GREGORIO V. TONGKO v. THE MANUFACTURERS LIFE INSURANCE CO. (PHILS.), INC. and RENATO A.

VERGEL DE DIOS

FACTS: Taking from the November 2008 decision, the facts are as follows:

Manufacturers Life Insurance, Co. is a domestic corporation engaged in life insurance business. De Dios
was its President and Chief Executive Officer. Petitioner Tongko started his relationship with Manulife in
1977 by virtue of a Career Agent's Agreement.

Pertinent provisions of the agreement state that:

It is understood and agreed that the Agent is an independent contractor and nothing contained herein
shall be construed or interpreted as creating an employer-employee relationship between the Company
and the Agent.

a) The Agent shall canvass for applications for Life Insurance, Annuities, Group policies and other
products offered by the Company, and collect, in exchange for provisional receipts issued by the Agent,
money due or to become due to the Company in respect of applications or policies obtained by or
through the Agent or from policyholders allotted by the Company to the Agent for servicing, subject to
subsequent confirmation of receipt of payment by the Company as evidenced by an Official Receipt
issued by the Company directly to the policyholder.

b) The Company may terminate this Agreement for any breach or violation of any of the provisions
hereof by the Agent by giving written notice to the Agent within fifteen (15) days from the time of the
discovery of the breach. No waiver, extinguishment, abandonment, withdrawal or cancellation of the
right to terminate this Agreement by the Company shall be construed for any previous failure to exercise
its right under any provision of this Agreement.

c) Either of the parties hereto may likewise terminate his Agreement at any time without cause, by giving
to the other party fifteen (15) days notice in writing.
Sometime in 2001, De Dios addressed a letter to Tongko, then one of the Metro North Managers,
regarding meetings wherein De Dios found Tongko's views and comments to be unaligned with the
directions the company was taking. De Dios also expressed his concern regarding the Metro North
Managers' interpretation of the company's goals. He maintains that Tongko's allegations are unfounded.
Some allegations state that some Managers are unhappy with their earnings, that they're earning less
than what they deserve and that these are the reasons why Tonko's division is unable to meet agency
development objectives. However, not a single Manager came forth to confirm these allegations. Finally,
De Dios related his worries about Tongko's inability to push for company development and growth.

De Dios subsequently sent Tongko a letter of termination in accordance with Tongko's Agents Contract.
Tongko filed a complaint with the NLRC against Manulife for illegal dismissal, alleging that he had an
employer-employee relationship with De Dios instead of a revocable agency by pointing out that the
latter exercised control over him through directives regarding how to manage his area of responsibility
and setting objectives for him relating to the business. Tongko also claimed that his dismissal was
without basis and he was not afforded due process. The NLRC ruled that there was an employer-
employee relationship as evidenced by De Dios's letter which contained the manner and means by which
Tongko should do his work. The NLRC ruled in favor of Tongko, affirming the existence of the employer-
employee relationship.

The Court of Appeals, however, set aside the NLRC's ruling. It applied the four-fold test for determining
control and found the elements in this case to be lacking, basing its decision on the same facts used by
the NLRC. It found that Manulife did not exert control over Tongko, there was no employer-employee
relationship and thus the NLRC did not have jurisdiction over the case.

The Supreme Court reversed the ruling of the Court of Appeals and ruled in favor of Tongko. However,
the Supreme Court issued another Resolution dated June 29, 2010, reversing its decision. Tongko filed a
motion for reconsideration, which is now the subject of the instant case.

ISSUE: Did the Supreme Court err in issuing the June 29, 2010 resolution, reversing its earlier decision
that an employer-employee relationship existed?

HELD: The Supreme Court finds no reason to reverse the June 29, 2010 decision. Control over the
performance of the task of one providing service both with respect to the means and manner, and the
results of the service is the primary element in determining whether an employment relationship exists.
The Supreme Court ruled petitioners Motion against his favor since he failed to show that the control
Manulife exercised over him was the control required to exist in an employer-employee relationship;
Manulifes control fell short of this norm and carried only the characteristic of the relationship between
an insurance company and its agents, as defined by the Insurance Code and by the law of agency under
the Civil Code.

