163622-2009-People S Broadcasting Bombo Radyo Phils.20160918-3445-1nvp7gl

SECOND DIVISION
[G.R. No. 179652. May 8, 2009.]
PEOPLE'S BROADCASTING (BOMBO RADYO PHILS., INC.) , petitioner,

vs . THE SECRETARY OF THE DEPARTMENT OF LABOR AND
EMPLOYMENT, THE REGIONAL DIRECTOR, DOLE REGION VII, and
JANDELEON JUEZAN , respondents.
DECISION
TINGA , J : p
The present controversy concerns a matter of rst impression, requiring as it

does the determination of the demarcation line between the prerogative of the
Department of Labor and Employment (DOLE) Secretary and his duly authorized
representatives, on the one hand, and the jurisdiction of the National Labor Relations
Commission, on the other, under Article 128 (b) of the Labor Code in an instance where
the employer has challenged the jurisdiction of the DOLE at the very rst level on the
ground that no employer-employee relationship ever existed between the parties. TcHCDE
I.
The instant petition for certiorari under Rule 65 assails the decision and the
resolution of the Court of Appeals dated 26 October 2006 and 26 June 2007,
respectively, in C.A. G.R. CEB-SP No. 00855. 1
The petition traces its origins to a complaint led by Jandeleon Juezan
(respondent) against People's Broadcasting Service, Inc. (Bombo Radyo Phils., Inc.)
(petitioner) for illegal deduction, non-payment of service incentive leave, 13th month
pay, premium pay for holiday and rest day and illegal diminution of bene ts, delayed
payment of wages and non-coverage of SSS, PAG-IBIG and Philhealth before the
Department of Labor and Employment (DOLE) Regional Of ce No. VII, Cebu City. 2 On
the basis of the complaint, the DOLE conducted a plant level inspection on 23
September 2003. In the Inspection Report Form, 3 the Labor Inspector wrote under the
heading "Findings/Recommendations" "non-diminution of bene ts" and "Note:
Respondent deny employer-employee relationship with the complainant see Notice
of Inspection results". In the Notice of Inspection Results 4 also bearing the date 23
September 2003, the Labor Inspector made the following notations:
Management representative informed that complainant is a drama talent hired on
a per drama "participation basis" hence no employer-employeeship [sic] existed
between them. As proof of this, management presented photocopies of cash
vouchers, billing statement, employments of speci c undertaking (a contract
between the talent director & the complainant), summary of billing of drama
production etc. They (mgt.) has [sic] not control of the talent if he ventures into
another contract w/ other broadcasting industries. DTEIaC
On the other hand, complainant Juezan's alleged violation of non-diminution of

benefits is computed as follows:
CD Technologies Asia, Inc. 2016 cdasiaonline.com

@ P2,000/15 days + 1.5 mos. = P 6,000
(August 1/03 to Sept. 15/03)

