SECOND DIVISION
|
RAMY GALLEGO, Petitioner, - versus - BAYER
PHILIPPINES, INC., DANPIN GUILLERMO, PRODUCT IMAGE MARKETING, INC., and
EDGARDO BERGONIA, Respondents. |
G.R. No. 179807 Present: QUISUMBING,
J., Chairperson, CARPIO
MORALES, CHICO-NAZARIO,* LEONARDO-DE CASTRO,** and PERALTA,***
JJ. Promulgated: July
31, 2009 |
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D E C I S I O N
CARPIO
MORALES, J.:
Ramy Gallego (petitioner) was contracted
in April 1992 by Bayer Philippines, Inc. (BAYER) as crop protection
technician to promote and market BAYER products.[1] Under the supervision of Aristeo Filipino,
BAYER sales representative for Panay Island, petitioner made farm visits to
different municipalities in Panay Island to convince farmers to buy BAYER
products.[2]
In 1996, petitioner’s employment with
BAYER came to a halt, prompting him to seek employment with another company. BAYER eventually reemployed petitioner, however,
in 1997 through Product Image and Marketing Services, Inc. (PRODUCT IMAGE) of
which respondent Edgardo Bergonia (Bergonia) was the President and General
Manager, performing the same task as that of crop protection technician –
promoting BAYER products to farmers and dealers in Panay Island – solely for
the benefit of BAYER.[3]
By petitioner’s claim, in October,
2001, he was directed by Pet Pascual, the newly assigned BAYER sales
representative, to submit a resignation letter, but he refused; and that in
January, 2002, he was summoned by his immediate supervisors including respondent
Danpin Guillermo (Guillermo), BAYER District Sales Manager for Panay, and was ordered
to quit his employment which called for him to return all pieces of service
equipment issued to him, but that again he refused.[4]
Still
by petitioner’s claim, he continued performing his duties and receiving
compensation until the end of January, 2002;
that on April 7, 2002, he received a memorandum that his area of
responsibility would be transferred to Luzon, of which memorandum he sought
reconsideration but to no avail; and that
Guillermo and Bergonia spread rumors that reached the dealers in Antique to the
effect that he was not anymore connected with BAYER and any transaction with
him would no longer be honored as of April 30, 2002.[5]
Believing that his employment was terminated, petitioner lodged on June
6, 2002 a complaint for illegal dismissal with the National Labor Relations
Commission (NLRC) against herein respondents Bayer,
Guillermo, Product Image, and
Bergonia, with claims for reinstatement, backwages and/or separation pay,
unpaid wages, holiday pay, premium pay, service incentive leave and allowances,
damages and attorney’s fees.[6]
Respondents BAYER and Guillermo denied
the existence of an employer-employee relationship between BAYER and
petitioner, explaining that petitioner’s work at BAYER was simply occasioned by
the Contract of Promotional Services that BAYER had executed with PRODUCT IMAGE
whereby PRODUCT IMAGE was to promote and market BAYER products on its (PRODUCT
IMAGE) own account and in its own manner and method. They added that as an independent contractor,
PRODUCT IMAGE retained the exclusive power of control over petitioner as it
assigned full-time supervisors to exercise control and supervision over its
employees assigned at BAYER.[7]
Respondents PRODUCT IMAGE and
Bergonia, on the other hand, admitted that petitioner was hired as an employee
of PRODUCT IMAGE on April 7, 1997 on a contractual basis to promote and market
BAYER products pursuant to the Contract of Promotional Services forged between it
and BAYER. They alleged that petitioner
was a field worker who had no fixed hours and worked under minimal supervision,
his performance being gauged only by his accomplishment reports duly certified
to by BAYER acting as his de facto
supervisor;[8] that petitioner was originally assigned to
Iloilo but later transferred to Antique;
that petitioner was not dismissed, but went on official leave from January 23 to
31, 2002, and stopped reporting for work thereafter; and that petitioner was supposed to have been
reassigned to South Luzon effective March 15, 2002 in accordance with a
personnel reorganization program, but he likewise failed to report to his new
work station.[9]
By Decision of May 6, 2004,[10]
the Labor Arbiter declared respondents guilty of illegal dismissal, disposing
as follows:
WHEREFORE, judgment is rendered declaring respondents, Bayer Phil. Inc./Danpin
Guillermo and Product Image Marketing Services, Inc./Edgardo Begornia [sic] guilty of Illegal Dismissal and is
hereby ORDERED to Reinstate complainant to his former or
equivalent position ten (10) days from receipt hereof and to immediately pay
complainant upon receipt of this decision the following:
Backwages Php 228,000.00
13th
Month Pay Php 19,000.00
Service
Incentive Leave Pay Php 4,750.00
Attorney’s
Fees ` Php 26,125.00
Total: Php 287,375.00
In
so deciding, the Labor Arbiter found, among other things, that there was an
employer-employee relationship between BAYER and petitioner since BAYER
furnished petitioner the needed facilities and paraphernalia, and fixed the
methodology to be used in the performance of his work.
