Republic of the
Supreme Court
THIRD DIVISION
|
ATOK BIG WEDGE COMPANY, INC., Petitioner, -
versus - jESUS P. GISON, Respondent. |
G.R. No. 169510 Present: CARPIO,* J., VELASCO, JR., J., Chairperson, BRION,** PERALTA, and SERENO,*** JJ.
Promulgated: August 8, 2011 |
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D E C I S I O N
PERALTA, J.:
This
is a petition for review on certiorari seeking
to reverse and set aside the Decision[1]
dated
The procedural and factual antecedents are as follows:
Sometime in February 1992, respondent Jesus P. Gison was engaged as part-time consultant on retainer basis by petitioner Atok Big Wedge Company, Inc. through its then Asst. Vice-President and Acting Resident Manager, Rutillo A. Torres. As a consultant on retainer basis, respondent assisted petitioner's retained legal counsel with matters pertaining to the prosecution of cases against illegal surface occupants within the area covered by the company's mineral claims. Respondent was likewise tasked to perform liaison work with several government agencies, which he said was his expertise.
Petitioner
did not require respondent to report to its office on a regular basis, except
when occasionally requested by the management to discuss matters needing his
expertise as a consultant. As payment
for his services, respondent received a retainer fee of P3,000.00 a
month,[3]
which was delivered to him either at his residence or in a local
restaurant. The parties executed a
retainer agreement, but such agreement was misplaced and can no longer be
found.
The said arrangement continued for the next eleven years.
Sometime
thereafter, since respondent was getting old, he requested that petitioner
cause his registration with the Social Security System (SSS), but petitioner
did not accede to his request. He later
reiterated his request but it was ignored by respondent considering that he was
only a retainer/consultant. On
On the same date, Mario D. Cera, in his capacity as resident manager of petitioner, issued a Memorandum[5] advising respondent that within 30 days from receipt thereof, petitioner is terminating his retainer contract with the company since his services are no longer necessary.
On February 21, 2003, respondent filed a Complaint[6] for illegal dismissal, unfair labor practice, underpayment of wages, non-payment of 13th month pay, vacation pay, and sick leave pay with the National Labor Relations Commission (NLRC), Regional Arbitration Branch (RAB), Cordillera Administrative Region, against petitioner, Mario D. Cera, and Teofilo R. Asuncion, Jr. The case was docketed as NLRC Case No. RAB-CAR-02-0098-03.
Respondent alleged that:
x x x [S]ometime in January 1992, Rutillo
A. Torres, then the resident manager of respondent Atok Big Wedge Co., Inc., or
Atok for brevity, approached him and asked him if he can help the companys
problem involving the 700 million pesos crop damage claims of the residents
living at the minesite of Atok. He participated in a series of dialogues
conducted with the residents. Mr. Torres offered to pay him P3,000.00
per month plus representation expenses. It was also agreed upon by him and
Torres that his participation in resolving the problem was temporary and there
will be no employer-employee relationship between him and Atok. It was also
agreed upon that his compensation, allowances and other expenses will be paid
through disbursement vouchers.
On
A case was filed in court for the
lifting of the barricades and the court ordered the lifting of the barricade.
While Atok was prosecuting its case with the claimants, another case erupted
involving its partner, Benguet Corporation. After Atok parted ways with Benguet
Corporation, some properties acquired by the partnership and some receivables
by Benguet Corporation was the problem. He was again entangled with
documentation, conferences, meetings, planning, execution and clerical works.
After two years, the controversy was resolved and Atok received its share of the
properties of the partnership, which is about 5 million pesos worth of
equipment and condonation of Atoks accountabilities with Benguet Corporation
in the amount of P900,000.00.
In the meantime, crop damage
claimants lost interest in pursuing their claims against Atok and Atok was
relieved of the burden of paying 700 million pesos. In between attending the
problems of the crop damage issue, he was also assigned to do liaison works
with the SEC, Bureau of Mines, municipal government of Itogon, Benguet, the
Courts and other government offices.
After the crop damage claims and the
controversy were resolved, he was permanently assigned by Atok to take charge
of some liaison matters and public relations in
Because of his length of service, he
invited the attention of the top officers of the company that he is already
entitled to the benefits due an employee under the law, but management ignored
his requests. However, he continued to avail of his representation expenses and
reimbursement of company-related expenses. He also enjoyed the privilege of
securing interest free salary loans payable in one year through salary
deduction.