Note: Recommend for summary investigation or whatever action deem proper. 5
Petitioner was required to rectify/restitute the violations within ve (5) days from
receipt. No recti cation was effected by petitioner; thus, summary investigations were
conducted, with the parties eventually ordered to submit their respective position
papers. 6
In his Order dated 27 February 2004, 7 DOLE Regional Director Atty. Rodolfo M.
Sabulao (Regional Director) ruled that respondent is an employee of petitioner, and that
the former is entitled to his money claims amounting to P203,726.30. Petitioner sought
reconsideration of the Order, claiming that the Regional Director gave credence to the
documents offered by respondent without examining the originals, but at the same
time he missed or failed to consider petitioner's evidence. Petitioner's motion for
reconsideration was denied. 8 On appeal to the DOLE Secretary, petitioner denied once
more the existence of employer-employee relationship. In its Order dated 27 January
2005, the Acting DOLE Secretary dismissed the appeal on the ground that petitioner did
not post a cash or surety bond and instead submitted a Deed of Assignment of Bank
Deposit. 9 EAHDac
Petitioner elevated the case to the Court of Appeals, claiming that it was denied
due process when the DOLE Secretary disregarded the evidence it presented and failed
to give it the opportunity to refute the claims of respondent. Petitioner maintained that
there is no employer-employee relationship had ever existed between it and respondent
because it was the drama directors and producers who paid, supervised and
disciplined respondent. It also added that the case was beyond the jurisdiction of the
DOLE and should have been considered by the labor arbiter because respondent's
claim exceeded P5,000.00.
The Court of Appeals held that petitioner was not deprived of due process as the
essence thereof is only an opportunity to be heard, which petitioner had when it led a
motion for reconsideration with the DOLE Secretary. It further ruled that the latter had
the power to order and enforce compliance with labor standard laws irrespective of the
amount of individual claims because the limitation imposed by Article 29 of the Labor
Code had been repealed by Republic Act No. 7730. 1 0 Petitioner sought reconsideration
of the decision but its motion was denied. 1 1
Before this Court, petitioner argues that the National Labor Relations
Commission (NLRC), and not the DOLE Secretary, has jurisdiction over respondent's
claim, in view of Articles 217 and 128 of the Labor Code. 1 2 It adds that the Court of
Appeals committed grave abuse of discretion when it dismissed petitioner's appeal
without delving on the issues raised therein, particularly the claim that no employer-
employee relationship had ever existed between petitioner and respondent. Finally,
petitioner avers that there is no appeal, or any plain, speedy and adequate remedy in the
ordinary course of law available to it. TIDaCE
On the other hand, respondent posits that the Court of Appeals did not abuse its
discretion. He invokes Republic Act No. 7730, which "removes the jurisdiction of the
Secretary of Labor and Employment or his duly authorized representatives, from the
effects of the restrictive provisions of Article 129 and 217 of the Labor Code, regarding
the con nement of jurisdiction based on the amount of claims". 1 3 Respondent also
claims that petitioner was not denied due process since even when the case was with
the Regional Director, a hearing was conducted and pieces of evidence were presented.
Respondent stands by the propriety of the Court of Appeals' ruling that there exists an
employer-employee relationship between him and petitioner. Finally, respondent argues
that the instant petition for certiorari is a wrong mode of appeal considering that
petitioner had earlier led a Petition for Certiorari, Mandamus and Prohibition with the
Court of Appeals; petitioner, instead, should have filed a Petition for Review. 1 4 TSHIDa
II.
The signi cance of this case may be reduced to one simple question does the
Secretary of Labor have the power to determine the existence of an employer-employee
relationship?
To resolve this pivotal issue, one must look into the extent of the visitorial and
enforcement power of the DOLE found in Article 128 (b) of the Labor Code, as
amended by Republic Act 7730. It reads:
Article 128 (b) Notwithstanding the provisions of Articles 129 and 217 of this
Code to the contrary, and in cases where the relationship of employer-
employee still exists , the Secretary of Labor and Employment or his duly
authorized representatives shall have the power to issue compliance orders to
give effect to the labor standards provisions of this Code and other
labor legislation based on the ndings of labor employment and enforcement
of cers or industrial safety engineers made in the course of inspection. The
Secretary or his duly authorized representative shall issue writs of execution to
the appropriate authority for the enforcement of their orders, except in cases
where the employer contests the ndings of the labor employment and
enforcement of cer and raises issues supported by documentary proofs which
were not considered in the course of inspection. (emphasis supplied) DHTECc
xxx xxx xxx
The provision is quite explicit that the visitorial and enforcement power of the
DOLE comes into play only "in cases when the relationship of employer-employee still
exists". It also underscores the avowed objective underlying the grant of power to the
DOLE which is "to give effect to the labor standard provision of this Code and other
