HELD:

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 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. Accordingly, the petitioner needs to show by substantial evidence that he was indeed an employee of the company against which he claims illegal dismissal.

Expectedly, opposing parties would stand poles apart and proffer allegations as different as chalk and cheese. It is, therefore, incumbent upon the Court to determine whether the party on whom the burden to prove lies was able to hurdle the same. No particular form of evidence is required to prove the existence of such employer-employee relationship. Any competent and relevant evidence to prove the relationship may be admitted. Hence, while no particular form of evidence is required, a finding that such relationship exists must still rest on some substantial evidence. Moreover, the substantiality of the evidence depends on its quantitative as well as its qualitative aspects. Although substantial evidence is not a function of quantity but rather of quality, the x x x circumstances of the instant case demand that something more should have been proffered. Had there been other proofs of employment, such as x x x inclusion in petitioners payroll, or a clear exercise of control, the Court would have affirmed the finding of employer-employee relationship.

In sum, the rule of thumb remains: the onus probandi falls on petitioner to establish or substantiate such claim by the requisite quantum of evidence. Whoever claims entitlement to the benefits provided by law should establish his or her right thereto x x x. 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.

Coca Cola Bottlers (Phils.) vs. Climaco [GR. No. 146881, Feb. 5, 2007]

Coca-Cola hired Dr. Climaco by virtue of a Retainer Agreement with a compensation fixed at P3,000.00 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 employee Held:

The circumstances of this case show that no employer-employee relationship exists between the parties 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. *** Facts: Respondent Dr. Dean N. Climaco is a medical doctor who was hired by petitioner Coca-Cola Bottlers Phils., Inc (Coca-Cola), by virtue of a Retainer Agreement. The Retainer Agreement, which began on January 1, 1988, was renewed annually. The last one expired December 31, 1993. Despite the non-renewal of the Retainer Agreement, respondent continued to perform his functions as company doctor to Coca-Cola until he received a letter from petitioner company concluding their retainership agreement. It is noted that as early as September 1992, petitioner was already making inquiries regarding his status with petitioner company. Petitioner company, however, did not take any action. Respondent inquired from the management of petitioner company whether it was agreeable to recognize him as a regular employee. The management refused to do so.

Respondent filed a Complaint before the NLRC seeking recognition as a regular employee of petitioner company and prayed for the payment of all benefits of a regular employee. While the complaint was pending before the Labor Arbiter, respondent received a letter from petitioner company concluding their retainership agreement effective 30 days from receipt thereof. This prompted respondent to file a complaint for illegal dismissal against petitioner company. Respondent contend . The Labor Arbiter and NLRC declared that there is no employer-employee relationship existed between the parties. However, the Court of Appeals declared that respondent should be classified as a regular employee having rendered 6 years of service as plant physician by virtue of several renewed retainer agreements. Issue: WON there exist an employer-employee relationship between the parties Ruling: The court, in determining the existence of an employer-employee relationship, has invariably adhered to the four-fold test: (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. The Court agrees with the finding of the Labor Arbiter and the NLRC that the circumstances of this case show that no employer-employee relationship exist between the parties, they correctly found that petitioner company lacked the power of control over the performance by respondent of his duties. The Labor Arbiter reasoned that the Comprehensive Medical Plan, which contains the respondents objectives, duties and obligations, does not tell respondent how to conduct his physical examination, how to immunize, or how to diagnose and treat his patients, employees of company, in each case. In effect, the Labor Arbiter held that petitioner company, through the Comprehensive Medical Plan, provided guidelines merely to ensure that the end result was achieved, but did not control the means and methods by which respondent performed his assigned tasks. The NLRC affirmed the findings of the Labor Arbiter and stated that it is precisely because the company lacks the power of control that the contract provides that 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. In addition, the Court finds that 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 Court agrees that 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 stated that no employe-employee relationship existed between the parties. Considering that there is no employer-employee relationship between the parties, the termination of the Retainership Agreement , which

is accordance with the provisions of the Agreement, does not constitute illegal dismissal of respondent.