In the Supreme Courts June 29, 2010 Resolution, they noted that there are built-in elements of control
specific to an insurance agency, which do not amount to the elements of control that characterize an
employment relationship governed by the Labor Code.The Insurance Code provides definite parameters
in the way an agent negotiates for the sale of the companys insurance products, his collection activities
and his delivery of the insurance contract or policy. They do not reach the level of control into the means
and manner of doing an assigned task that invariably characterizes an employment relationship as
defined by labor law.

To reiterate, guidelines indicative of labor law "control" do not merely relate to the mutually desirable
result intended by the contractual relationship; they must have the nature of dictating the means and
methods to be employed in attaining the result. Tested by this norm, Manulifes instructions regarding
the objectives and sales targets, in connection with the training and engagement of other agents, are
among the directives that the principal may impose on the agent to achieve the assigned tasks.They are
targeted results that Manulife wishes to attain through its agents. Manulifes codes of conduct, likewise,
do not necessarily intrude into the insurance agents means and manner of conducting their sales. Codes
of conduct are norms or standards of behavior rather than employer directives into how specific tasks
are to be done.

In sum, the Supreme Court found absolutely no evidence of labor law control. DENIED.

Atok Big-Wedge Company Inc vs Gison

GR No.169510

Facts:

Jesus P. Gison was engaged as part-time consultant on retainer basis by the petitioner Atok. Petitioner
did not require respondent to its office on a regular basis, except when occasionally requested by the
management to discuss matters needing his expertise as a consultant. As payment for his services,
respondent received a retainer fee of P3,000.00 which was delivered to him at his residence or in a local
restaurant. The said arrangement continued for the next eleven years.

Since the respondent was getting old he requested that petitioner cause his registration with the SSS but
petitioner did not accede his request.

Respondent filed a complaint with the SSS against petitioner for the latter’s refusal to cause his
registration with the SSS. On the same date the petitioner issued a memo advising the termination of the
respondent’s retainer contract. Thus he filed for illegal dismissal.

Issue:

Whether employer-employee relationship exists?

Held:

No. To ascertain the existence of an employer-employee relationship jurisprudence has invariably

adhered to the four-fold test to wit: (1) the selection and engagement of the employee; (2) the payment
of wages; (3) the power of dismissal; and (4) the power to control the employee’s conduct, or the so-
called “control test”.

The commonly so called control test is commonly regarded as the most crucial and determinative
indicator of the presence or absence of an employer-employee relationship. Under the control test, an
employer-employee relationship exists where the person for whom the services are performed reserves
the right to control not only the end achieved, but also the manner and means to be used in reaching
that end.

Applying the aforementioned test, an employer-employee relationship is apparently absent in the case
at bar. Among other things, respondent was not required to report everyday during regular office hours
of petitioner. Respondent’s monthly retainer fees were paid to him either at his residence or a local
restaurant. More importantly, petitioner did not prescribe the manner in which respondent would
accomplish any of the tasks in which his expertise as a liaison officer was needed; respondent was left
alone and given the freedom to accomplish the tasks using his own means and methods. Respondent
was assigned tasks to perform, but petitioner did not control the manner and methods by which
respondent performed these tasks. The absence of the element of control on the part of the petitioner
engenders a conclusion that he is not an employee of the petitioner.

BITOY JAVIER (DANILO P. JAVIER), Petitioner, v. FLY ACE CORPORATION and FLORDELYN CASTILLO,
Respondents.

FACTS: Javier an employee of Fly Ace performing various work for the latter filed a complaint before the
NLRC for underpayment of salaries and other labor standard benefits.

He alleged that he reported for work from Monday to Saturday from 7:00 oclock in the morning to 5:00
oclock in the afternoon; that during his employment, he was not issued an identification card and pay
slips by the company; that he reported for work but he was no longer allowed to enter the company
premises by the security guard upon the instruction of Ruben Ong (Mr. Ong), his superior; that after
several minutes of begging to the guard to allow him to enter, he saw Ong whom he approached and
asked why he was being barred from entering the premises; that Ong replied by saying, Tanungin mo
anak mo;that he discovered that Ong had been courting his daughter Annalyn after the two met at a
fiesta celebration in Malabon City; that Annalyn tried to talk to Ong and convince him to spare her father
from trouble but he refused to accede; that thereafter, Javier was terminated from his employment
without notice; and that he was neither given the opportunity to refute the cause/s of his dismissal from
work.