labor legislation". Of course, a person's entitlement to labor standard bene ts under the
labor laws presupposes the existence of employer-employee relationship in the rst
place.
The clause "in cases where the relationship of employer-employee still exists"
signi es that the employer-employee relationship must have existed even before the
emergence of the controversy. Necessarily, the DOLE's power does not apply in
two instances, namely: (a) where the employer-employee relationship has
ceased; and (b) where no such relationship has ever existed.
The rst situation is categorically covered by Sec. 3, Rule 11 of the Rules on the
Disposition of Labor Standards Cases 1 5 issued by the DOLE Secretary. It reads:
Rule II MONEY CLAIMS ARISING FROM
COMPLAINT/ROUTINE INSPECTION
Sec. 3. Complaints where no employer-employee relationship actually exists.
Where employer-employee relationship no longer exists by reason of the fact
that it has already been severed, claims for payment of monetary bene ts fall
within the exclusive and original jurisdiction of the labor arbiters. Accordingly, if
on the face of the complaint, it can be ascertained that employer-employee
relationship no longer exists, the case, whether accompanied by an allegation of
illegal dismissal, shall immediately be endorsed by the Regional Director to the
appropriate branch of the National Labor Relations Commission (NLRC).
In the recent case of Bay Haven, Inc. v. Abuan, 1 6 this Court recognized the rst
situation and accordingly ruled that a complainant's allegation of his illegal dismissal
had deprived the DOLE of jurisdiction as per Article 217 of the Labor Code. 1 7
In the rst situation, the claim has to be referred to the NLRC because it is the
NLRC which has jurisdiction in view of the termination of the employer-employee
relationship. The same procedure has to be followed in the second situation since it is
the NLRC that has jurisdiction in view of the absence of employer-employee
relationship between the evidentiary parties from the start.
Clearly the law accords a prerogative to the NLRC over the claim when the
employer-employee relationship has terminated or such relationship has not arisen at
all. The reason is obvious. In the second situation especially, the existence of an
employer-employee relationship is a matter which is not easily determinable from an
ordinary inspection, necessarily so, because the elements of such a relationship are not
veri able from a mere ocular examination. The intricacies and implications of an
employer-employee relationship demand that the level of scrutiny should be far above
the cursory and the mechanical. While documents, particularly documents found in the
employer's office are the primary source materials, what may prove decisive are factors
related to the history of the employer's business operations, its current state as well as
accepted contemporary practices in the industry. More often than not, the question of
employer-employee relationship becomes a battle of evidence, the determination of
which should be comprehensive and intensive and therefore best left to the specialized
quasi-judicial body that is the NLRC. HCTAEc
It can be assumed that the DOLE in the exercise of its visitorial and
enforcement power somehow has to make a determination of the existence
of an employer-employee relationship. Such prerogatival determination,
however, cannot be coextensive with the visitorial and enforcement power
itself. Indeed, such determination is merely preliminary, incidental and
collateral to the DOLE's primary function of enforcing labor standards
provisions. The determination of the existence of employer-employee
relationship is still primarily lodged with the NLRC. This is the meaning of the
clause "in cases where the relationship of employer-employee still exists" in
Art. 128 (b).
Thus, before the DOLE may exercise its powers under Article 128, two important
questions must be resolved: (1) Does the employer-employee relationship still exist, or
alternatively, was there ever an employer-employee relationship to speak of; and (2) Are
there violations of the Labor Code or of any labor law?
The existence of an employer-employee relationship is a statutory
prerequisite to and a limitation on the power of the Secretary of Labor, one
which the legislative branch is entitled to impose. The rationale underlying this
limitation is to eliminate the prospect of competing conclusions of the Secretary of
Labor and the NLRC, on a matter fraught with questions of fact and law, which is best
resolved by the quasi-judicial body, which is the NLRC, rather than an administrative
of cial of the executive branch of the government. If the Secretary of Labor proceeds
to exercise his visitorial and enforcement powers absent the rst requisite, as the
dissent proposes, his of ce confers jurisdiction on itself which it cannot otherwise
acquire.
The approach suggested by the dissent is frowned upon by common law. To wit:
[I]t is a general rule, that no court of limited jurisdiction can give itself
jurisdiction by a wrong decision on a point collateral to the merits of
the case upon which the limit to its jurisdiction depends ; and however its
decision may be nal on all particulars, making up together that subject matter
which, if true, is within its jurisdiction, and however necessary in many cases it
may be for it to make a preliminary inquiry, whether some collateral matter be or
be not within the limits, yet, upon this preliminary question, its decision must
always be open to inquiry in the superior court. 1 8
cHDaEI
A more liberal interpretative mode, "pragmatic or functional analysis", has also