On appeal by respondents, the NLRC reversed
the Decision of the Labor Arbiter and dismissed petitioner’s complaint by
Decision of February 22, 2006,[11]
holding that as an independent contractor, PRODUCT IMAGE was the employer of
petitioner but there was no evidence that petitioner was dismissed by either
PRODUCT IMAGE or BAYER. Sustaining
PRODUCT IMAGE’s claim of abandonment, it held that an employee is deemed to
have abandoned his job if he failed to report for work after the expiration of a
duly approved leave of absence or if, after being transferred to a new
assignment, he did not report for work anymore.
Petitioner’s Motion for
Reconsideration having been denied by Resolution of May 25, 2006,[12]
he appealed to the Court of Appeals via
Certiorari.[13]
By Resolution of September 25, 2006,
the appellate court dismissed petitioner’s petition for failure to attach to it
the complaint and the parties’ respective position papers filed with the Labor
Arbiter.[14] His Motion for Reconsideration having been
denied by Resolution of August 14, 2007,[15]
petitioner comes before this Court via the present Petition for Review on
Certiorari.
Petitioner argues that the appellate
court erred in dismissing his petition outright considering that it had
previously allowed subsequent submission of required documents not attached to
a petition for certiorari; and that he attached the required pleadings to his
Motion for Reconsideration with the appellate court. Moreover, he contends that respondents failed
to discharge the burden of proving the validity of his dismissal in order to
overturn the finding of the Labor Arbiter that he was illegally dismissed.[16]
BAYER and Guillermo counter that
petitioner raised factual issues in his petition before the appellate court which
are not reviewable by certiorari; that petitioner’s failure to attach the
required pleadings to his petition before the appellate court, coupled with his
failure to offer any justification therefor, provides no occasion for a liberal
application of the rules in his favor; that petitioner has no cause of action
against them as his employer is PRODUCT IMAGE; and that assuming that petitioner
is entitled to his money claims, the same should be enforced against the
performance bond posted by PRODUCT IMAGE to cover the claims of its employees
assigned at BAYER.[17]
PRODUCT IMAGE and Bergonia postulate
in their Comment that the appellate court’s outright dismissal of petitioner’s
appeal was proper in view of, among other things, the summary nature of
proceedings in labor cases. They also
contend that petitioner’s present petition suffers from the following
infirmities: (1) it does not contain an affidavit of service; (2) it is not
accompanied by petitioner’s Petition for Certiorari before the appellate court;
(3) it does not specify the errors of law allegedly committed by the appellate
court; (4) it is not accompanied by proof of service upon the adverse party of
a copy of the payment of docket fees; (5) it raises questions of fact; and (6)
it impleads the NLRC and imputes grave abuse of discretion to the appellate
court, thereby implying that the petition is likewise made under Rule 65 of the
Rules of Court. Lastly, they maintain
that petitioner was not dismissed as he actually abandoned his job.[18]
The Court
shall first resolve the procedural issues.