For its part p, Fly Ace denied the existence of employer-employee relationship between them and Javier
as the latter was only called roughly 5 to 6 times only in a month whenever the vehicle of its contracted
hauler, Milmar Hauling Services, was not available. Labor Arbiter dismissed the complaint ruling that
respondent Fly Ace is not engaged in trucking business but in the importation and sales of groceries.
Since there is a regular hauler to deliver its products, we give credence to Respondents claim that
complainant was contracted on pakiao basis.

On appeal, NLRC reversed the decisin of the LA. It was of the view that a pakyaw-basis arrangement did
not preclude the existence of employer-employee relationship. Payment by result x x x is a method of
compensation and 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. The NLRC further averred that it did not follow that a worker was a job contractor and not
an employee, just because the work he was doing was not directly related to the employers trade or
business or the work may be considered as extra helper as in this case; and that the relationship of an
employer and an employee was determined by law and the same would prevail whatever the parties
may call it. Finding Javier to be a regular employee, the NLRC ruled that he was entitled to a security of
tenure. For failing to present proof of a valid cause for his termination, Fly Ace was found to be liable for
illegal dismissal of Javier who was likewise entitled to backwages and separation pay in lieu of
reinstatement. However, on appeal, CA reversed the ruling of NLRC

The CA ruled thatJaviers failure to present salary vouchers, payslips, or other pieces of evidence to
bolster his contention, pointed to the inescapable conclusion that he was not an employee of Fly Ace.
Further, it found that Javiers work was not necessary and desirable to the business or trade of the
company, as it was only when there were scheduled deliveries, which a regular hauling service could not
deliver, that Fly Ace would contract the services of Javier as an extra helper. Lastly, the CA declared that
the facts alleged by Javier did not pass the control test.

He contracted work outside the company premises; he was not required to observe definite hours of
work; he was not required to report daily; and he was free to accept other work elsewhere as there was
no exclusivity of his contracted service to the company, the same being co-terminous with the trip only.
Since no substantial evidence was presented to establish an employer-employee relationship, the case
for illegal dismissal could not prosper. Hence, this appeal.

ISSUE:

Does an employer-employee relationship exist between Javier and Fly Ace, thereby holding the latter
guilty of illegal dismissal?

HELD: As the records bear out, the LA and the CA found Javiers claim of employment with Fly Ace as
wanting and deficient. The Court is constrained to agree. Labor officials are enjoined to use reasonable
means to ascertain the facts speedily and objectively with little regard to technicalities or formalities but
nowhere in the rules are they provided a license to completely discount evidence, or the lack of it. The
quantum of proof required, however, must still be satisfied. Hence, when confronted with conflicting
versions on factual matters, it is for them in the exercise of discretion to determine which party deserves
credence on the basis of evidence received, subject only to the requirement that their decision must be
supported by substantial evidence.Accordingly, the petitioner needs to show by substantial evidence
that he was indeed an employee of the company 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. Whoever claims entitlement to the benefits provided by law
should establish his or her right thereto x x x. Sadly, Javier failed to adduce substantial evidence as basis
for the grant of relief.

By way of evidence on this point, all that Javier presented were his self-serving statements purportedly
showing his activities as an employee of Fly Ace. Clearly, Javier failed to pass the substantiality
requirement to support his claim. Hence, the Court sees no reason to depart from the findings of the CA.

While Javier remains firm in his position that as an employed stevedore of Fly Ace, he was made to work
in the company premises during weekdays arranging and cleaning grocery items for delivery to clients,
no other proof was submitted to fortify his claim. The lone affidavit executed by one Bengie Valenzuela
was unsuccessful in strengthening Javiers cause.

The Court is of the considerable view that on Javier lies the burden to pass the well-settled tests to
determine the existence of an employer-employee relationship, viz: (1) the selection and engagement of
the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control the
employees conduct. Of these elements, the most important criterion is whether the employer controls
or has reserved the right to control the employee not only as to the result of the work but also as to the
means and methods by which the result is to be accomplished.

DENIED

ABANTE vs LAMADRID BEARING & PARTS CO. Case Digest

EMPERMACO B. ABANTE, JR., petitioner, vs. LAMADRID BEARING & PARTS CORP. and JOSE LAMADRID,
President, respondents.