emerged in ascertaining the jurisdictional boundaries of administrative agencies whose
jurisdiction is established by statute. Under this approach, the Court examines the
intended function of the tribunal and decides whether a particular provision falls within
or outside that function, rather than making the provision itself the determining
centerpiece of the analysis. 1 9 Yet even under this more expansive approach, the
dissent fails.
A reading of Art. 128 of the Labor Code reveals that the Secretary of Labor or his
authorized representatives was granted visitorial and enforcement powers for the
purpose of determining violations of, and enforcing, the Labor Code and any labor law,
wage order, or rules and regulations issued pursuant thereto. Necessarily, the actual
existence of an employer-employee relationship affects the complexion of the putative
ndings that the Secretary of Labor may determine, since employees are entitled to a
different set of rights under the Labor Code from the employer as opposed to non-
employees. Among these differentiated rights are those accorded by the "labor
standards" provisions of the Labor Code, which the Secretary of Labor is mandated to
enforce. If there is no employer-employee relationship in the rst place, the duty of the
employer to adhere to those labor standards with respect to the non-employees is
questionable. TDCAIS
This decision should not be considered as placing an undue burden on the

Secretary of Labor in the exercise of visitorial and enforcement powers, nor seen as an
unprecedented diminution of the same, but rather a recognition of the statutory
limitations thereon. A mere assertion of absence of employer-employee relationship
does not deprive the DOLE of jurisdiction over the claim under Article 128 of the Labor
Code. At least a prima facie showing of such absence of relationship, as in this case, is
needed to preclude the DOLE from the exercise of its power. The Secretary of Labor
would not have been precluded from exercising the powers under Article 128 (b) over
petitioner if another person with better-grounded claim of employment than that which
respondent had. Respondent, especially if he were an employee, could have very well
enjoined other employees to complain with the DOLE, and, at the same time, petitioner
could ill-afford to disclaim an employment relationship with all of the people under its
aegis.
Without a doubt, petitioner, since the inception of this case had been consistent
in maintaining that respondent is not its employee. Certainly, a preliminary
determination, based on the evidence offered, and noted by the Labor Inspector during
the inspection as well as submitted during the proceedings before the Regional
Director puts in genuine doubt the existence of employer-employee relationship. From
that point on, the prudent recourse on the part of the DOLE should have been to refer
respondent to the NLRC for the proper dispensation of his claims. Furthermore, as
discussed earlier, even the evidence relied on by the Regional Director in his order are
mere self-serving declarations of respondent, and hence cannot be relied upon as proof
of employer-employee relationship. HCacTI
III.
Aside from lack of jurisdiction, there is another cogent reason to set aside the
Regional Director's 27 February 2004 Order. A careful study of the case reveals that the
said Order, which found respondent as an employee of petitioner and directed the
payment of respondent's money claims, is not supported by substantial evidence, and
was even made in disregard of the evidence on record.
It is not enough that the evidence be simply considered. The standard is
substantial evidence as in all other quasi-judicial agencies. The standard employed in
the last sentence of Article 128 (b) of the Labor Code that the documentary proofs be
"considered in the course of inspection" does not apply. It applies only to issues other
than the fundamental issue of existence of employer-employee relationship. A contrary
rule would lead to controversies on the part of labor of cials in resolving the issue of
employer-employee relationship. The onset of arbitrariness is the advent of denial of
substantive due process.
As a general rule, the Supreme Court is not a trier of facts. This applies with
greater force in cases before quasi-judicial agencies whose ndings of fact are
accorded great respect and even nality. To be sure, the same ndings should be
supported by substantial evidence from which the said tribunals can make its own
independent evaluation of the facts. Likewise, it must not be rendered with grave abuse
of discretion; otherwise, this Court will not uphold the tribunals' conclusion. 2 0 In the
same manner, this Court will not hesitate to set aside the labor tribunal's ndings of
fact when it is clearly shown that they were arrived at arbitrarily or in disregard of the
evidence on record or when there is showing of fraud or error of law. 2 1
At the onset, it is the Court's considered view that the existence of employer-
employee relationship could have been easily resolved, or at least prima facie
determined by the labor inspector, during the inspection by looking at the records of
petitioner which can be found in the work premises. Nevertheless, even if the labor
inspector had noted petitioner's manifestation and documents in the Notice of
Inspection Results, it is clear that he did not give much credence to said evidence, as he
did not nd the need to investigate the matter further. Considering that the documents
shown by petitioner, namely: cash vouchers, checks and statements of account,
summary billings evidencing payment to the alleged real employer of respondent,
letter-contracts denominated as "Employment for a Speci c Undertaking", prima facie
negate the existence of employer-employee relationship, the labor inspector could have
exerted a bit more effort and looked into petitioner's payroll, for example, or its roll of
employees, or interviewed other employees in the premises. After all, the labor
inspector, as a labor regulation of cer is given "access to employer's records and
premises at any time of day or night whenever work is being undertaken therein, and the
right to copy therefrom, to question any employee and investigate any fact, condition or
matter which may be necessary to determine violations or which may aid in the
enforcement of this Code and of any labor law, wage order or rules and regulations
pursuant thereto." 2 2 Despite these far-reaching powers of labor regulation of cers,
records reveal that no additional efforts were exerted in the course of the inspection.
EHcaDT