***

Facts:

Held:

Dumpit-Murillovs.CA

[GR.No.164652.June8,2007] Murillowashiredunderatalentcontract,asanewscasterandco-anchorforABCsearlyeveningnewsprogram.Thecontractwasforaperiodofthreemonths.Itwasrenewedfifteentimeswithinfouryears.Upontheexpirationofherlasttalentcontract,sheinformedABCofherdesiretorenew.Nothavingreceivedareply,sheconsideredthecompanysinactionasconstructivedismissalofherservices. Anemployer-employeerelationshipwascreatedwhentheprivaterespondentsstartedtomerelyrenewthecontractsrepeatedlyfifteentimesorforfourconsecutiveyears.Petitionerwasaregularemployee.Thepracticeofhavingfixed-termcontractsintheindustrydoesnotautomaticallymakealltalentcontractsvalidandcompliantwithlaborlaw. Murillowasnotafixedtermemployee. Inthecaseatbar,itdoesnotappearthattheemployerandemployeedealtwitheachotheronequalterms.Beingoneofthenumerousnewscasters/broadcastersofABCanddesiringtokeepherjobasabroadcastingpractitioner,petitionerwasleftwithnochoicebuttoaffixhersignatureofconformityoneachrenewalofhercontractasalreadypreparedbyprivaterespondents; otherwise, private respondents would have simply refused to renew hercontract.Patently, thepetitioneroccupiedapositionofweaknessvis-a-vis theemployer.Moreover, private respondents practice of repeatedly extending petitioners 3-monthcontractforfouryearsisacircumventionoftheacquisitionofregularstatus.Hence,therewasnovalidfixed-termemploymentbetweenpetitionerandprivaterespondents. Sonzacaseisnotapplicable[i.e.absenceofemployer-employeerelationshipbetweenatalentandthemediaentitywhichengagedthetalentsservicesonapertalentcontractbasis] InSonza,thetelevisionstationdidnotinstructSonzahowtoperformhisjob.HowSonzadeliveredhislines,appearedontelevision,andsoundedonradiowereoutsidethetelevisionstationscontrol.Inthecaseatbar,ABChadcontrolovertheperformanceofpetitionerswork.Noteworthytoo,isthecomparativelylowP28,000monthlypayofpetitionervistheP300,000amonthsalaryofSonza,thatallthemorebolsterstheconclusionthatpetitionerwasnotinthesamesituationasSonza. ThedutiesofpetitionerasenumeratedinheremploymentcontractindicatethatABChadcontrolovertheworkofpetitioner.Asidefromcontrol,ABCalsodictatedtheworkassignmentsandpaymentofpetitionerswages.ABCalsohadpowertodismissher.Murrilowasaregularemployee

Theassertionthatatalentcontractexistsdoesnotnecessarilypreventaregularemploymentstatus.Petitionersworkwasnecessaryordesirable in theusualbusinessor tradeof theemployerwhichincludes,asapre-conditionforitsenfranchisement,itsparticipationinthegovernments news and public information dissemination. In addition, her work wascontinuousforaperiodoffouryears.Thisrepeatedengagementundercontractofhireisindicativeof thenecessityanddesirabilityof thepetitionerswork inprivaterespondentACSsbusiness.

Far East Agricultural Supply, Inc. vs Jimmy Lebatique

515 SCRA 491 Labor Law Labor Standards Abandonment Service Incentive Leave Field Personnel

In March 1996, Lebatique was hired as a driver by FAR EAST AGRICULTURAL SUPPLY, INC. with a daily wage of P223.50. His job as a driver includes the delivery of animal feeds to the clients of the company. He must report either in the morning or in the afternoon to make the deliveries. On January 24, 2000, Lebatique was suspended by Manuel Uy (brother of FEASIs General Manager Alexander Uy) for allegedly using the company vehicle illegally. On the same day, Lebatique filed a complaint for nonpayment of overtime