[G.R. No. 159890 May 28, 2004]

FACTS: Petitioner was a salesman of respondent company earning a commission of 3% of the total paid
up sales covering the whole area of Mindanao. Aside from selling, he was also tasked with collection.
Respondent corporation through its president, often required Abante to report to a particular area and
occasionally required him to go to Manila to attend conferences.

Later on, bad blood ensued between the parties due to some bad accounts that Lamadrid forced
petitioner to cover. Later petitioner found out that respondent had informed his customers not to deal
with petitioner since it no longer recognized him as a commission salesman. Petitioner filed a complaint
for illegal dismissal with money claims against respondent company and its president, Jose Lamadrid.

By way of defense, respondents countered that petitioner was not its employee but a freelance
salesman on commission basis.

ISSUE: Whether or not petitioner, as a commission salesman, is an employee of respondent corporation.

HELD: To determine the existence of an employee-employer relationship, we apply the four fold test: 1)
the manner of selection and engagement; (2) the payment of wages; (3) the presence or absence of the
power of dismissal; and (4) the presence or absence of the power of control.

Applying the aforementioned test, an employer-employee relationship is notably absent in this case. It is
true that he was paid in commission yet no quota was imposed therefore a dismal performance would
not warrant a ground for dismissal. There was no specific office hours he was required to observe. He
was not designated to conduct services at a particular area or time. He pursued his selling without
interference or supervision from the company. The company did not prescribe the manner of selling
merchandise. While he was sometimes required to report to Manila, these were only intended to guide
him. Moreover, petitioner was free to offer his services to other companies.

Art. 280 is not a crucial factor because it only determines two kinds of employees. It doen;t apply where
there is no employer-employee relationship. While the term commission under Article 96 of the LC was
construed as being included in the term “wage”, there is no categorical pronouncement that the
payment of commission is conclusive proof of the existence of an employee-employer relationship.

The decision of the CA is affirmed.

South Davao Development Corp. vs. Sergio L. Gamo, et al (G.R. No. 171814, May 8, 2009)

Facts:

Petitioner filed a petition for certiorari for the decision made by the CA in ascertaining that the private
respondents (Gamo and those copraceros under him) were regular seasonal employees who can be
dismissed by the petitioner at the end of the season provided due process is observed. Also, SDDC
petitions for CA’s ruling that Eleanor Cosep did not abandon her work.

Petitioner SDDC is the operator of coconut and mango farm in Davao Oriental and Davao del Sur. On
August 1963, petitioner hired Sergio Gamo as foreman. In 1987, petitioner appointed Gamo as a copra
maker contractor. 3 of the respondents were all employees in the coconut farm while 4 of them were all
employees of the mango farm. All of these respondents were later transferred by SDDC to Gamo as
copraceros. From 1987 to 1999, Gamo and petitioner entered into a profit-sharing agreement (30%-70%,
respectively). The other copra workers were paid by Gamo from his 30% share. Sometime later, Gamo
and petitioner were not able to agree on the profit-sharing. Thus, petitioner terminated Gamo and the
other copra workers. The respondents alleged they were illegally dismissed.

Respondent Eleonor Cosep was also employed as a mango classifier in the packing house of SDDC’s
mango farm in Davao Oriental. In October 1999, she did not report for work as she had wanted to raise
and sell pigs instead.

Issues:

Whether or not there is an employer-employee relationship between SDDC and Gamo

Whether or not Eleonor abandoned her work at SDDC

Rulings:

To determine the existence of an employee-employer relationship, the 4-fold test must be applied:

Selection and engagement of the employee

Payment of wages

Power of dismissal

Power of control

Among these elements, the power of control is the most important. From the time they were hired up to
the time they were reassigned, the respondents’ status as SDDC’s employees did not cease. Power to
control the manner of doing the work is determinant as long as it exists. It does not necessarily need
actual exercise of such power to control. Power to control existed in the petitioners’ reassignment the
employees, even there was a change in the payment scheme.