The Court further examined the records and discovered to its dismay that even
the Regional Director turned a blind eye to the evidence presented by petitioner and
relied instead on the self-serving claims of respondent.
In his position paper, respondent claimed that he was hired by petitioner in
September 1996 as a radio talent/spinner, working from 8:00 am until 5 p.m., six days a
week, on a gross rate of P60.00 per script, earning an average of P15,0000.00 * per
month, payable on a semi-monthly basis. He added that the payment of wages was
delayed; that he was not given any service incentive leave or its monetary commutation,
or his 13th month pay; and that he was not made a member of the Social Security
System (SSS), Pag-Ibig and PhilHealth. By January 2001, the number of radio programs
of which respondent was a talent/spinner was reduced, resulting in the reduction of his
monthly income from P15,000.00 to only P4,000.00, an amount he could barely live on.
Anent the claim of petitioner that no employer-employee relationship ever existed,
respondent argued that that he was hired by petitioner, his wages were paid under the
payroll of the latter, he was under the control of petitioner and its agents, and it was
petitioner who had the power to dismiss him from his employment. 2 3 In support of his
position paper, respondent attached a photocopy of an identi cation card purportedly
issued by petitioner, bearing respondent's picture and name with the designation
"Spinner"; at the back of the I.D., the following is written: "This certi es that the card
holder is a duly Authorized MEDIA Representative of BOMBO RADYO PHILIPPINES . . .
THE NO. 1 Radio Network in the Country ***BASTA RADYO BOMBO***" 2 4 Respondent
likewise included a Certification which reads: TcEAIH
This is to certify that MR. JANDELEON JUEZAN is a program employee of

PEOPLE'S BROADCASTING SERVICES, INC. (DYMF-Bombo Radyo Cebu) since
1990 up to the present.
Furtherly certi es that Mr. Juezan is receiving a monthly salary of FIFTEEN
THOUSAND (P15,000.00) PESOS.
This certi cation is issued upon the request of the above stated name to
substantiate loan requirement.
Given this 18th day of April 2000, Cebu City, Philippines.
(signed) GREMAN B. SOLANTE
Station Manager
On the other hand, petitioner maintained in its position paper that respondent
had never been its employee. Attached as annexes to its position paper are
photocopies of cash vouchers it issued to drama producers, as well as letters of
employment captioned "Employment for a Speci c Undertaking", wherein respondent
was appointed by different drama directors as spinner/narrator for speci c radio
programs. 2 5
In his Order, the Regional Director merely made a passing remark on petitioner's
claim of lack of employer-employee relationship a token paragraph and proceeded
to a detailed recitation of respondent's allegations. The documents introduced by
petitioner in its position paper and even those presented during the inspection were not
given an iota of credibility. Instead, full recognition and acceptance was accorded to
the claims of respondent from the hours of work to his monthly salary, to his alleged
actual duties, as well as to his alleged "evidence". In fact, the ndings are anchored
almost verbatim on the self-serving allegations of respondent.
Furthermore, respondent's pieces of evidence the identi cation card and the
certi cation issued by petitioner's Greman Solante are not even determinative of an
employer-employee relationship. The certi cation, issued upon the request of
respondent, speci cally stated that "MR. JANDELEON JUEZAN is a program employee
of PEOPLE'S BROADCASTING SERVICES, INC. (DYMF-Bombo Radyo Cebu)", it is not
therefore "crystal clear that complainant is a station employee rather than a program
employee hence entitled to all the bene ts appurtenant thereto", 2 6 as found by the
DOLE Regional Director. Respondent should be bound by his own evidence. Moreover,
the classi cation as to whether one is a "station employee" and "program employee", as
lifted from Policy Instruction No. 40, 2 7 dividing the workers in the broadcast industry
into only two groups is not binding on this Court, especially when the classi cation has
no basis either in law or in fact. 2 8
Even the identi cation card purportedly issued by petitioner is not proof of
employer-employee relationship since it only identi ed respondent as an "Authorized
Representative of Bombo Radyo . . . ", and not as an employee. The phrase gains
significance when compared vis a vis the following notation in the sample identi cation
cards presented by petitioner in its motion for reconsideration:
1. This is to certify that the person whose picture and signature appear
hereon is an employee of Bombo Radio Philippines.
2. This ID must be worn at all times within Bombo Radyo Philippines
premises for proper identi cation and security. Furthermore, this is the
property of Bombo Radyo Philippines and must be surrendered upon
separation from the company. cCAIES
HUMAN RESOURCE DEPARTMENT

