G.R. No.

121605 February 2, 2000

PAZ MARTIN JO and CESAR JO, petitioners,

QUISUMBING, J.:

This petition for certiorari seeks to set aside the Decision1 of National Labor Relations Commission
(Fifth Division) promulgated on November 21, 1994, and its Resolution dated June 7, 1995, which
denied petitioners' motion for reconsideration.

Private respondent Peter Mejila worked as barber on a piece rate basis at Dina's 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 name of the
barbershop was changed to Windfield Barber Shop.

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.

In 1977, petitioners designated private respondent as caretaker of the shop because the former
caretaker became physically unfit. Private respondent's 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.1âwphi1.nêt

When the building occupied by the shop was demolished in 1986, the barbershop closed. But soon a
place nearby was rented by petitioners and the barbershop resumed operations as Cesar's Palace
Barbershop and Massage Clinic. In this new location, private respondent continued to be a barber
and caretaker, but with a fixed monthly honorarium as caretaker, to wit: from February 1986 to 1990
— P700; from February 1990 to March 1991 — P800; and from July 1992 P1,300.

In November 1992, private respondent had an altercation with his co-barber, Jorge Tinoy. The
bickerings, characterized by constant exchange of personal insults during working hours, became
serious so that private respondent reported the matter to Atty. Allan Macaraya of the labor
department. The labor official immediately summoned private respondent and petitioners to a
conference. Upon investigation, it was found out that the dispute was not between private
respondent and petitioners; rather, it was between the former and his fellow barber. Accordingly,
Atty. Macaraya directed petitioners' counsel, Atty. Prudencio Abragan, to thresh out the problem.

During the mediation meeting held at Atty. Abragan's office a new twist was added. Despite the
assurance that he was not being driven out as caretaker-barber, private respondent demanded
payment for several thousand pesos as his separation pay and other monetary benefits. In order to
give the parties enough time to cool off, Atty. Abragan set another conference but private respondent
did not appear in such meeting anymore.

Meanwhile, private respondent continued reporting for work at the barbershop. But, on January 2,
1993, he turned over the duplicate keys of the shop to the cashier and took away all his belongings
therefrom. On January 8, 1993, he began working as a regular barber at the newly opened
Goldilocks Barbershop also in Iligan City.

On January 12, 1993, private respondent filed a complaint 2 for illegal dismissal with prayer for
payment of separation pay, other monetary benefits, attorney's fees and damages. Significantly, the
complaint did not seek reinstatement as a positive relief.

In a Decision dated June 15, 1993, the Labor Arbiter found that private respondent was an employee
of petitioners, and that private respondent was not dismissed but had left his job voluntarily because
of his misunderstanding with his co-worker.3 The Labor Arbiter dismissed the complaint, but ordered
petitioners to pay private respondent his 13th month pay and attorney's fees.

Both parties appealed to the NLRC. In a Decision dated November 21, 1994, it set aside the labor
arbiter's judgment. The NLRC sustained the labor arbiter's finding as to the existence of employer-
employee relationship between petitioners and private respondent, but it ruled that private
respondent was illegally dismissed. Hence, the petitioners were ordered to reinstate private
respondent and pay the latter's backwages, 13th month pay, separation pay and attorney's fees,
thus:

For failure of respondents to observe due process before dismissing the complainant, We
rule and hold that he was illegally terminated. Consequently, he should be reinstated and
paid his backwages starting from January 1, 1993 up , the time of his reinstatement and
payment of separation pay, should reinstatement not be feasible on account of a strained
employer-employee relationship.

As complainant's income was mixed, (commission and caretaker), he becomes entitled to

With respect to separation pay, even workers paid on commission are given separation pay
as they are considered employees of the company. Complainant should be adjudged entitled
to separation pay reckoned from 1970 up to the time he was dismissed on December 31,
1992 at one-half month pay of his earnings as a barbers; and as a caretaker the same
should be reckoned from 1977 up to December 31, 1992.

As complainant has been assisted by counsel not only in the preparation of the complaint,
position paper but in hearings before the Labor Arbiter a quo attorney's fees equivalent to
10% of the money awards should likewise be paid to complainant.

WHEREFORE, the decision appealed from is Vacated and Set Aside and a new one entered
in accordance with the above-findings and awards.