pay against Alexander Uy. Uy summoned Lebatique and asked why he was claiming overtime pay. Lebatique said since he started working with the company he has never been paid OT pay. Uy consulted with his brother. On January 29, 2000, Uy told Lebatique to look for another job. Lebatique then filed an Illegal Dismissal case against the company. The Labor Arbiter ruled in favor of Lebatique. Uy was ordered to reinstate Lebatique and at the same time to pay Lebatique his 13th month pay, back wages (time when case was pending), service incentive leave pay and OT pay all amounting to P196,659.72. Uy argued that Lebatique was not dismissed and that he was merely suspended; that he abandoned his job; and that Lebatique was a field personnel not entitled to overtime pay and service incentive leave. ISSUE: Whether or not Lebatique is a field personnel. HELD: No. Lebatique is a regular employee. Uy illegally dismissed Lebatique when he told him to look for another job. Judging at the sequence of event, Lebatique earned the ire of Uy when he filed a complaint for nonpayment of OT pay on the day Lebatique was suspended by Manuel Uy. Such is not a valid reason for dismissing Lebatique. Uy cannot therefore claim that he merely suspended Lebatique. Further, Lebatique did not abandon his job. His filing of this case is proof enough that he had no intention to abandon his job. To constitute abandonment as a just cause for dismissal, there must be: (a) absence without justifiable reason; and (b) a clear intention, as manifested by some overt act, to sever the

employer-employee relationship. None of the above was proven by Uy. Also, Lebatique is not a field personnel as defined above for the following reasons: (1) company drivers, including Lebatique, are directed to deliver the goods at a specified time and place; (2) they are not given the discretion to solicit, select and contact prospective clients; and (3) Far East issued a directive that company drivers should stay at the clients premises during truck-ban hours which is from 5:00 to 9:00 a.m. and 5:00 to 9:00 p.m. As a regular employee, Lebatique is entitled to service incentive leave and OT pay. The Supreme Court affirmed the Labor Arbiters decision but remanded the case for properly computing Lebatiques OT pay taking in to consideration the companys time keeping records. Field Personnel Defined Field personnel are those who regularly perform their duties away from the principal place of business of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty.

In termination cases, the burden of proof rests on the employer to show that the dismissal is for a just cause. Thus, employers who hire project employees are mandated to state and, once its veracity is challenged, to prove the actual basis for the latter's dismissal. 16 Unfortunately for OMSI, it failed to discharge the burden. All that we have is OMSI's self-serving assertion that the respondents were hired as project employees. Having been illegally dismissed, the NLRC cannot be considered to have acted whimsically in granting respondents separation pay in lieu of their reinstatement. Accordingly, the Court of Appeals committed no reversible error nor grave abuse of discretion in denying OMSI's petition for certiorari.

An examination of Songco reveals that it may be applied to the present case. In that case, Jose Songco

was a salesman of F.E. Zuellig (M), Inc. which terminated the services of Songco on the ground of

retrenchment due to financial losses. The issue raised to the Court, however, was whether commissions

are considered as part of wages in order to determine separation pay. Thus, the fact that Songco was

dismissed due to retrenchment does not hamper the application thereof to the instant case. What is pivotal

is that we ruled in Songco that commissions are part of wages for the determination of separation pay.

Article 279 of the Labor Code on security of tenure pertinently provides that:

In cases of regular employment the employer shall not terminate the services of an

employee except for a just cause or when authorized by this Title. An employee who is

unjustly dismissed from work shall be entitled to reinstatement without loss of seniority

rights and other privileges and to his full backwages, inclusive of allowances, and to his

other benefits or their monetary equivalent computed from the time his compensation

was withheld from him up to the time of his actual reinstatement.

In Triad Security & Allied Services, Inc. v. Ortega, Jr. (Triad), we thus stated that an illegally dismissed

employee shall be entitled to backwages and separation pay, if reinstatement is no longer viable:

As the law now stands, an illegally dismissed employee is entitled to two reliefs, namely:

backwages and reinstatement. These are separate and distinct from each other.

However, separation pay is granted where reinstatement is no longer feasible because

of strained relations between the employee and the employer. In effect, an illegally

dismissed employee is entitled to either reinstatement, if viable, or separation pay if

reinstatement is no longer viable and backwages. 33

Taking into consideration the cases of Songco and Triad, we find correct the computation of the NLRC that

the monthly gross wage of Tongko in 2001 was PhP518,144.76. For having been illegally

dismissed, Tongko is entitled to reinstatement with full backwages under Art. 279 of the Labor Code. Due

to the strained relationship between Manulife and Tongko, reinstatement, however, is no longer advisable.