(Signed) JENALIN D. PALER
HRD HEAD
Respondent tried to address the discrepancy between his identi cation card and
the standard identi cation cards issued by petitioner to its employees by arguing that
what he annexed to his position paper was the old identi cation card issued to him by
petitioner. He then presented a photocopy of another "old" identi cation card, this time
purportedly issued to one of the employees who was issued the new identi cation card
presented by petitioner. 2 9 Respondent's argument does not convince. If it were true
that he is an employee of petitioner, he would have been issued a new identi cation
card similar to the ones presented by petitioner, and he should have presented a copy
of such new identi cation card. His failure to show a new identi cation card merely
demonstrates that what he has is only his "Media" ID, which does not constitute proof
of his employment with petitioner. caHIAS
It has long been established that in administrative and quasi-judicial proceedings,

substantial evidence is suf cient as a basis for judgment on the existence of employer-
employee relationship. Substantial evidence, which is the quantum of proof required in
labor cases, is "that amount of relevant evidence which a reasonable mind might accept
as adequate to justify a conclusion". 3 0 No particular form of evidence is required to
prove the existence of such employer-employee relationship. Any competent and
relevant evidence to prove the relationship may be admitted. 3 1 Hence, while no
particular form of evidence is required, a nding that such relationship exists must still
rest on some substantial evidence. Moreover, the substantiality of the evidence
depends on its quantitative as well as its qualitative aspects. 3 2
In the instant case, save for respondent's self-serving allegations and self-
defeating evidence, there is no substantial basis to warrant the Regional Director's
nding that respondent is an employee of petitioner. Interestingly, the Order of the
Secretary of Labor denying petitioner's appeal dated 27 January 2005, as well as the
decision of the Court of Appeals dismissing the petition for certiorari, are silent on the
issue of the existence of an employer-employee relationship, which further suggests
that no real and proper determination the existence of such relationship was ever made
by these tribunals. Even the dissent skirted away from the issue of the existence of
employer-employee relationship and conveniently ignored the dearth of evidence
presented by respondent. AaEDcS
Although substantial evidence is not a function of quantity but rather of quality,

the peculiar environmental circumstances of the instant case demand that something
more should have been proffered. 3 3 Had there been other proofs of employment, such
as respondent's inclusion in petitioner's payroll, or a clear exercise of control, the Court
would have af rmed the nding of employer-employee relationship. The Regional
Director, therefore, committed grievous error in ordering petitioner to answer for
respondent's claims. Moreover, with the conclusion that no employer-employee
relationship has ever existed between petitioner and respondent, it is crystal-clear that
the DOLE Regional Director had no jurisdiction over respondent's complaint. Thus, the
improvident exercise of power by the Secretary of Labor and the Regional Director
behooves the court to subject their actions for review and to invalidate all the
subsequent orders they issued.
IV.
The records show that petitioner's appeal was denied because it had allegedly
failed to post a cash or surety bond. What it attached instead to its appeal was the
Letter Agreement 3 4 executed by petitioner and its bank, the cash voucher, 3 5 and the
Deed of Assignment of Bank Deposits. 3 6 According to the DOLE, these documents do
not constitute the cash or surety bond contemplated by law; thus, it is as if no cash or
surety bond was posted when it filed its appeal.
The Court does not agree.
The provision on appeals from the DOLE Regional Of ces to the DOLE Secretary
is in the last paragraph of Art. 128 (b) of the Labor Code, which reads:
An order issued by the duly authorized representative of the Secretary of Labor
and Employment under this article may be appealed to the latter. In case said
order involves a monetary award, an appeal by the employer may be
perfected only upon the posting of a cash or surety bond issued by a
reputable bonding company duly accredited by the Secretary of Labor
and Employment in the amount equivalent to the monetary award in the
order appealed from. (emphasis supplied) SDATEc
While the requirements for perfecting an appeal must be strictly followed as they
are considered indispensable interdictions against needless delays and for orderly
discharge of judicial business, the law does admit exceptions when warranted by the
circumstances. Technicality should not be allowed to stand in the way of equitably and
completely resolving the rights and obligations of the parties. 3 7 Thus, in some cases,
the bond requirement on appeals involving monetary awards had been relaxed, such as
when (i) there was substantial compliance with the Rules; (ii) the surrounding facts and
circumstances constitute meritorious ground to reduce the bond; (iii) a liberal
interpretation of the requirement of an appeal bond would serve the desired objective
of resolving controversies on the merits; or (iv) the appellants, at the very least
exhibited their willingness and/or good faith by posting a partial bond during the
reglementary period. 3 8
A review of the documents submitted by petitioner is called for to determine

whether they should have been admitted as or in lieu of the surety or cash bond to
sustain the appeal and serve the ends of substantial justice.
The Deed of Assignment reads:
DEED OF ASSIGNMENT OF BANK DEPOSIT
WITH SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That I, GREMAN B. SOLANTE in my capacity as Station Manager of DYMF Cebu
City, PEOPLE'S BROADCASTING SERVICES, INC., a corporation duly authorized
and existing under and by virtue of the laws of the Philippines, for and in
consideration of the sum of PESOS: TWO HUNDRED THREE THOUSAND SEVEN
HUNDRED TWENTY SIX PESOS & 30/100 ONLY (P203,726.30) Phil. Currency, as
CASH BOND GUARANTEE for the monetary award in favor to the Plaintiff in the
Labor Case docketed as LSED Case No. R0700-2003-09-CI-09, now pending
appeal. SHECcD
That Respondent-Appellant do hereby undertake to guarantee available and