On the other case, it was ruled that Eleanor did not abandon her work. Abandonment, as a just and valid
ground for dismissal, required the deliberate and unjustified refusal of the employee to return for work.
Two (2) elements must be present:

Failure to report for work or absence without valid or justifiable reason, and;

Clear intention to sever the employee-employer relationship

The 2nd element is more determinant of the intent and must be evidenced by overt acts. As such,
Eleonor’s mere absence is insufficient as the burden of proof rests upon the employer to show that the
employee clearly and deliberately intended to discontinue her employment with no intention of
returning. In SDDC’s case, the employer did not undertake with the due process requirement of sending
notices to the employee prior to dismissal.

DEALCO FARMS, INC. vs. NATIONAL LABOR RELATIONS COMMISSION (5th DIVISION), CHIQUITO BASTIDA,
and ALBERT CABAN
GR No. 153192

January 30, 2009

FACTS:

Petitioner Dealco Farms is a corporation engaged in the business of importation, production, fattening
and distribution of live cattle for sale to meat dealers, meat traders, meat processors, canned good
manufacturers and other dealers in Mindanao and in Metro Manila. Petitioner imports cattle by the
boatload from Australia into the ports of General Santos City, Subic, Batangas, or Manila. In turn, these
imported cattle are transported to, and housed in, petitioner’s farms in Polomolok, South Cotabato, or in
Magalang, Pampanga, for fattening until the cattle individually reach the market weight of 430 to 450
kilograms.

Respondents Albert Caban and Chiquito Bastida were hired by petitioner on June 25, 1993 and October
29, 1994, respectively, as escorts or "comboys" for the transit of live cattle from General Santos City to
Manila. Respondents’ work entailed tending to the cattle during transportation. It included feeding and
frequently showering the cattle to prevent dehydration and to develop heat resistance. On the whole,
respondents ensured that the cattle would be safe from harm or death caused by a cattle fight or any
such similar incident.

Upon arrival in Manila, the cattle are turned over to and received by the duly acknowledged buyers or
customers of petitioner, at which point, respondents’ work ceases. For every round trip travel which
lasted an average of 12 days, respondents were each paid P1,500.00. The 12-day period is occasionally
extended when petitioner’s customers are delayed in receiving the cattle. In a month, respondents
usually made two trips.

On August 19, 1999, respondents were told by Dealco’s hepe de viaje that their replacement had been
effected immediately, but no reason was given for their replacement. Respondents attempted to meet
with petitioner but failed.

Petitioner denies the existence of an employer-employee relationship with respondents, claiming that:
(a) respondents are independent contractors who offer "comboy" services to various shippers and
traders of cattle, not only to petitioner; (b) in the performance of work on board the ship, respondents
are free from the control and supervision of the cattle owner since the latter is interested only in the
result thereof; (c) in the alternative, respondents can only be considered as casual employees
performing work not necessary and desirable to the usual business or trade of petitioner, i.e., cattle
fattening to market weight and production; and (d) respondents likewise failed to complete the one-year
service period, whether continuous or broken, set forth in Article 280 of the Labor Code, as petitioner’s
shipments were substantially reduced in 1998-1999, thereby limiting the escort or "comboy" activity for
which respondents were employed.

ISSUE:

Whether or not an employer-employee relationship existed between petitioner and respondents and
therefore the latter’s termination was illegal.

HELD:

Complainant’s task of escorting the livestock shipped to Manila, taking care of the livestock in transit, is
an activity which is necessary and desirable in the usual business or trade of respondent. It is of judicial
notice that the bulk of the market for livestock of big livestock raisers such as respondent is in Manila.
Hogs do not swim, they are shipped. The caretaker is a component of the business, a part of the scheme
of the operation.

More, it also appears that respondents had rendered service for more than one year doing the same task
repeatedly, thus, even assuming they were casual employees they may be considered regular employees
with respect to the activity in which they were employed and their employment shall continue while
such activity exists (last par. of Art. 280).

In the case at bench, both the Labor Arbiter and the NLRC were one in their conclusion that respondents
were not independent contractors, but employees of petitioner. In determining the existence of an
employer-employee relationship between the parties, both the Labor Arbiter and the NLRC examined
and weighed the circumstances against the four-fold test which has the following elements: (1) the
power to hire, (2) the payment of wages, (3) the power to dismiss, and (4) the power to control the
employees’ conduct, or the so-called "control test." Of the four, the power of control is the most
important element. More importantly, the control test merely calls for the existence of the right to
control, and not necessarily the exercise thereof.
The presence of the four (4) elements in the determination of an employer-employee relationship has
been clearly established by the facts and evidence on record, starting with the admissions of petitioner
who acknowledged the engagement of respondents as escorts of their cattles shipped from General
Santos to Manila, and the compensation of the latter at a fee of P1,500.00 per trip.

