PAZ MARTIN JO and CESAR JO, petitioners, vs.

NATIONAL LABOR RELATIONS

COMMISSION and PETER MEJILA, respondents.
D E C I S I O N
QUISUMBING, J.:
This petition for certiorari seeks to set aside the Decision
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[1] of National Labor Relations Commission (Fifth
Division) proml!ated on November "1# 1$$%# and its Resoltion dated &ne '# 1$$(# )hich denied petitioners*
motion for reconsideration+
,rivate respondent ,eter -e.ila )orked as barber on a piece rate basis at Dina*s /arber 0hop+ 1n 1$'2# the
o)ner# Dina Tan# sold the barbershop to petitioners ,a3 -artin &o and Cesar &o+ 4ll the emplo5ees# incldin!
private respondent# )ere absorbed b5 the ne) o)ners+ The name of the barbershop )as chan!ed to 6indfield
/arber 0hop+
The o)ners and the barbers shared in the earnin!s of the barber shop+ The barbers !ot t)o7thirds ("89) of the fee
paid for ever5 hairct or shavin! .ob done# )hile one7third (189) )ent to the o)ners of the shop+
1n 1$''# petitioners desi!nated private respondent as caretaker of the shop becase the former caretaker became
ph5sicall5 nfit+ ,rivate respondent*s dties as caretaker# in addition to his bein! a barber# )ere: (1) to report to
the o)ners of the barbershop )henever the airconditionin! nits malfnctioned and8or )henever )ater or
electric po)er sppl5 )as interrpted; (") to call the landr5 )oman to )ash dirt5 linen; (9) to recommend
applicants for intervie) and hirin!; (%) to attend to other needs of the shop+ For this additional .ob# he )as !iven
an honorarim e<ivalent to one7third (189) of the net income of the shop+
6hen the bildin! occpied b5 the shop )as demolished in 1$=># the barbershop closed+ /t soon a place
nearb5 )as rented b5 petitioners and the barbershop resmed operations as Cesar*s ,alace /arbershop and
-assa!e Clinic+ 1n this ne) location# private respondent contined to be a barber and caretaker# bt )ith a fi?ed
monthl5 honorarim as caretaker# to )it: from Febrar5 1$=> to 1$$2 7 ,'22; from Febrar5 1$$2 to -arch
1$$1 7 ,=22; and from &l5 1$$" ,1#922+
1n November 1$$"# private respondent had an altercation )ith his co7barber# &or!e Tino5+ The bickerin!s#
characteri3ed b5 constant e?chan!e of personal inslts drin! )orkin! hors# became serios so that private
respondent reported the matter to 4tt5+ 4llan -acara5a of the labor department+ The labor official immediatel5
smmoned private respondent and petitioners to a conference+ @pon investi!ation# it )as fond ot that the
dispte )as not bet)een private respondent and petitioners; rather# it )as bet)een the former and his fello)
barber+ 4ccordin!l5# 4tt5+ -acara5a directed petitioners* consel# 4tt5+ ,rdencio 4bra!an# to thresh ot the
problem+
Drin! the mediation meetin! held at 4tt5+ 4bra!an*s office a ne) t)ist )as added+ Despite the assrance that
he )as not bein! driven ot as caretaker7barber# private respondent demanded pa5ment for several thosand
pesos as his separation pa5 and other monetar5 benefits+ 1n order to !ive the parties eno!h time to cool off#
4tt5+ 4bra!an set another conference bt private respondent did not appear in sch meetin! an5more+
-ean)hile# private respondent contined reportin! for )ork at the barbershop+ /t# on &anar5 "# 1$$9# he
trned over the dplicate ke5s of the shop to the cashier and took a)a5 all his belon!in!s therefrom+ An &anar5
=# 1$$9# he be!an )orkin! as a re!lar barber at the ne)l5 opened Boldilocks /arbershop also in 1li!an Cit5+
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An &anar5 1"# 1$$9# private respondent filed a complaint
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["] for ille!al dismissal )ith pra5er for pa5ment of
separation pa5# other monetar5 benefits# attorne5*s fees and dama!es+ 0i!nificantl5# the complaint did not seek
reinstatement as a positive relief+
1n a Decision dated &ne 1(# 1$$9# the Labor 4rbiter fond that private respondent )as an emplo5ee of
petitioners# and that private respondent )as not dismissed bt had left his .ob volntaril5 becase of his
misnderstandin! )ith his co7)orker+