suf cient funds covered by Platinum Savings Deposit (PSD) No. 010-8-00038-4
of PEOPLE'S BROADCASTING SERVICES, INC. in the amount of PESOS: TWO
HUNDRED THREE THOUSAND SEVEN HUNDRED TWENTY SIX PESOS & 30/100
ONLY (P203,726.30) payable to Plaintiff-Appellee/Department of Labor and
Employment Regional Of ce VII at Queen City Development Bank, Cebu Branch,
Sanciangko St. Cebu City.
It is understood that the said bank has the full control of Platinum Savings
Deposit (PSD) No. 010-8-00038-4 from and after this date and that said sum
cannot be withdrawn by the Plaintiff-Appellee/Department of Labor and
Employment Regional Of ce VII until such time that a Writ of Execution shall be
ordered by the Appellate Office.
FURTHER, this Deed of Assignment is limited to the principal amount of PESOS:
TWO HUNDRED THREE THOUSAND SEVEN HUNDRED TWENTY SIX PESOS &
30/100 ONLY (P203,726.30) Phil. Currency, therefore, any interest to be earned
from the said Deposit will be for the account holder.
cAaTED
IN WITNESS WHEREOF, I have hereunto af xed my signature this 18th day if *

June, 2004, in the City of Cebu, Philippines.
PEOPLE'S BROADCASTING SERVICES, INC.
By:
(Signed) GREMAN B. SOLANTE
Station Manager
As priorly mentioned, the Deed of Assignment was accompanied by a Letter

Agreement between Queen City Development Bank and petitioner concerning Platinum
Savings Deposit (PSD) No. 010-8-00038-4, 3 9 and a Cash Voucher issued by petitioner
showing the amount of P203,726.30 deposited at the said bank. ECcDAH
Casting aside the technical imprecision and inaptness of words that mark the
three documents, a liberal reading reveals the documents petitioner did assign, as cash
bond for the monetary award in favor of respondent in LSED Case No. RO700-2003-CI-
09, the amount of P203,726.30 covered by petitioner's PSD Account No. 010-8-00038-
4 with the Queen City Development Bank at Sanciangko St. Cebu City, with the
depositary bank authorized to remit the amount to, and upon withdrawal by respondent
and or the Department of Labor and Employment Regional Of ce VII, on the basis of
the proper writ of execution. The Court nds that the Deed of Assignment constitutes
substantial compliance with the bond requirement.
The purpose of an appeal bond is to ensure, during the period of appeal, against
any occurrence that would defeat or diminish recovery by the aggrieved employees
under the judgment if subsequently af rmed. 4 0 The Deed of Assignment in the instant
case, like a cash or surety bond, serves the same purpose. First, the Deed of
Assignment constitutes not just a partial amount, but rather the entire award in the
appealed Order. Second, it is clear from the Deed of Assignment that the entire amount
is under the full control of the bank, and not of petitioner, and is in fact payable to the
DOLE Regional Of ce, to be withdrawn by the same of ce after it had issued a writ of
execution. For all intents and purposes, the Deed of Assignment in tandem with the
Letter Agreement and Cash Voucher is as good as cash. Third, the Court nds that the
execution of the Deed of Assignment, the Letter Agreement and the Cash Voucher were
made in good faith, and constituted clear manifestation of petitioner's willingness to
pay the judgment amount.
The Deed of Assignment must be distinguished from the type of bank
certi cation submitted by appellants in Cordova v. Keysa's Boutique, 4 1 wherein this
Court found that such bank certi cation did not come close to the cash or surety bond
required by law. The bank certi cation in Cordova merely stated that the employer
maintains a depository account with a balance of P23,008.19, and that the certi cation
was issued upon the depositor's request for whatever legal purposes it may serve.
There was no indication that the said deposit was made speci cally for the pending
appeal, as in the instant case. Thus, the Court ruled that the bank certi cation had not in
any way ensured that the award would be paid should the appeal fail. Neither was the
appellee in the case prevented from making withdrawals from the savings account.
Finally, the amount deposited was measly compared to the total monetary award in the
judgment. 4 2 aEHADT
V.
Another question of technicality was posed against the instant petition in the
hope that it would not be given due course. Respondent asserts that petitioner pursued
the wrong mode of appeal and thus the instant petition must be dismissed. Once more,
the Court is not convinced.
A petition for certiorari is the proper remedy when any tribunal, board or of cer
exercising judicial or quasi-judicial functions has acted without or in excess of its
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction and there is no appeal, nor any plain speedy, and adequate remedy at law.
There is "grave abuse of discretion" when respondent acts in a capricious or whimsical
manner in the exercise of its judgment as to be equivalent to lack of jurisdiction. 4 3
CScTED