The element of control, jurisprudentially considered the most essential element of the four, has not been
demolished by any evidence to the contrary. The branch has noticed that the preparation of the
shipment of cattle, manning and feeding them while in transit, and making a report upon their return to
General Santos that the cattle shipped and which reached Manila actually tallied were all indicators of
instructions, supervision and control by [petitioner] on [respondents’] performance of work as escorts
for which they were hired. This we agree on all fours. The livestock shipment would cost thousands of
pesos and the certainty of it reaching its destination would be the only thing any operator would
consider at all time and under all circumstances. It is illogical for [petitioner] to argue that the shipment
was not necessary or desirable to their business, as their business was mainly livestock production,
because they were undeniably the owners of the cattle escorted by respondents. Should losses of a
shipment occur due to respondents’ neglect these would still be petitioners’ loss, and nobody else’s.

Considering that we have sustained the Labor Arbiter’s and the NLRC’s finding of an employer-employee
relationship between the parties, we likewise sustain the administrative bodies’ finding of respondents’
illegal dismissal. Accordingly, we are not wont to disturb the award of separation pay, claims for COLA
and union service fees fixed at 10% of the total monetary award, as these were based on the finding that
respondents were dismissed without just or authorized cause.

LAZARO vs. SOCIAL SECURITY COMMISSION Case Digest

ANGELITO LAZARO vs. SOCIAL SECURITY COMMISSION

435 SCRA 472 (2004)

Facts: Respondent Rosalina M. Laudato filed a petition before the SSC for social security coverage and
remittance of unpaid monthly social security contributions against her three (3) employers. Among the
respondents was herein petitioner Angelito L. Lazaro, proprietor of Royal Star Marketing (“Royal Star”),
which is engaged in the business of selling home appliances.
Lazaro denied that Laudato was an employee but instead claimed that she was an agent of the company.
Lazaro also maintained that she was not mandated to work of definite work hours and thus not deemed
to be a regular employee of Royal Star Marketing, the company of Lazaro.

SSC promulgated a decision rendering that Laudato is a regular employee of Royal Star Marketing and
entitled to social security contributions. Lazaro filed a petition for review before the CA where CA ruled
that Laudato was an employee of Royal Star Marketing. This petition before the Court assails same
arguments raised by Lazaro in SSC. She raised that Laudato was not an employee of Royal Star Marketing
since Royal Star had no control over the activities of Laudato.

Issue: Whether or not Laudato was a regular employee of Royal Star Marketing and thus, entitled to
social security contributions.

Ruling: It is an accepted doctrine that for the purposes of coverage under the Social Security Act, the
determination of employer-employee relationship warrants the application of the “control test,” that is,
whether the employer controls or has reserved the right to control the employee, not only as to the
result of the work done, but also as to the means and methods by which the same is accomplished.

The SSC, applying the control test found that Laudato was an employee of Royal Star. The Court agrees
with the findings of the SSC and the CA. The fact that Laudato was paid by way of commission does not
preclude the establishment of an employer-employee relationship.

In the case of Grepalife v. Judico, the Court upheld the existence of an employer-employee relationship
between the insurance company and its agents, despite the fact that the compensation that the agents
on commission received was not paid by the company but by the investor or the person insured. The
relevant factor remains, as stated earlier, whether the "employer" controls or has reserved the right to
control the "employee" not only as to the result of the work to be done but also as to the means and
methods by which the same is to be accomplished.

Neither does it follow that a person who does not observe normal hours of work cannot be deemed an
employee.
In the case of Cosmopolitan Funeral Homes, Inc. v. Maalat, the employer similarly denied the existence
of an employer-employee relationship, as the claimant according to it, was a “supervisor on commission
basis” who did not observe normal hours of work. This Court declared that there was an employer-
employee relationship, noting that “[the] supervisor, although compensated on commission basis, [is]
exempt from the observance of normal hours of work for his compensation is measured by the number
of sales he makes.”