Sunteți pe pagina 1din 6

Employer-Employee Relationship First, as to the selection and engagement of the

employee:
A basic concept in labor law is that of “Clearly, respondent was hired by TAPE.
“employer-employee relationship”. When is an Respondent presented his identification card to
employer-employee relationship deemed to prove that he is indeed an employee of TAPE. It
exist? The Supreme Court had once again has been in held that in a business
occasion to answer this question in the case of establishment, an identification card is usually
TELEVISION AND PRODUCTION EXPONENTS, provided not just as a security measure but to
INC. and/or ANTONIO P. TUVIERA versus mainly identify the holder thereof as a bona fide
ROBERTO C. SERVAÑA, (G.R. No. 167648, employee of the firm who issues it.”
January 28, 2008). Second, as to the payment of wages:
“Respondent claims to have been receiving
The case involves a complaint for illegal P5,444.44 as his monthly salary while TAPE
dismissal and nonpayment of benefits filed by prefers to designate such amount as talent
Servana against TAPE. Servana alleged that he fees. Wages, as defined in the Labor Code, are
was first connected with Agro-Commercial remuneration or earnings, however designated,
Security Agency but was later on absorbed by capable of being expressed in terms of money,
TAPE as a regular company guard. whether fixed or ascertained on a time, task,
On its part TAPE contended that Servana was piece or commission basis, or other method of
merely a “talent” and/or independent calculating the same, which is payable by an
contractor. employer to an employee under a written or
unwritten contract of employment for work
In resolving the issue of employer-employee done or to be done, or for service rendered or
relationship the Supreme Court made use of the to be rendered. It is beyond dispute that
four-fold test: respondent received a fixed amount as monthly
“Jurisprudence is abound [sic] with cases that compensation for the services he rendered to
recite the factors to be considered in TAPE.”
determining the existence of employer-
employee relationship, namely: Thirdly, as to the power of dismissal:
“The Memorandum informing respondent of
(a) the selection and engagement of the the discontinuance of his service proves that
employee; TAPE had the power to dismiss respondent.”
(b) the payment of wages; And finally, as to the power of control, which is
(c) the power of dismissal; and the most important test:
(d) the employer’s power to control the “Control is manifested in the bundy cards
employee with respect to the means and submitted by respondent in evidence. He was
method by which the work is to be required to report daily and observe definite
accomplished. work hours.”
What is significant are the concrete objects
*The most important factor involves which for the Supreme Court served as
the control test. Under the control test, there is evidences for the existence of an employer-
an employer-employee relationship when the employee relationship between the parties,
person for whom the services are performed namely:
reserves the right to control not only the end
achieved but also the manner and means used (1) The identification card;
to achieve that end.” (2) The fixed amount as monthly compensation;
The Court further observed that these factors (3) The Memorandum of discontinuance; and
were present in the case. (4) The bundy cards.
Where these or similar evidences are present (c) seasonal employees or those who work or
the conclusion is well-nigh inevitable that an perform services which are seasonal in nature,
employer-employee relationship exists. and the employment is for the duration of the
season;[8] and