Only errors of law are generally
reviewed by this Court in petitions for review on certiorari of the appellate court’s decisions,[19]
and the question of
whether an employer-employee relationship exists in a given case is essentially
a question of fact.[20] Be that as it may, when, as here, the findings of the NLRC contradict those of the Labor
Arbiter, this Court, in the exercise of its equity jurisdiction, may look into
the records of the case and reexamine the questioned findings.[21]
Respecting the appellate court’s dismissal of petitioner’s
Petition for Certiorari for his failure to attach thereto the relevant
pleadings filed with the Labor Arbiter, the requirement to attach the same under Section 1, Rule 65[22]
is considered vis a vis Section 3,
Rule 46[23]
which states that the failure of the petitioner to comply with any of the
documentary requirements, such as the attachment of relevant pleadings, “shall
be sufficient ground for the dismissal of the petition.” By and large, the outright dismissal of a petition
for failure to comply with said requirement cannot be assailed as constituting
either grave abuse of discretion or reversible error of law.[24]
The Court,
however, is inclined to, as it does, overlook petitioner’s failure to attach
the subject relevant pleadings to his Petition for Certiorari before the
appellate court in view of the serious matters dealt with in this case. That brings the Court to consider the substantial merits of the case,
thus rendering it unnecessary to still discuss the other procedural matters
raised by respondents.
In the
main, the substantive issues are: whether
PRODUCT IMAGE is a labor-only contactor and BAYER should be deemed petitioner’s
principal employer; and whether petitioner was illegally dismissed from his
employment.
Permissible job contracting or
subcontracting refers to an arrangement whereby a principal agrees to farm out
with a contractor or subcontractor the performance of a specific job, work, or
service within a definite or predetermined period, regardless of whether such
job, work or, service is to be performed or completed within or outside the
premises of the principal.[25] Under this arrangement, the following conditions
must be met: (a) the contractor carries
on a distinct and independent business and undertakes the contract work on his
account under his own responsibility according to his own manner and method,
free from the control and direction of his employer or principal in all matters
connected with the performance of
his work except as to the results thereof; (b) the
contractor has substantial capital
or investment; and (c) the agreement between the principal and
contractor or subcontractor assures the contractual employees’ entitlement to
all labor and occupational safety and health standards, free exercise of the
right to self-organization, security of tenure, and social welfare benefits.[26]
In
distinguishing between permissible job contracting and prohibited labor-only
contracting,[27] the totality of the facts and the surrounding
circumstances of the case are to be considered,[28] each
case to be determined by its own facts, and all the features of the
relationship assessed.[29]
In the
case at bar, the Court finds substantial evidence to support the finding of the
NLRC that PRODUCT IMAGE is a legitimate job contractor.
The
Court notes that PRODUCT IMAGE was issued by the Department of Labor and
Employment (DOLE) Certificate of Registration Numbered NCR-8-0602-176 reading:
CERTIFICATE OF REGISTRATION
Numbered NCR-8-0602-176
issued
to
Mr. Edgardo V. Bergonia
President
PRODUCT IMAGE & MARKETING SERVICES,
INC.
Unit 5& 6 GF J & L Bldg., 251 EDSA
Greenhills,
for having complied with the requirements as provided for under the Labor Code, as amended, and its implementing Rules and having paid the registration fee in the amount of ONE HUNDRED (P100) PESOS per Official Receipt Number 6530485Y, dated 21 June 2002.[30]
The DOLE
certificate having been issued by a public officer, it carries with it the
presumption that it was issued in the regular performance of official duty.[31] Petitioner’s bare assertions fail to rebut
this presumption. Further, since the DOLE is the agency primarily responsible for
regulating the business of independent job contractors, the Court can presume,
in the absence of evidence to the contrary, that it had thoroughly evaluated
the requirements submitted by PRODUCT IMAGE before issuing the Certificate of
Registration.
Independently of the DOLE’s Certification,
among the circumstances that establish the status of PRODUCT IMAGE as a
legitimate job contractor are: (1) PRODUCT IMAGE had, during the period in
question, a contract with BAYER for the promotion and marketing of BAYER
products;[32]
(2) PRODUCT IMAGE has an independent business and provides services nationwide
to big companies such as Ajinomoto Philippines and Procter and Gamble
Corporation;[33]
and (3) PRODUCT IMAGE’s total assets from 1998 to 2000 amounted to P405,639, P559,897, and P644,728,
respectively.[34] PRODUCT IMAGE also posted a bond in the
amount of P100,000 to answer for any claim of its employees for unpaid
wages and other benefits that may arise out of the implementation of its
contract with BAYER.[35]
PRODUCT IMAGE cannot thus be considered a
labor-only contractor.