In the succeeding years of his
employment, he was designated as liaison officer, public relation officer and
legal assistant, and to assist in the ejection of illegal occupants in the
mining claims of Atok.
Since he was getting older, being
already 56 years old, he reiterated his request to the company to cause his
registration with the SSS. His request was again ignored and so he filed a complaint with the SSS.
After filing his complaint with the SSS, respondents terminated his services.[7]
On
Respondent then appealed the decision to the NLRC.
On
Aggrieved, respondent filed a petition for review under Rule 65 of the Rules of Court before the CA questioning the decision and resolution of the NLRC, which was later docketed as CA-G.R. SP No. 87846. In support of his petition, respondent raised the following issues:
a) Whether or not the Decision of the Honorable
Labor Arbiter and the subsequent Resolutions of the Honorable Public Respondent
affirming the same, are in harmony with the law and the facts of the case;
b) Whether or not the Honorable Labor Arbiter Committed a Grave Abuse of Discretion in Dismissing the Complaint of Petitioner and whether or not the Honorable Public Respondent Committed a Grave Abuse of Discretion when it affirmed the said Decision.[11]
On
WHEREFORE, the petition is GRANTED. The assailed Resolution of the
National Labor Relations Commission dismissing petitioner's complaint for
illegal dismissal is ANNULLED and SET ASIDE. Private respondent Atok Big Wedge Company
Incorporated is ORDERED to reinstate petitioner Jesus P. Gison to his
former or equivalent position without loss of seniority rights and to pay him
full backwages, inclusive of allowances and other benefits or their monetary
equivalent computed from the time these were withheld from him up to the time
of his actual and effective reinstatement.
This case is ordered REMANDED to the Labor Arbiter for the proper
computation of backwages, allowances and other benefits due to petitioner. Costs against private respondent Atok Big Wedge Company Incorporated.
SO ORDERED.[12]
In ruling in favor of the respondent, the CA opined, among other things, that both the Labor Arbiter and the NLRC may have overlooked Article 280 of the Labor Code,[13] or the provision which distinguishes between two kinds of employees, i.e., regular and casual employees. Applying the provision to the respondent's case, he is deemed a regular employee of the petitioner after the lapse of one year from his employment. Considering also that respondent had been performing services for the petitioner for eleven years, respondent is entitled to the rights and privileges of a regular employee.
The CA added that although there was an agreement between the parties that respondent's employment would only be temporary, it clearly appears that petitioner disregarded the same by repeatedly giving petitioner several tasks to perform. Moreover, although respondent may have waived his right to attain a regular status of employment when he agreed to perform these tasks on a temporary employment status, still, it was the law that recognized and considered him a regular employee after his first year of rendering service to petitioner. As such, the waiver was ineffective.
Hence, the petition assigning the following errors:
I.
WHETHER OR NOT
THE COURT OF APPEALS DECIDED QUESTIONS OF SUBSTANCE CONTRARY TO LAW AND
APPLICABLE RULINGS OF THIS HONORABLE COURT WHEN IT GAVE DUE COURSE TO THE
PETITION FOR CERTIORARI DESPITE THE FACT THAT THERE WAS NO SHOWING THAT THE
NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION.
II.
WHETHER OR NOT
THE COURT OF APPEALS DECIDED QUESTIONS OF SUBSTANCE CONTRARY TO THE LAW AND
APPLICABLE RULINGS OF THIS HONORABLE COURT WHEN IT BASED ITS FINDING THAT
RESPONDENT IS ENTITLED TO REGULAR EMPLOYMENT ON A PROVISION OF LAW THAT THIS
HONORABLE COURT HAS DECLARED TO BE INAPPLICABLE IN CASE THE EXISTENCE OF AN
EMPLOYER-EMPLOYEE RELATIONSHIP IS IN DISPUTE OR IS THE FACT IN ISSUE.
III.
WHETHER OR NOT
THE COURT OF APPEALS DECIDED QUESTIONS OF SUBSTANCE CONTRARY TO LAW AND
APPLICABLE RULINGS OF THIS HONORABLE COURT WHEN IT ERRONEOUSLY FOUND THAT
RESPONDENT IS A REGULAR EMPLOYEE OF THE COMPANY.