Kinds of employees (d) casual employees or those who are not


regular, project, or seasonal employees.
Jurisprudence has added a fifth kind— a fixed-
ART. 280. Regular and Casual term employee.[9]
Employment.— The provisions of written
agreement to the contrary notwithstanding and
regardless of the oral agreement of the parties,  MANAGEMENTPREROGATIVES
an employment shall be deemed to be regular
where the employee has been engaged to
perform activities which are usually necessary
or desirable in the usual business or trade of the  Management prerogative•
employer, except where the employment has
been fixed for a specific project or undertaking
the completion or termination of which has
been determined at the time of the  Definition: An exclusive and special
engagement of the employee or where the right, power or privilege granted to
work or service to be performed is seasonal in business owners.
nature and the employment is for the duration
of the season. - Property right attributed to the owner
of a business establishment
An employment shall be deemed to be
casual if it is not covered by the preceding - Par.4, Sec. 3, ART. XIII, Philippine
paragraph: Provided, That, any employee who Constitution: “The state shall regulate
has rendered at least one year of service, the relations between workers and
whether such service is continuous or broken, employers, recognizing the x x x right of
shall be considered a regular employee with enterprises to reasonable returns of
respect to the activity in which he is employed investments, and to expansion &
and his employment shall continue while such growth.”
actually exists.[7]
The foregoing contemplates four (4) kinds - ART. 428 of the Civil Code: “The owner
of employees: has the right to enjoy and dispose of a
thing, without other limitations than
(a) regular employees or those who have been those established by law.”
“engaged to perform activities which are usually
necessary or desirable in the usual business or  Based on what we was stated… The
trade of the employer”; owner of a business establishment has,
among others, the right to control or
(b) project employees or those “whose direct its business, the right to its fruits
employment has been fixed for a specific and the right to dispose the same,
project or undertaking[,] the completion or subject to the regulations of the police
termination of which has been determined at power of the state.
the time of the engagement of the employee”;
Example. establishment. (San Felipe Neri School
of Mandaluyong vs NLRC, et al., GR NO.
When an owner of a business 78350, 9/11/91)
enterprise, after operating a profitable
business for several years and decides
to close the same for he is already tired
of doing business and wants to travel  The Right to DISMISS-
abroad for vacation, absolutely, he CAN
CLOSE the business. However, he is - The company has the right to dismiss
obliged to pay separation pay to employees in accordance with the
workers as mandated by law. (Art. 283, causes and procedures established by
Labor Code.) law. This particular right must be
exercised with CAUTION and without
 Most common abuse of discretion because termination
ManagementPrerogatives affects the right of the worker to
Security of Tenure.
 The Right to Hire
 The Right to Dismiss (Fire/Terminate) - Art. 279 – in cases of Regular
• The Right to Transfer Employment, termination on the
• The Right to Promote and Demote grounds of just and authorized causes,
• The Right to Discipline subject to the requirements of due
• The Right to Lay Down Policies process.
• The Right to Establish Working Hours
• The right to Organize and Reorganize
• The Right to Reasonable return on investment
• The Right to Expansion and Growth  The Right to DISMISS (continued)• End
of contract? Completion of
contract/phase? • No prior notice is
 The Right to HIRE• The company has required.• Termination of probationary
the exclusive right to purchase labor employment? • Notice served on
from any person whom it chooses. employee within a reasonable time•
Thus, the transferee in good faith of a Any decision of termination shall be
business establishment has no without prejudice to the right of the
obligation to absorb employees of the worker to contest the same by filing a
transferor and to continue on complaint with the RAB of the NLRC.•
employing them. (MDII Employees Validity of 30 day preventive
Association vs Presidential Assistant on suspensions.
Legal Affairs, 79 SCRA 40)• There is no  The Right to Transfer• The company has
law which requires the purchaser to the right to transfer an employee from
absorb the employees of the selling one office to another within the
corporation. As there is no such law, business establishment provided that
the most that the purchasing company there is no demotion in rank, salary,
may do, for purposes of public policy benefits and other privileges.• This is a
and social justice, is to give preference privilege inherent in the employer’s
to the qualified separated employees of right to control and conduct its business
the selling company, who in their enterprise and conduct of its business
judgment are necessary in the operations to achieve its purpose. It
continued operation of the business cannot be denied to the employer.
SCRA 954; PT&T Corp. vs NLRC, Gr No.
152057, 9/29/03)
 The Right to Transfer (continued)• IT is
the employer’s prerogative, based on
its assessment on the following
employee attributes: • Qualifications •  The Right to DISCIPLINE
Aptitudes
- The right of the employer to subject
his employees to disciplinary measures
and the need for discipline have been
• Competence- judicially noticed.

- An employee’s security of tenure


does not give him such a vested right in
his position as would deprive the • Success in industries and public services is
company of its prerogative to change the foundation in which just wages may be
his assignment or transfer him where paid. There can be no success without
he will be most useful. efficiency. There can be no efficiency
without discipline. Thus, when they violate
-When the EE’s transfer is not the rules of discipline, employees and
unreasonable, nor inconvenient, nor laborers jeopardize the interest not only of
prejudicial to him, and it does not the employer but also of their own. In
involve a demotion in rank or violating the rules of discipline, they aim at
diminution in salaries, benefits and killing the hen that lays golden eggs.
privileges, the employee may not Laborers who trample down the rules set
complain that it amounts to for an efficient service are, in effect, parties
constructive dismissal. (PT&T vs NLRC, to a conspiracy against not only to capital
GR NO. 76645, July 23, 1991; Allied but also to labor.The employer has the right
Bank vs CA, GR No. 144412, 11/18/03) to instill disciplinein his employees and to
impose reasonable penalties on erring
 The Right to PROMOTE and DEMOTE• employees pursuant to company rules and
The company has the right to promote regulations. (SMC vs NLRC, GR No. 87277,
employees. May 12, 1989)IF the undesirable one
remains in service, it will demoralize the
other employees (Shoemart vs NLRC Gr No.
74229, 8/11/1989)
• Promotion: scalar ascent of an
employee to another position higher in  The Right to Lay Down Policies,
rank or salary. The right to promote EstablishWorking Hours, and to
carries with it the right to demote.• Organize andReorganizeIn general
There is no law that compels an terms, an employer is free to regulate,
employee to accept a promotion, as a accordingto his own discretion and
promotion is in the nature of a gift or judgment, all aspects ofemployment,
reward, which a person has a right to including work assignments,
refuse. He who uses his won right, workingmethods, time, place and the
injures no one. (Milares vs Subido, 20 manner or work, tools to beused,
processes to be followed, supervision of
workers andworking regulations. (SMC
Sales vs Ople, GR No. 53515,Feb. 8, 1. Four-fold test
1989) 2. Economic reality test
3. Two-tiered test (or Multi-factor test)