The
existence of an employer-employee relationship is determined on the basis of
four standards, namely: (a) the manner
of selection and engagement of the putative employee; (b) the mode of payment
of wages; (c) the presence or absence of power of dismissal; and (d) the
presence or absence of control of the putative employee’s conduct. Most determinative among these factors is the
so-called “control test.”[36]
The presence of the first requisite which
refers to selection and engagement is evidenced by a document entitled Job
Offer, whereby PRODUCT IMAGE offered to hire petitioner as crop protection
technician effective April 7, 1997, which offer petitioner accepted.[37]
On the second requisite regarding the payment of
wages, it was PRODUCT IMAGE that paid the wages and other benefits of
petitioner, pursuant to the stipulation in the contract between PRODUCT IMAGE
and BAYER that BAYER shall pay PRODUCT IMAGE an amount based on services
actually rendered without regard to the number of personnel employed by PRODUCT
IMAGE; and that PRODUCT IMAGE shall faithfully comply with the provisions of
the Labor Code and hold BAYER free and harmless from any claim of its employees
arising from the contract.[38]
As to the third requisite which
relates to the power of dismissal, and the fourth requisite which relates to the
power of control, both powers are vested in PRODUCT IMAGE. The Contract of Promotional Services provides
that PRODUCT IMAGE shall have the power to discipline its employees assigned at
BAYER, such that no control whatsoever shall be exercised by BAYER over those
personnel on the manner and method by which they perform their duties,[39]
and that all directives, complaints, or observations of BAYER relating to the
performance of the employees of PRODUCT IMAGE shall be addressed to the latter.[40]
If at all, the only control measure
retained by BAYER over petitioner was to act as his de facto supervisor in certifying to the veracity
of the accomplishment reports he submitted to PRODUCT IMAGE. This is by no means the kind of control that
establishes an employer-employee relationship as it pertains only to the
results and not the manner and method of doing the work. It would be a rare contract of service that gives
untrammelled freedom to the party hired and eschews any intervention whatsoever
in his performance of the engagement.[41] Surely, it would be foolhardy for any company
to completely give the reins and totally ignore the operations it has
contracted out.[42]
In fine, PRODUCT IMAGE is ineluctably
the employer of petitioner.
Respecting the issue of illegal
dismissal, the Court appreciates no evidence that petitioner was
dismissed. What it finds is that
petitioner unilaterally stopped reporting for work before filing a complaint
for illegal dismissal, based on his belief that Guillermo and Bergonia had
spread rumors that his transactions on behalf of BAYER would no longer be
honored as of April 30, 2002. This
belief remains just that – it is unsubstantiated. While in cases of illegal dismissal, the employer bears the
burden of proving that the dismissal is for a valid or authorized cause, the
employee must first establish by substantial evidence the fact of dismissal.[43]
WHEREFORE, the
petition is, in light of the foregoing, DENIED.
SO ORDERED.
CONCHITA
CARPIO MORALES
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
|
MINITA V. CHICO NAZARIO Associate Justice |
TERESITA J. LEONARDO-DE CASTRO Associate Justice |
|
|
|
|
DIOSDADO M.
PERALTA
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
CERTIFICATION
Pursuant to
Section 13, Article VIII of the Constitution, and the Division Chairperson’s
Attestation, I certify 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
* Additional member per Special Order No. 658.
** Additional member per Special Order No. 635.
*** Additional member per Special Order No. 664.
[1] NLRC records, p. 42.
[2]
[3] Ibid.
[4]
[5] Ibid.
[6]
[7] Vide Position Paper for BAYER and Mr. Guillermo, id. at 51-88.
[8] Vide Position Paper for PRODUCT IMAGE and Mr. Bergonia, id. at 315-326.
[9] Ibid.
[10]
[11]
[12]
[13] CA rollo, pp. 3-11.
[14]
[15]
[16] Vide
Petition for Review, rollo, pp. 4-17.
[17] Vide Comment of BAYER and Mr. Guillermo, id. at 135-182.