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[9] The Labor 4rbiter dismissed the complaint# bt ordered petitioners to
pa5 private respondent his 19th month pa5 and attorne5*s fees+
/oth parties appealed to the NLRC+ 1n a Decision dated November "1# 1$$%# it set aside the labor arbiter*s
.d!ment+ The NLRC sstained the labor arbiter*s findin! as to the e?istence of emplo5er7emplo5ee
relationship bet)een petitioners and private respondent# bt it rled that private respondent )as ille!all5
dismissed+ Cence# the petitioners )ere ordered to reinstate private respondent and pa5 the latter*s back)a!es#
19th month pa5# separation pa5 and attorne5*s fees# ths:
DFor failre of respondents to observe de process before dismissin! the complainant# 6e rle
and hold that he )as ille!all5 terminated+ Conse<entl5# he shold be reinstated and paid his
back)a!es startin! from &anar5 1# 1$$9 p to the time of his reinstatement and pa5ment of
separation pa5# shold reinstatement not be feasible on accont of a strained emplo5er7emplo5ee
relationship+
4s complainant*s income )as mi?ed# (commission and caretaker)# he becomes entitled to 19th
month pa5 onl5 in his capacit5 as caretaker at the last rate of pa5 !iven to him+
6ith respect to separation pa5# even )orkers paid on commission are !iven separation pa5 as
the5 are considered emplo5ees of the compan5+ Complainant shold be ad.d!ed entitled to
separation pa5 reckoned from 1$'2 p to the time he )as dismissed on December 91# 1$$" at
one7half month pa5 of his earnin! as a barber; and as a caretaker the same shold be reckoned
from 1$'' p to December 91# 1$$"+
4s complainant has been assisted b5 consel not onl5 in the preparation of the complaint#
position paper bt in hearin!s before the Labor 4rbiter a <o# attorne5*s fees e<ivalent to 12E
of the mone5 a)ards shold like)ise be paid to complainant+
6CFRFFARF# the decision appealed from is Gacated and 0et 4side and a ne) one entered in
accordance )ith the above7findin!s and a)ards+
0A ARDFRFD+D
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[%]
1ts motion for reconsideration havin! been denied in a Resoltion dated &ne '# 1$$(# petitioners filed the
instant petition+
The isses for resoltion are as follo)s:
1+ 6hether or not there e?ists an emplo5er7emplo5ee relationship bet)een petitioners and private
respondent+
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"+ 6hether or not private respondent )as dismissed from or had abandoned his emplo5ment+
,etitioners contend that pblic respondent !ravel5 erred in declarin! that private respondent )as their
emplo5ee+ The5 claim that private respondent )as their Dpartner in tradeD )hose compensation )as based on a
sharin! arran!ement per hairct or shavin! .ob done+ The5 ar!e that private respondent*s task as caretaker
cold be considered an emplo5ment becase the chores are ver5 minimal+
4t the otset# )e reiterate the doctrine that the e?istence of an emplo5er7emplo5ee relationship is ltimatel5 a
<estion of fact and that the findin!s thereon b5 the labor arbiter and the NLRC shall be accorded not onl5
respect bt even finalit5 )hen spported b5 ample evidence+
(
[(]
1n determinin! the e?istence of an emplo5er7emplo5ee relationship# the follo)in! elements are considered: (1)
the selection and en!a!ement of the )orkers; (") po)er of dismissal; (9) the pa5ment of )a!es b5 )hatever
means; and (%) the po)er to control the )orker*s condct# )ith the latter assmin! primac5 in the overall
consideration+ The po)er of control refers to the e?istence of the po)er and not necessaril5 to the actal
e?ercise thereof+ 1t is not essential for the emplo5er to actall5 spervise the performance of dties of the
emplo5ee; it is eno!h that the emplo5er has the ri!ht to )ield that po)er+
>
[>]
4bsent a clear sho)in! that petitioners and private respondent had intended to prse a relationship of
indstrial partnership# )e entertain no dobt that private respondent )as emplo5ed b5 petitioners as caretaker7
barber+ 1nitiall5# petitioners# as ne) o)ners of the barbershop# hired private respondent as barber b5 absorbin!