IV. WHETHER OR NOT THE COURT OF APPEALS DECIDED QUESTIONS OF SUBSTANCE CONTRARY TO LAW AND APPLICABLE RULINGS OF THIS HONORABLE COURT WHEN IT ERRONEOUSLY DIRECTED RESPONDENT'S REINSTATEMENT DESPITE THE FACT THAT THE NATURE OF THE SERVICES HE PROVIDED TO THE COMPANY WAS SENSITIVE AND CONFIDENTIAL.[14]
Petitioner argues that since the petition filed by the respondent before the CA was a petition for certiorari under Rule 65 of the Rules of Court, the CA should have limited the issue on whether or not there was grave abuse of discretion on the part of the NLRC in rendering the resolution affirming the decision of the Labor Arbiter.
Petitioner also posits that the CA erred in applying Article 280 of the Labor Code in determining whether there was an employer-employee relationship between the petitioner and the respondent. Petitioner contends that where the existence of an employer-employee relationship is in dispute, Article 280 of the Labor Code is inapplicable. The said article only set the distinction between a casual employee from a regular employee for purposes of determining the rights of an employee to be entitled to certain benefits.
Petitioner insists that respondent is not a regular employee and not entitled to reinstatement.
On his part, respondent maintains that he is an employee of the petitioner and that the CA did not err in ruling in his favor.
The petition is meritorious.
At the outset, respondent's recourse to the CA was the proper remedy to question the resolution of the NLRC. It bears stressing that there is no appeal from the decision or resolution of the NLRC. As this Court enunciated in the case of St. Martin Funeral Home v. NLRC,[15] the special civil action of certiorari under Rule 65 of the Rules of Civil Procedure, which is filed before the CA, is the proper vehicle for judicial review of decisions of the NLRC. The petition should be initially filed before the Court of Appeals in strict observance of the doctrine on hierarchy of courts as the appropriate forum for the relief desired.[16] This Court not being a trier of facts, the resolution of unclear or ambiguous factual findings should be left to the CA as it is procedurally equipped for that purpose. From the decision of the Court of Appeals, an ordinary appeal under Rule 45 of the Rules of Civil Procedure before the Supreme Court may be resorted to by the parties. Hence, respondent's resort to the CA was appropriate under the circumstances.
Anent the primordial issue of whether or not an employer-employee relationship exists between petitioner and respondent.
Well-entrenched is the doctrine that the existence of an employer-employee relationship is ultimately a question of fact and that the findings thereon by the Labor Arbiter and the NLRC shall be accorded not only respect but even finality when supported by substantial evidence.[17] Being a question of fact, the determination whether such a relationship exists between petitioner and respondent was well within the province of the Labor Arbiter and the NLRC. Being supported by substantial evidence, such determination should have been accorded great weight by the CA in resolving the issue.
To ascertain the existence of an employer-employee relationship jurisprudence has invariably adhered to the four-fold test, to wit: (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 employee's conduct, or the so-called "control test."[18] Of these four, the last one is the most important.[19] The so-called control test is commonly regarded as the most crucial and determinative indicator of the presence or absence of an employer-employee relationship. Under the control test, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end achieved, but also the manner and means to be used in reaching that end.[20]
Applying the aforementioned test, an employer-employee relationship is apparently absent in the case at bar. Among other things, respondent was not required to report everyday during regular office hours of petitioner. Respondent's monthly retainer fees were paid to him either at his residence or a local restaurant. More importantly, petitioner did not prescribe the manner in which respondent would accomplish any of the tasks in which his expertise as a liaison officer was needed; respondent was left alone and given the freedom to accomplish the tasks using his own means and method. Respondent was assigned tasks to perform, but petitioner did not control the manner and methods by which respondent performed these tasks. Verily, the absence of the element of control on the part of the petitioner engenders a conclusion that he is not an employee of the petitioner.
Moreover, the absence of the parties' retainership agreement notwithstanding, respondent clearly admitted that petitioner hired him in a limited capacity only and that there will be no employer-employee relationship between them. As averred in respondent's Position Paper:[21]
2. For the participation of complainant regarding this particular problem of Atok, Mr. Torres offered him a pay in the amount of Php3,000.00 per month plus representation expenses. It was also agreed by Mr. Torres and the complainant that his participation on this particular problem of Atok will be temporary since the problem was then contemplated to be limited in nature, hence, there will be no employer-employee relationship between him and Atok. Complainant agreed on this arrangement. It was also agreed that complainant's compensations, allowances, representation expenses and reimbursement of company- related expenses will be processed and paid through disbursement vouchers;[22]
Respondent was well aware of the agreement that he was hired merely as a liaison or consultant of the petitioner and he agreed to perform tasks for the petitioner on a temporary employment status only. However, respondent anchors his claim that he became a regular employee of the petitioner based on his contention that the temporary aspect of his job and its limited nature could not have lasted for eleven years unless some time during that period, he became a regular employee of the petitioner by continually performing services for the company.
