LL2 CASE DIGEST

PEOPLE’S BROADCASTING SERVICE (BOMBO RADYO PHILS., INC.)

vs.
THE SECRETARY OF THE DEPARTMENT OF LABOR AND EMPLOYMENT, THE
REGIONAL DIRECTOR, DOLE REGION VII, and JANDELEON JUEZAN

G.R. No. 179652

March 6, 2012

FACTS:
The DOLE Regional Office No. VII conducted an inspection of Bombo Radyo‟s premises in
response to Juezan‟s money claims against the broadcasting company, as a result, an order for
Bombo Radyo to rectify/restitute the labor standards violations discovered during the inspection.
Bombo Radyo failed to make any rectification or restitution, prompting the DOLE to conduct a
summary investigation. Bombo Radyo reiterated its position, made during the inspection, that
Juezan was not its employee. Both parties submitted evidence to support their respective
positions.

DOLE Director Rodolfo M. Sabulao found Juezan to be an employee of Bombo Radyo.

Consequently, Director Sabulao ordered Bombo Radyo to pay Juezan P203, 726.30 representing
his demanded money claims. Bombo Radyo moved for reconsideration and submitted additional
evidence, but Director Sabulao denied the motion. Bombo Radyo then appealed to the DOLE
Secretary, insisting that Juezan was not its employee as he was a drama talent hired on a per
drama basis. The Acting DOLE Secretary dismissed the appeal for non-perfection due to Bombo
Radyo‟s failure to put a cash or surety bond, as required by Article 128(b) of the Labor Code.

Bombo Radyo went to the Court of Appeals (CA) through a petition for certiorari under Rule 65
of the Rules of Court. But was dismissed for lack of merit, hence this appeal. The Court found
that there was no employer-employee relationship between petitioner and private respondent. It
was held that while the DOLE may make a determination of the existence of an employer-
employee relationship, this function could not be co-extensive with the visitorial and
enforcement power provided in Art. 128(b) of the Labor Code, as amended by RA 7730. The
NLRC was held to be the primary agency in determining the existence of an employer-employee
relationship. This was the interpretation of the Court of the clause “in cases where the
relationship of employer-employee still exists” in Art. 128(b).

ISSUES:
Whether the DOLE can determine the existence of EE-ER relationship.

HELD:
YES.

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No limitation in the law was placed upon the power of the DOLE to determine the existence of
an employer-employee relationship. No procedure was laid down where the DOLE would only
make a preliminary finding, that the power was primarily held by the NLRC. The law did not
say that the DOLE would first seek the NLRC’s determination of the existence of an employer-
employee relationship, or that should the existence of the employer-employee relationship be
disputed, the DOLE would refer the matter to the NLRC. The DOLE must have the power to
determine whether or not an employer-employee relationship exists, and from there to decide
whether or not to issue compliance orders in accordance with Art. 128(b) of the Labor Code, as
amended by RA 7730.

The DOLE, in determining the existence of an employer-employee relationship, has a ready set
of guidelines to follow, the same guide the courts themselves use. The elements to determine the
existence of an employment relationship are: (1) the selection and engagement of the employee;
(2) the payment of wages; (3) the power of dismissal; (4) the employer’s power to control the
employee’s conduct. The use of this test is not solely limited to the NLRC. The DOLE Secretary,
or his or her representatives, can utilize the same test, even in the course of inspection, making
use of the same evidence that would have been presented before the NLRC.

The present Resolution now recognizes that the determination of the existence of an employer-
employee relationship by the DOLE, in the exercise of its visitorial and enforcement power
under Article 128(b) of the Labor Code, is entitled to full respect and must be fully supported.
This means that the DOLE has the full power to determine the existence of an employer-
employee relationship in cases brought to it under Article 128(b) of the Labor Code. This power
is parallel and not subordinate to that of the NLRC.

The Court, at the same time, confirms its previous finding that no employer-employee
relationship exists between Juezan and Bombo Radyo based on the evidence presented and that a
Deed of Assignment of Bank Deposits can be a substitute for a cash or surety bond in perfecting
an appeal to the Labor Secretary.

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