[18] Vide Comment of PRODUCT IMAGE and Mr. Bergonia, id. at 369-380.
[19] Mitsubishi Motors Philippines Corporation
v. Chrysler
[20] Manila Water Company, Inc. v. Pena, G.R. No. 158255, July 8, 2004, 434 SCRA 53, 58.
[21] Diamond Motors Corporation v. Court of Appeals, 462 Phil. 452, 458 (2003).
[22] SECTION 1.
Petition for certiorari. — When any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its or
his jurisdiction, or with grave abuse of discretion amounting to lack or excess
of [its or his] jurisdiction, and there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby may
file a verified petition in the proper court, alleging the facts with certainty
and praying that judgment be rendered annulling or modifying the proceedings of
such tribunal, board or officer, and granting such incidental reliefs as law
and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46.
[23] SEC. 3. Contents and filing of petition;
effect of non-compliance with requirements. — The petition shall contain the
full names and actual addresses of all the petitioners and respondents, a
concise statement of the matters involved, the factual background of the case,
and the grounds relied upon for the relief prayed for.
In actions filed under Rule 65, the petition shall
further indicate the material dates showing when notice of the judgment or
final order or resolution subject thereof was received, when a motion for new
trial or reconsideration, if any, was filed and when notice of the denial
thereof was received.
It shall be filed in seven (7) clearly legible copies
together with proof of service thereof on the respondent with the original copy
intended for the court indicated as such by the petitioner and shall be
accompanied by a clearly legible duplicate original or certified true copy of
the judgment, order, resolution, or ruling subject thereof, such material
portions of the record as are referred to therein, and other documents relevant
or pertinent thereto. The certification shall be accomplished by the proper
clerk of court or by his duly-authorized representative, or by the proper
officer of the court, tribunal, agency or office involved or by his duly
authorized representative. The other requisite number of copies of the petition
shall be accompanied by clearly legible plain copies of all documents attached
to the original.
x x x x
The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition.
[24] Vide Philippine Agila Satellite Inc. v. Trinidad-Lichauco, G.R. No.
142362,
[25] Acevedo v. Advanstar Company, Inc., G.R. No. 157656, November 11, 2005, 474 SCRA 656, 667.
[26] Vide
Purefoods Corporation v. National Labor Relations Commission, G.R. No.
172241,
[27] In legitimate job contracting, the law
creates an employer-employee relationship for a limited purpose, i.e., to ensure that the employees are
paid their wages. The principal employer
becomes jointly and severally liable with the job contractor only for the
payment of the employees’ wages whenever the contractor fails to pay the
same. Other than that, the principal
employer is not responsible for any claim made by the employees.
On the other hand, in labor-only contracting, the statute creates an employer-employee
relationship for a comprehensive purpose: to prevent a circumvention of labor
laws. The contractor is considered
merely an agent of the principal employer and the latter is responsible to the
employees of the labor-only contractor as if such employees had been directly
employed by the principal employer. The
principal employer therefore becomes solidarity liable with the labor-only contractor
for all the rightful claims of the employees. [San Miguel Corporation v. MAERC Integrated Services, Inc., 453
Phil. 543, 566-567 (2003)]
[28] Sasan, Sr., et. al. v. National Labor
Relations Commission, G.R. No. 176240,
[29] Encyclopaedia Britannica (Phils.), Inc. v. National Labor Relations Commission, 332 Phil. 1, 9 (1996).
[30] Rollo,
p. 244.
[31] Vide Rules of Court, Rule 131 Section 3(m).
[32] NLRC Records, pp. 116-122.
[33]
[34]
[35]
[36] De los Santos v. National Labor Relations Commission, 423 Phil. 1020, 1029 (2001).
[37] NLRC Records, p. 362.
[38]
[39] Ibid.
[40] Ibid.
[41] Insular Life Assurance Co., Ltd. v. NLRC, G.R. No. 84484, November 15, 1989, 179 SCRA 459, 464-465.
[42] Purefoods Corporation v. National Labor Relations Commission, supra note 26.
[43] Vide
Ledesma, Jr. v. National Labor Relations
Commission, G.R. No. 174585,