JO vs.

NLRC
Ponente: QUISUMBING, J

FACTS:
Private respondent Peter Mejila worked as barber in a barbershop owned by Dina Tan who subsequently sold the
same to petitioners Paz Martin Jo and Cesar Jo. All the employees were absorbed by the new owners. Jo designated Mejila as
caretaker. Thereafter, Mejila 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 Mejila reported the matter to Atty. Macaraya of the
labor department. Macaraya summoned Mejila and petitioners to a conference and found out that the dispute was not
between Mejila and petitioners but between Mejila and Tinoy. During the mediation meeting Mejila demanded payment for
separation pay and other monetary benefits although he was not being dismissed. Mejila continued reporting for work at the
barbershop but after some time he began working as a regular barber at a different barbershop leaving the keys and getting
his belongings from the old barbershop. Mejila then filed a complaint for illegal dismissal with prayer for payment of
separation pay, other monetary benefits, attorneys fees and damages. Significantly, the complaint did not seek reinstatement
as a positive relief. In its decision, Labor Arbiter found that Mejila was an employee of petitioners, and that he was not
dismissed but had left his job voluntarily because of his misunderstanding with his co-worker. The Labor Arbiter dismissed the
complaint, but ordered petitioners to pay Mejila his 13th month pay and attorneys fees. Both parties appealed to the NLRC
who in turn set aside the labor arbiters judgment, sustaining the labor arbiters finding as to the existence of employer-
employee relationship, but it ruled that Mejila was illegally dismissed. Hence, the petitioners were ordered to reinstate Mejila
and pay the latters backwages, 13th month pay, separation pay and attorneys fees for failure to observe due process before
dismissing the complaint. Its motion for reconsideration having been denied in a Resolution, petitioners filed the instant
petition.

ISSUES:

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

HELD:
1. 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.
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. There was enough basis to declare
private respondent an employee of petitioners.