Bitoy Javier (Danilo Javier) v.

Fly Ace Corporation and Flordelyn Castillo (2012)

Facts:
1. Since 2007, Danilo Bitoy Javier was an employee of Fly Ace

Performed various tasks, such as cleaning and arranging the canned items before their delivery, except in instances
when he would be ordered to accompany the company's delivery vehicles, as pahinante

Reported for work M to S from 7AM to 5PM

He wasnt issued an ID and payslips

2. May 6, 2008: He was no longer allowed to enter the premises, upon instruction of Mr. Ong, his superior

As he was begging the security guard to let him enter, he saw Mr. Ong, whom he approached and asked why he was
being barred from entering

Tanungin mo anak mo Mr. Ong

Bitoy discovered that Mr. Ong had been courting his daughter Annalyn; that Annalyn tried to talk to Mr. Ong and
convince him to spare Bitoy from trouble, but he refused; that Mr. Ong then fired Bitoy
3. May 23, 2008: Bitoy filed a complaint with the NLRC for underpayment of salaries and other labor standard benefits

His evidence: affidavit of Bengie Valenzuela, who alleged that Bitoy was a stevedore or pahinante of Fly Ace from Sept.
2007 to Jan. 2008

Fly Ace said it was in the business of importation and sales of groceries
o That Bitoy was contracted by Mr. Ong as extra helper on a pakyaw basis for 5-6 times a month, whenever the
vehicle of its contracted hauler, Milmar Hauling Services, was unavailable;
o Rate was P300 (increased to P325)
o That on April 30, they no longer needed his services
o That Bitoy was not their employee, and there was no illegal dismissal
o Evidence: Agreement with Milmar Hauling Services (the contracted hauler) and copies of acknowledgment receipts
evidencing payment to Javier daily manpower (pakyaw/piece rate pay)
4. LA: Dismissed, Bitoy failed to present proof he was a regular employee of Fly Ace

He has no ID nor any document showing he received benefits accorded to regular employees

Bitoy was contracted on pakiao basis because Fly Ace has a regular hauler to deliver its products

Claim for underpayment of salaries unfounded; payroll presented had Bitoys signature, which, despite not being
uniform, appeared to be his true signature
5. NLRC: Favored Bitoy

LA wrong because it immediately concluded Bitoy as not a regular employee simply because he failed to present proof

That a pakyaw-basis arrangement did not preclude the existence of employer-employee relationship because payment
is a method of compensation, it does not define the essence of the relation It is a mere method of computing
compensation, not a basis for determining the existence or absence of an employer-employee relationship.

Just because the work done was not directly related to the trade or business or the work was considered as extra, it
does not follow that Bitoy is a job contractor, rather than an employee

There was sufficient basis on the existence of an ER-EE relationship

o There was a reasonable connection between the activity performed (as pahinante) in relation to the business or
trade of the employer (importation, sales, delivery of groceries)
o Not an independent contractor because he could not exercise judgment in the delivery of products, he was only a
helper

Bitoy is entitled to security of tenure; Fly Ace did not present proof for a valid cause of termination, so it is liable for
illegal dismissal, backwages, and separation pay
6. CA: Annulled the NLRC, reinstated the LA

In an illegal dismissal case, the onus probandi rests on the employer; however, before an illegal dismissal case can
prosper, an ER-EE relationship must first be established

Incumbent upon Bitoy to prove he is an employee, but he failed to discharge this burden

Bitoys failure to present salary vouchers, playslips or other pieces of evidence to bolster his contention

The facts alleged by Bitoy did NOT pass the control test
o He contracted work outside the premises
o He was not required to observe definite hours
o He was not required to report daily
o He was free to accept work elsewhere
7. Appeal to the SC
Issues:

1. WON Bitoy is a regular employee

2. WON he is entitled to his monetary claims
Held:
1. NO, he is not a regular employee; affirmed CA
- Bitoy: Fly Ace has nothing to substantiate that he was engaged on a pakyaw basis; and assuming he was hird on
pakyaw basis, it does not preclude his regular employment; acknowledgement receipts with his signature do not show
true nature of employment (relied on Chavez v. NLRC)
o His tasks as pahinante are related to Fly Airs business
o He was subject to the control and supervision of the company (reported M to S, 7AM to 5PM)
o List of deliverable goods prepared by Fly Ace Bitoy was subject to compliance with company rules
o He was illegally dismissed by Fly Ace
- Fly Ace: Bitoy had no substantial evidence to prove ER-EE relationship
o Despite having Milmar Hauling under service contract, they contracted Bitoy as an extra helper or pahinante, on a
mere per trip basis
o Bitoy and the company driver would have the vehicle and products in their custody, and when they left company
premises, they use their own means, method, best judgment and discretion (i.e., no control by Fly Ace)
o Claims of employment by Bitoy are BASELESS, and nothing was presented to substantiate this
o Lopez v. Bodega City: In an illegal dismissal case, the burden of proof is upon the complainant w ho claims to be an
employee. It is essential that an employer-employee relationship be proved by substantial evidence
o Bitoy merely offers factual assertions, unsupported by proof
o Bitoy was not subject to Fly Aces control, he performed his work outside the premises, he was not made to report at
regular work hours, he was free to leave any time
- SC: Evoked equity jurisdiction to examine the factual issues
- The LA and CA found that Bitoys claim of employment is wanting and deficient; the Court is constrained to agree
- Bitoy needs to show by substantial evidence (Sec. 10, Rule VII, New Rules of Procedure of the NLRC) that he was
indeed an employee against which he claims illegal dismissal
- In sum, the rule of thumb remains: the onus probandi falls on petitioner to establish or substantiate such claim by the
requisite quantum of evidence.32 "Whoever claims entitlement to the benefits provided by law should establish his or
her right thereto . . . ." Bitoy failed to adduce substantial evidence as basis for the grant of relief
- All Bitoy presented were self-serving statements showing his activities as employee, but failed to pass the
substantiality requirement (as concluded also by the LA and the CA), from which the SC sees no reason to depart
o Affidavit of Bengie Valenzuela that Bitoy presented was insufficient because all it provided was that he would
frequently see Bitoy at the workplace where he (Bengie) was a stevedore
o SC: Mere presence falls short of proving employment
- SC: The burden is on Bitoy to pass the control test
o Bitoy was not able to persuade the Court that the elements exist (no competent proof that he was a regular
employee, that Fly Ace paid wages as an employee, that Fly Ace could dictate what his conduct wuld be while at
work)
- SC: Fly Ace does not dispute having contracted Javier and paid him on a "per trip" rate as a stevedore, albeit on a
pakyaw basis.
o They presented documentary proof acknowledgment receipts
2. Moot. No need to resolve the second issue.
Obiter: "payment by the piece is just a method of compensation and does not define the essence of the relation."

Payment on a piece-rate basis does not negate regular employment. "The term 'wage' is broadly defined in Article 97 of the
Labor Code as remuneration or earnings, capable of being expressed in terms of money whether fixed or ascertained on a
time, task, piece or commission basis

Payment by the piece is just a method of compensation and does not define the essence of the relations
Disposition: Petition is DENIEID.