Jo vs NLRC [G.R. No. 121605.

February 2, 2000]

Private respondent Peter Mejila worked as barber on a piece rate basis at Dinas Barber Shop. In
1970, the owner, Dina Tan, sold the barbershop to petitioners Paz Martin Jo and Cesar Jo. All the
employees, including private respondent, were absorbed by the new owners.
The owners and the barbers shared in the earnings of the barber shop. The barbers got two-thirds
(2/3) of the fee paid for every haircut or shaving job done, while one-third (1/3) went to the owners of
the shop.
Petitioners designated private respondent as caretaker of the shop because the former caretaker
became physically unfit. Private respondents duties as caretaker, in addition to his being a barber, were:
(1) to report to the owners of the barbershop whenever the airconditioning units malfunctioned and/or
whenever water or electric power supply was interrupted; (2) to call the laundry woman to wash dirty
linen; (3) to recommend applicants for interview and hiring; (4) to attend to other needs of the shop. For
this additional job, he was given an honorarium equivalent to one-third (1/3) of the net income of the
shop.
Mejila, sued the spouses Jo for illegal dismissal. The spouses contended that there was no employer-
employee relationship because they were partners in trade.

Whether or not there exists an employer-employee relationship between petitioners and private
respondent.

In determining the existence of an employer-employee relationship, the following elements are
considered: (1) the selection and engagement of the workers; (2) power of dismissal; (3) the payment of
wages by whatever means; and (4) the power to control the workers conduct, with the latter assuming
primacy in the overall consideration. The power of control refers to the existence of the power and not
necessarily to the actual exercise thereof. It is not essential for the employer to actually supervise the
performance of duties of the employee; it is enough that the employer has the right to wield that power.
Initially, petitioners, as new owners of the barbershop, hired private respondent as barber by
absorbing the latter in their employ. Initially, petitioners, as new owners of the barbershop, hired private
respondent as barber by absorbing the latter in their employ. Petitioners had the power to dismiss
private respondent being the ones who engaged the services of the latter. In fact, private respondent sued
petitioners for illegal dismissal, albeit contested by the latter. As a caretaker, private respondent was
paid by petitioners wages in the form of honorarium, originally, at the rate of one-third (1/3) of the
shops net income but subsequently pegged at a fixed amount per month. As a barber, private respondent
earned two-thirds (2/3) of the fee paid per haircut or shaving job done. Furthermore, the following facts
indubitably reveal that petitioners controlled private respondents work performance, in that: (1) private
respondent had to inform petitioners of the things needed in the shop; (2) he could only recommend the
hiring of barbers and masseuses, with petitioners having the final decision; (3) he had to be at the shop at
9:00 a.m. and could leave only at 9:00 p.m. because he was the one who opened and closed it, being the
one entrusted with the key.








PAGUIO TRANSPORT CORPORATION, petitioner, vs. NLRC and WILFREDO MELCHOR,
respondents. [G.R. No. 119500. August 28, 1998]

Complainant Wilfredo Melchor was hired by respondent company as a taxi driver under the
boundary system. Complainant allegedly met a vehicular accident. After he submitted the traffic
accident report to the office of respondents, he was allegedly advised to stop working and have a
rest. After several days, he allegedly reported for work only to be told that his service was no longer
needed. Hence, the complaint for illegal dismissal, among others.
Respondents for their part maintained that complainant was not illegally dismissed, there being
in the first place no employer-employee relationship between them.

Whether or not there exists an employer-employee relationship between petitioners and private
respondent.

In Martinez v. National Labor Relations Commission, this Court already ruled that the relationship
of taxi owners and taxi drivers is the same as that between jeepney owners and jeepney drivers under the
boundary system. In both cases, the employer-employee relationship was deemed to exist, viz.:
The relationship between jeepney owners/operators on one hand and jeepney drivers on the
other under the boundary system is that of employer-employee and not of lessor-lessee. x x x In the
lease of chattels[,] the lessor loses complete control over the chattel leased x x x. In the case of jeepney
owners/operators and jeepney drivers, the former exercise supervision and control over the latter. The
fact that the drivers do not receive fixed wages but get only the excess of that so-called boundary they
pay to the owner/operator is not sufficient to withdraw the relationship between them from that of
employer and employee. The doctrine is applicable in the present case.



GREPA Life vs. HONORATO JUDICO and NLRC G.R. No. 73887 December 21, 1989
Private respondent Judico entered into an agreement of agency with petitioner Grepalife to
become a debit agent attached to the industrial life agency in Cebu City. Petitioner defines a debit agent
as "an insurance agent selling/servicing industrial life plans and policy holders. Industrial life plans are
those whose premiums are payable either daily, weekly or monthly and which are collectible by the
debit agents at the home or any place designated by the policy holder." Such admission is in line with
the findings of public respondent that as such debit agent, private respondent Judico had definite work
assignments including but not limited to collection of premiums from policy holders and selling
insurance to prospective clients. Public respondent NLRC also found out that complainant was initially
paid P 200. 00 as allowance for thirteen (13) weeks regardless of production and later a certain
percentage denominated as sales reserve of his total collections but not lesser than P 200.00. Sometime
in September 1981, complainant was promoted to the position of Zone Supervisor and was given
additional (supervisor's) allowance fixed at P110.00 per week. Subsequently, complainant was
dismissed for poor work performance. Thus, the case for illegal dismissal.
Petitioner contends that Judico's compensation, in the form of commissions and bonuses, was
based on actual production
Whether or not there exists an employer-employee relationship between petitioners and private
respondent.