Contrary to the conclusion of the CA, respondent is not an employee, much more a regular employee of petitioner. The appellate court's premise that regular employees are those who perform activities which are desirable and necessary for the business of the employer is not determinative in this case. In fact, any agreement may provide that one party shall render services for and in behalf of another, no matter how necessary for the latter's business, even without being hired as an employee.[23] Hence, respondent's length of service and petitioner's repeated act of assigning respondent some tasks to be performed did not result to respondent's entitlement to the rights and privileges of a regular employee.
Furthermore, despite the fact that petitioner made use of the services of respondent for eleven years, he still cannot be considered as a regular employee of petitioner. Article 280 of the Labor Code, in which the lower court used to buttress its findings that respondent became a regular employee of the petitioner, is not applicable in the case at bar. Indeed, the Court has ruled that said provision is not the yardstick for determining the existence of an employment relationship because it merely distinguishes between two kinds of employees, i.e., regular employees and casual employees, for purposes of determining the right of an employee to certain benefits, to join or form a union, or to security of tenure; it does not apply where the existence of an employment relationship is in dispute.[24] It is, therefore, erroneous on the part of the Court of Appeals to rely on Article 280 in determining whether an employer-employee relationship exists between respondent and the petitioner
Considering that there is no employer-employee relationship between the parties, the termination of respondent's services by the petitioner after due notice did not constitute illegal dismissal warranting his reinstatement and the payment of full backwages, allowances and other benefits.
WHEREFORE, premises considered, the
petition is GRANTED. The Decision
and the Resolution of the Court of Appeals in CA-G.R. SP No. 87846, are REVERSED and SET ASIDE. The Resolutions dated
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
PRESBITERO J.
VELASCO, JR. ARTURO D.
BRION
Associate Justice Associate Justice
Chairperson
MARIA LOURDES P. A. SERENO
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 Courts Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Third Division, Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons 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 Courts Division.
RENATO
C. CORONA
* Designated as an additional member in lieu of Associate Justice Roberto A. Abad, per Special Order No. 1059 dated August 1, 2011.
** Designated as an additional member in lieu of Associate Justice Jose Catral Mendoza, per Special Order No. 1056 dated July 27, 2011.
*** Designated as an additional member, per Special Order No. 1056 dated July 27, 2011.
[1] Penned by Associate Justice
Magdangal M. De
[2]
[3] Rollo, pp. 37-43.
[4] CA rollo, p. 19.
[5]
[6] Rollo, pp. 46-47.
[7] CA rollo, pp. 101-102.
[8]
[9]
[10] Rollo, pp. 162-163.
[11]
[12]
[13] 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 the engagement of the employee or where the
work or service to be performed is seasonal in nature and the 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.
[14] Rollo, p. 292.
[15] 356 Phil. 811 (1998).
[16]
[17] Abante, Jr. v. Lamadrid Bearing & Parts Corp., G.R. No. 159890, May 28, 2004, 430 SCRA 368, 378.
[18] Philippine Global Communication, Inc. v. De Vera, G.R. No. 157214, June 7, 2005, 459 SCRA 260, 268.
[19] Ushio Marketing v. NLRC, G.R. No. 124551, 28 August 1998, 294 SCRA 673; Insular Life Assurance Co., Ltd. v. NLRC, G.R. No. 119930, March 12, 1998, 287 SCRA 476.
[20] Abante, Jr. v. Lamadrid Bearing & Parts Corp., supra note 17, at 379.
[21] Rollo, pp. 48-70. (Italics supplied.)
[22]
[23] Philippine Global Communications, Inc. v. De Vera, supra note 18, at 274.
[24] Purefoods Corporation (now San Miguel Purefoods Company, Inc.) v. National Labor Relations Commission, G.R. No. 172241, November 20, 2008, 571 SCRA 406, 412; Philippine Global Communications, Inc. v. De Vera, supra note 18, at 274.