco, G.R. No. 146881, 5 February 2007, 514 SCRA 164, 177; Lakas sa Industriya ng Kapatirang Haligi ng Alyansa-Pinagbuklod ng Manggagawang Promo ng Burlingame v. Burlingame Corporation, G.R. No. 162833, 15 June 2007, 524 SCRA 690, 695.