Four-fold test elements


 The Right to Reasonable Return
ofInvestment and the Right to The usual test used to determine the
Expansionand Growth existence of employer-employer relationship
is the so-called four-fold test. In applying
-Every business enterprise endeavours this test, the following elements are
to increase its profit and in the process generally considered:
it may adopt or devise means designed
towards expansion and growth.
1. Right to hire or to the selection and
engagement of the employee.
The determination of whether employer-
2. Payment of wages and salaries for
employee relation exists between the parties services.
is very important. For one, entitlement to 3. Power of dismissal or the power to
labor standards benefits such as minimum impose disciplinary actions.
wages, hours of work, overtime pay, etc., or 4. Power to control the employee with
to social benefits under laws such as social respect to the means and methods by
security law, workmen’s compensation law, which the work is to be accomplished.
etc., or to termination pay, or to unionism This is known as the right-of-control
and other labor relations provisions under test.
the Labor Code, are largely dependent on
the existence of employer-employee Right of control test is considered as the most
relationship between the parties. important element in determining the existence
of employment relation.
Another thing is that the existence of
employer-employee relationship between Of the above-mentioned elements, the right of
the parties will determine whether the control test is considered as the most important
controversy should fall within the exclusive element in determining the existence of
jurisdiction of labor agencies or not. If for employment relation. The control test initially
example the parties are not employer-
found application in the case of Viaña vs. Al-
employee of each other, respectively, but
perhaps partners or associates, then any Lagadan and Piga, where the court held that
dispute between them will be not be covered there is an employer-employee relationship
by the jurisdiction of labor agencies but by when the person for whom the services are
regular courts. performed reserves the right to control not only
the end achieved but also the manner and
Three test to determine employer-employee means used to achieve that end.
relationship
Control test thus refers to the employer’s
There are three test commonly used to power to control the employee’s conduct not
determine the existence of employer- only as to the result of the work to be done
employee relationship, viz.: but also with respect to the means and
methods by which the work is to be employer for his continued employment in
accomplished. the latter’s line of business, there is
employer-employee relationship between
In applying this test, it is the existence of the them. Otherwise, there is none.
right, and not the actual exercise thereof,
that is important. Two-tiered test (or Multi-factor test)

Economic reality test The economic reality test is not meant to


replace the right of control test. Rather,
In view of today’s highly specialized these two test are often use in conjunction
workforce, the court are often faced with with each other to determine the existence of
situations where the right-of-control-test employment relation between the parties.
alone can no longer adequately determine This is known as the two-tiered test, or
the existence of employer-employer multi-factor test. This two-tiered test
relationship. Subsequently, another test has involves the following tests:
been devised to fill the gap, known as the
economic reality test.  The putative employer’s power to control the
employee with respect to the means and
In Sevilla v. Court of Appeals, the Court methods by which the work is to be
observed the need to consider the existing accomplished; and
economic conditions prevailing between the
parties, in addition to the standard of right-  The underlying economic realities of the
of-control, to give a clearer picture in activity or relationship.
determining the existence of an employer-
employee relationship based on an analysis
of the totality of economic circumstances of
the worker.

Economic realities of the employment


relations help provide a comprehensive
analysis of the true classification of the
individual, whether as employee,
independent contractor, corporate officer or
some other capacity.

Under economic reality test, the benchmark


in analyzing whether employment relation
exists between the parties is the economic
dependence of the worker on his employer.
That is, whether the worker is dependent on
the alleged employer for his continued
employment in the latter’s line of business.

Applying this test, if the putative employee


is economically dependent on putative

S-ar putea să vă placă și