SO ORDERED.4

Its motion for reconsideration having been denied in a Resolution dated June 7, 1995, petitioners
filed the instant petition.

The issues for resolution are as follows:

1. Whether or not there exists an employee-employee relationship between petitioners and

Petitioners contend that public respondent gravely erred in declaring that private respondent was
their employee. They claim that private respondent was their "partner in trade" whose compensation
was based on a sharing arrangement per haircut or shaving job done. They argue that private
respondent's task as caretaker could be considered an employment because the chores are very
minimal.

At the outset, we reiterate 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 ample evidence.5

In determining the existence of an employer-employee relationship, the following elements are

Absent a clear showing that petitioners and private respondent had intended to pursue a relationship
of industrial partnership, we entertain no doubt that private respondent was employed by petitioners
as caretaker-barber. Initially, petitioners, as new owners of the barbershop, hired private respondent
as barber by absorbing the latter in their employ. Undoubtedly, the services performed by private
respondent as barber is related to, and in the pursuit of the principal business activity of petitioners.
Later on, petitioners tapped private respondent to serve concurrently as caretaker of the shop.
Certainly, 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 shop's 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 respondent's 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.7 These duties were complied with by the private respondent
upon instructions of petitioners. Moreover, such task was far from being negligible as claimed by
petitioners. On the contrary, it was crucial to the business operation of petitioners as shown in the
preceding discussion. Hence, there was enough basis to declare private respondent an employee of
petitioners. Accordingly, there is no cogent reason to disturb the findings of the labor arbiter and
NLRC on the existence of employer-employee relationship between herein private parties.

With regard to the second issue, jurisprudence has laid out the rules and valid ground for termination
of employment. To constitute abandonment, there must be concurrence of the intention to abandon
and some overt acts from which it may be inferred that the employee concerned has no more
interest in working.8 In other words, there must be a clear, deliberate and unjustified refusal to
resume employment and a clear intention to sever the employer-employee relationship on the part of
the employee.9
In the case at bar, the labor arbiter was convinced that private respondent was not dismissed but left
his work on his own volition because he could no longer bear the incessant squabbles with his co-
worker. Nevertheless, public respondent did not give credence to petitioners' claim that private
respondent abandoned his job. On this score, public respondent gravely erred as hereunder
discussed.

At the outset, we must stress that where the findings of the NLRC contradict those of the labor
arbiter, the Court, in the exercise of its equity jurisdiction, may look into the records of the case and
reexamine the questioned findings.10

In this case, the following circumstances clearly manifest private respondent's intention to sever his
ties with petitioners. First, private respondent even bragged to his co-workers his plan to quit his job
at Cesar's Palace Barbershop and Massage Clinic as borne out by the affidavit executed by his
former co-workers.11 Second, he surrendered the shop's keys and took away all his things from the
shop. Third, he did not report anymore to the shop without giving any valid and justifiable reason for
his absence. Fourth, he immediately sought a regular employment in another barbershop, despite
previous assurance that he could remain in petitioners' employ. Fifth, he filed a complaint for illegal
dismissal without praying for reinstatement.

Moreover, public respondent's assertion that the institution of the complaint for illegal dismissal
manifests private respondent's lack of intention to abandon his job12 is untenable. The rule that
abandonment of work is inconsistent with the filing of a complainant for illegal dismissal is not
applicable in this case. Such rule applies where the complainant seeks reinstatement as a relief.
Corollarily, it has no application where the complainant does not pray for reinstatement and just asks
for separation pay instead13 as in the present case. It goes without saying that the prayer for
separation pay, being the alternative remedy to reinstatement, 14 contradicts private respondent's
stance. That he was illegally dismissed is belied by his own pleadings as well as contemporaneous
conduct.

We are, therefore, constrained to agree with the findings of the Labor Arbiter that private respondent
left his job voluntarily for reasons not attributable to petitioners. It was error and grave abuse of
discretion for the NLRC to hold petitioners liable for illegal dismissal of private respondent.

WHEREFORE, the petition is GRANTED. The assailed Decision and Resolution of public
respondent NLRC are reversed and set aside. The decision of the Labor Arbiter dated June 15,
1993, is hereby reinstated. No costs.

SO ORDERED. 1âwphi1.nêt

Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.