the latter in their emplo5+ @ndobtedl5# the services performed b5 private respondent as barber is related to# and
in the prsit of the principal bsiness activit5 of petitioners+ Later on# petitioners tapped private respondent to
serve concrrentl5 as caretaker of the shop+ Certainl5# petitioners had the po)er to dismiss private respondent
bein! the ones )ho en!a!ed the services of the latter+ 1n fact# private respondent sed petitioners for ille!al
dismissal# albeit contested b5 the latter+ 4s a caretaker# private respondent )as paid b5 petitioners )a!es in the
form of honorarim# ori!inall5# at the rate of one7third (189) of the shop*s net income bt sbse<entl5 pe!!ed
at a fi?ed amont per month+ 4s a barber# private respondent earned t)o7thirds ("89) of the fee paid per hairct
or shavin! .ob done+ Frthermore# the follo)in! facts indbitabl5 reveal that petitioners controlled private
respondent*s )ork performance# in that: (1) private respondent had to inform petitioners of the thin!s needed in
the shop; (") he cold onl5 recommend the hirin! of barbers and masseses# )ith petitioners havin! the final
decision; (9) he had to be at the shop at $:22 a+m+ and cold leave onl5 at $:22 p+m+ becase he )as the one )ho
opened and closed it# bein! the one entrsted )ith the ke5+
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['] These dties )ere complied )ith b5 private
respondent pon instrctions of petitioners+ -oreover# sch task )as far from bein! ne!li!ible as claimed b5
petitioners+ An the contrar5# it )as crcial to the bsiness operation of petitioners as sho)n in the precedin!
discssion+ Cence# there )as eno!h basis to declare private respondent an emplo5ee of petitioners+
4ccordin!l5# there is no co!ent reason to distrb the findin!s of the labor arbiter and NLRC on the e?istence of
emplo5er7emplo5ee relationship bet)een herein private parties+
6ith re!ard to the second isse# .risprdence has laid ot the rles re!ardin! abandonment as a .st and valid
!rond for termination of emplo5ment+ To constitte abandonment# there mst be concrrence of the intention
to abandon and some overt acts from )hich it ma5 be inferred that the emplo5ee concerned has no more interest
in )orkin!+
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[=] 1n other )ords# there mst be a clear# deliberate and n.stified refsal to resme emplo5ment
and a clear intention to sever the emplo5er7emplo5ee relationship on the part of the emplo5ee+
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1n the case at bar# the labor arbiter )as convinced that private respondent )as not dismissed bt left his )ork on
his o)n volition becase he cold no lon!er bear the incessant s<abbles )ith his co7)orker+ Nevertheless#
pblic respondent did not !ive credence to petitioners* claim that private respondent abandoned his .ob+ An this
score# pblic respondent !ravel5 erred as herender discssed+
4t the otset# )e mst stress that )here the findin!s of the NLRC contradict those of the labor arbiter# the
Cort# in the e?ercise of its e<it5 .risdiction# ma5 look into the records of the case and ree?amine the
<estioned findin!s+
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[12]
1n this case# the follo)in! circmstances clearl5 manifest private respondent*s intention to sever his ties )ith
petitioners+ First# private respondent even bra!!ed to his co7)orkers his plan to <it his .ob at Cesar*s ,alace
/arbershop and -assa!e Clinic as borne ot b5 the affidavit e?ected b5 his former co7)orkers+
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[11] 0econd# he
srrendered the shop*s ke5s and took a)a5 all his thin!s from the shop+ Third# he did not report an5more to the
shop )ithot !ivin! an5 valid and .stifiable reason for his absence+ Forth# he immediatel5 so!ht a re!lar
emplo5ment in another barbershop# despite previos assrance that he cold remain in petitioners* emplo5+
Fifth# he filed a complaint for ille!al dismissal )ithot pra5in! for reinstatement+
-oreover# pblic respondent*s assertion that the instittion of the complaint for ille!al dismissal manifests
private respondent*s lack of intention to abandon his .ob
1"
[1"] is ntenable+ The rle that abandonment of )ork is
inconsistent )ith the filin! of a complaint for ille!al dismissal is not applicable in this case+ 0ch rle applies
)here the complainant seeks reinstatement as a relief+ Corollaril5# it has no application )here the complainant
does not pra5 for reinstatement and .st asks for separation pa5 instead
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[19] as in the present case+ 1t !oes
)ithot sa5in! that the pra5er for separation pa5# bein! the alternative remed5 to reinstatement#
1%
[1%] contradicts
private respondent*s stance+ That he )as ille!all5 dismissed is belied b5 his o)n pleadin!s as )ell as
contemporaneos condct+
6e are# therefore# constrained to a!ree )ith the findin!s of the Labor 4rbiter that private respondent left his .ob
volntaril5 for reasons not attribtable to petitioners+ 1t )as error and !rave abse of discretion for the NLRC to
hold petitioners liable for ille!al dismissal of private respondent+
WHEREFORE, the petition is BR4NTFD+ The assailed Decision and Resoltion of pblic respondent NLRC
are reversed and set aside+ The decision of the Labor 4rbiter dated &ne 1(# 1$$9# is hereb5 reinstated+ No costs+
SO ORDERED.
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