The record shows that petitioner Judico received a definite minimum amount per week as his
wage known as "sales reserve" wherein the failure to maintain the same would bring him back to a
beginner's employment with a fixed weekly wage of P 200.00 for thirteen weeks regardless of
production. He was assigned a definite place in the office to work on when he is not in the field; and in
addition to his canvassing work he was burdened with the job of collection. In both cases he was
required to make regular report to the company regarding these duties, and for which an anemic
performance would mean a dismissal.
The undisputed facts show that he was controlled by petitioner insurance company not only as to
the kind of work; the amount of results, the kind of performance but also the power of dismissal.
Undoubtedly, private respondent, by nature of his position and work, had been a regular employee of
petitioner and is therefore entitled to the protection of the law and could not just be terminated without
valid and justifiable cause.



Besa vs Trajano G.R. No. 72409 December 29, 1986

The main thrust of the instant petition is the question of employer-employee relationship
between petitioner BESAS and 17 of the members of the herein respondent Union who are designated as
shoeshiners.
Entitlement of the minimum requirements of the law particularly on wages and allowances
presupposes the existence of employer-employee relationship which is determined by the concurrence of
the following conditions:
1. right to hire 2. payment of wages 3. right to fire; and 4. control and supervision
The most important condition to be considered is the exercise of control and supervision over the
employees, per our conversation, the persons concerned under your query are the shoe shiners and based
on the decision rendered by Associate Judge Emiliano Tabigne of the defunct Court of Industrial
Relations, these shoe shiners are not employees of the company, but are partners instead. This is due to
the fact that the owner/manager does not exercise control and supervision over the shoe shiners. That the
shiners have their own customers from whom they charge the fee and divide the proceeds equally with
the owner, which make the owner categorized them as on purely commission basis. The attendant
circumstances clearly show that there is no employer-employee relationship existing, and such the
owner/manager is not by law, under obligation to extend to those on purely commission basis.






INSULAR LIFE ASSURANCE CO., LTD.
vs.
NLRC and MELECIO BASIAO, G.R. No. 84484 November 15, 1989

FACTS : Petitioner entered contract with Basiao for insurance policies and annuities in accordance with
the existing rules and regulations" of the Company; he would receive "compensation, in the form of
commissions ... as provided in the Schedule of Commissions" of the contract to "constitute a part of the
consideration of ... (said) agreement;" and the "rules in ... (the Company's) Rate Book and its Agent's
Manual, as well as all its circulars ... and those which may from time to time be promulgated by it.
Some four years later, in April 1972, the parties entered into another contract an Agency
Manager's Contract and to implement his end of it Basiao organized an agency or office to which he
gave the name M. Basiao and Associates, while concurrently fulfilling his commitments under the first
contract with the Company.
In May, 1979, the Company terminated the Agency Manager's Contract. After vainly seeking a
reconsideration, Basiao sued the Company in a civil action and this, he was later to claim, prompted the
latter to terminate also his engagement.

ISSUE:
Whether, as Basiao asserts, he had become the Company's employee by virtue of the contract
invoked by him.

HELD:
The contract stated that Basiao is free to exercise his own judgment as to the time, place and
means of soliciting insurance, thus, the insurance company does not exercise control over the former.
The Court, therefore, rules that under the contract invoked by him, Basiao was not an employee of the
petitioner, but a commission agent, an independent contractor.

WHEREFORE, the appealed Resolution of the National Labor Relations Commission is set aside, and
that complaint of private respondent Melecio T. Basiao is dismissed.



Ruga et. Al. vs. NLRC (G.R. No. L-72654-61 January 22, 1990)

Facts:

Records show that the petitioners were the fishermen-crew members of one of several fishing
vessels owned and operated by private respondent De Guzman Fishing Enterprises which is primarily
engaged in the fishing business with port and office at Camaligan, Camarines Sur.
For services rendered in the conduct of private respondent's regular business of "trawl" fishing,
petitioners were paid on percentage commission basis in cash.
On September 11, 1983 upon arrival at the fishing port, petitioners were told by Jorge de Guzman,
president of private respondent, to proceed to the police station at Camaligan, Camarines Sur, for
investigation on the report that they sold some of their fish-catch at mid sea to the prejudice of private
respondent. Petitioners denied the charge claiming that the same was a countermove to their having
formed a labor union and becoming members of Defender of Industrial Agricultural Labor Organizations
and General Workers Union.
During the investigation, no witnesses were presented to prove the charge against petitioners,
and no criminal charges were formally filed against them. Notwithstanding, private respondent refused
to allow petitioners to return to the fishing vessel to resume their work on the same day. Petitioners
individually filed their complaints for illegal dismissal.

Issue:
The issue to be resolved in the instant case is whether or not the fishermen-crew members of the
trawl fishing vessel 7/B Sandyman II are employees of its owner-operator, De Guzman Fishing
Enterprises, and if so, whether or not they were illegally dismissed from their employment.

Held:
Fishermen crew members who were recruited by one master fisherman locally known as
"maestro" in charge of recruiting others to complete the crew members are considered employees, not
industrial partners, of the boat-owners. Also, there existed an employer-employee relationship between
the boat-owner and the fishermen crew members not only because they worked for and in the interest of
the business of the boat-owner but also because they were subject to the control, supervision and
dismissal of the boat-owner.