Thus, Tongko will be entitled to backwages from January 2, 2002 (date of dismissal) up to the finality of this

decision. Moreover, Manulife will pay Tongko separation pay of one (1) month salary for every year of

service that is from 1977 to 2001 amounting to PhP12,435,474.24, considering that reinstatement is not

feasible. Tongko shall also be entitled to an award of attorney's fees in the amount of ten percent (10%) of

the aggregate amount of the above awards. EAaHTI

WHEREFORE, the petition is hereby GRANTED. The assailed March 29, 2005 Decision of the CA in CA-

G.R. SP No. 88253 is REVERSED and SET ASIDE. The Decision dated September 27, 2004 of the NLRC

is REINSTATED with the following modifications:

Manulife shall pay Tongko the following:

(1) Full backwages, inclusive of allowances and other benefits or their monetary equivalent from January

2, 2002 up to the finality of this Decision;

(2) Separation pay of one (1) month salary for every year of service from 1977 up to 2001 amounting to

PhP12,435,474.24;

(3) Nominal damages of PhP30,000 as indemnity for violation of the due process requirements; and

(4) Attorney's fees equivalent to ten percent (10%) of the aforementioned backwages and separation pay.

Finally, we do not agree with the petitioners' assertion that the MOA is not enforceable as it is contrary to

law. The MOA is enforceable and binding against the petitioners. Where it is shown that the person making

the waiver did so voluntarily, with full understanding of what he was doing, and the consideration for the

quitclaim is credible and reasonable, the transaction must be recognized as a valid and binding

undertaking. 27

D.O. No. 21 sanctions the waiver of overtime pay in consideration of the benefits that the employees will

derive from the adoption of a compressed workweek scheme, thus:

The compressed workweek scheme was originally conceived for establishments wishing

to save on energy costs, promote greater work efficiency and lower the rate of employee

absenteeism, among others. Workers favor the scheme considering that it would mean

savings on the increasing cost of transportation fares for at least one (1) day a week;

savings on meal and snack expenses; longer weekends, or an additional 52 off-days a

year, that can be devoted to rest, leisure, family responsibilities, studies and other

personal matters, and that it will spare them for at least another day in a week from

certain inconveniences that are the normal incidents of employment, such as commuting

to and from the workplace, travel time spent, exposure to dust and motor vehicle fumes,

dressing up for work, etc. Thus, under this scheme, the generally observed workweek of

six (6) days is shortened to five (5) days but prolonging the working hours from Monday

to Friday without the employer being obliged for pay overtime premium compensation for

work performed in excess of eight (8) hours on weekdays, in exchange for the benefits

abovecited that will accrue to the employees.

Moreover, the adoption of a compressed workweek scheme in the company will help temper any

inconvenience that will be caused the petitioners by their transfer to a farther workplace.

Notably, the MOA complied with the following conditions set by the DOLE, under D.O. No. 21, to protect

the interest of the employees in the implementation of a compressed workweek scheme: cCSDaI

1. The employees voluntarily agree to work more than eight (8) hours a day the total in

a week of which shall not exceed their normal weekly hours of work prior to

adoption of the compressed workweek arrangement;

2. There will not be any diminution whatsoever in the weekly or monthly take-home pay

and fringe benefits of the employees;

3. If an employee is permitted or required to work in excess of his normal weekly hours

of work prior to the adoption of the compressed workweek scheme, all such

excess hours shall be considered overtime work and shall be compensated in

accordance with the provisions of the Labor Code or applicable Collective

Bargaining Agreement (CBA);

4. Appropriate waivers with respect to overtime premium pay for work performed in

excess of eight (8) hours a day may be devised by the parties to the agreement.

5. The effectivity and implementation of the new working time arrangement shall be by

agreement of the parties.

PESALA v. NLRC, 28 cited by the petitioners, is not applicable to the present case. In that case, an

employment contract provided that the workday consists of 12 hours and the employee will be paid a fixed

monthly salary rate that was above the legal minimum wage. However, unlike the present MOA which

specifically states that the employee waives his right to claim overtime pay for work rendered beyond eight

hours, the employment contract in that case was silent on whether overtime pay was included in the

payment of the fixed monthly salary. This necessitated the interpretation by the Court as to whether the

fixed monthly rate provided under the employment contract included overtime pay. The Court noted that if

the employee is paid only the minimum wage but with overtime pay, the amount is still greater than the

fixed monthly rate as provided in the employment contract. It, therefore, held that overtime pay was not

included in the agreed fixed monthly rate.

Considering that the MOA clearly states that the employee waives the payment of overtime pay in exchange

of a five-day workweek, there is no room for interpretation and its terms should be implemented as they are

written.