Respondent may have a point in asserting that in this case a Rule 65 petition is a
wrong mode of appeal, as indeed the writ of certiorari is an extraordinary remedy, and
certiorari jurisdiction is not to be equated with appellate jurisdiction. Nevertheless, it is
settled, as a general proposition, that the availability of an appeal does not foreclose
recourse to the extraordinary remedies, such as certiorari and prohibition, where appeal
is not adequate or equally bene cial, speedy and suf cient, as where the orders of the
trial court were issued in excess of or without jurisdiction, or there is need to promptly
relieve the aggrieved party from the injurious effects of the acts of an inferior court or
tribunal, e.g., the court has authorized execution of the judgment. 4 4 This Court has even
recognized that a recourse to certiorari is proper not only where there is a clear
deprivation of petitioner's fundamental right to due process, but so also where other
special circumstances warrant immediate and more direct action. 4 5
In one case, it was held that the extraordinary writ of certiorari will lie if it is
satisfactorily established that the tribunal acted capriciously and whimsically in total
disregard of evidence material to or even decisive of the controversy, 4 6 and if it is
shown that the refusal to allow a Rule 65 petition would result in the in iction of an
injustice on a party by a judgment that evidently was rendered whimsically and
capriciously, ignoring and disregarding uncontroverted facts and familiar legal
principles without any valid cause whatsoever. 4 7
It must be remembered that a wide breadth of discretion is granted a court of
justice in certiorari proceedings. 4 8 The Court has not too infrequently given due course
to a petition for certiorari, even when the proper remedy would have been an appeal,
where valid and compelling considerations would warrant such a recourse. 4 9
Moreover, the Court allowed a Rule 65 petition, despite the availability of plain, speedy
or adequate remedy, in view of the importance of the issues raised therein. 5 0 The rules
were also relaxed by the Court after considering the public interest involved in the case;
5 1 when public welfare and the advancement of public policy dictates; when the
broader interest of justice so requires; when the writs issued are null and void; or when
the questioned order amounts to an oppressive exercise of judicial authority. 5 2
"The peculiar circumstances of this case warrant, as we held in Republic v. Court
of Appeals, 107 SCRA 504, 524, the 'exercise once more of our exclusive prerogative to
suspend our own rules or to exempt a particular case from its operation as in . .
Republic of the Philippines v. Court of Appeals, et al., (83 SCRA 453, 478-480 [1978]),
thus: '. . . The Rules have been drafted with the primary objective of enhancing fair trials
and expediting justice. As a corollary, if their applications and operation tend to subvert
and defeat instead of promote and enhance it, their suspension is justified." 5 3 aTcIAS
The Regional Director fully relied on the self-serving allegations of respondent

and misinterpreted the documents presented as evidence by respondent. To make
matters worse, DOLE denied petitioner's appeal based solely on petitioner's alleged
failure to le a cash or surety bond, without any discussion on the merits of the case.
Since the petition for certiorari before the Court of Appeals sought the reversal of the
two aforesaid orders, the appellate court necessarily had to examine the evidence anew
to determine whether the conclusions of the DOLE were supported by the evidence
presented. It appears, however, that the Court of Appeals did not even review the
assailed orders and focused instead on a general discussion of due process and the
jurisdiction of the Regional Director. Had the appellate court truly reviewed the records
of the case, it would have seen that there existed valid and suf cient grounds for
nding grave abuse of discretion on the part of the DOLE Secretary as well the Regional
Director. In ruling and acting as it did, the Court nds that the Court of Appeals may be
properly subjected to its certiorari jurisdiction. After all, this Court has previously ruled
that the extraordinary writ of certiorari will lie if it is satisfactorily established that the
tribunal had acted capriciously and whimsically in total disregard of evidence material
to or even decisive of the controversy. 5 4
The most important consideration for the allowance of the instant
petition is the opportunity for the Court not only to set the demarcation
between the NLRC's jurisdiction and the DOLE's prerogative but also the
procedure when the case involves the fundamental challenge on the DOLE's
prerogative based on lack of employer-employee relationship. As
exhaustively discussed here, the DOLE's prerogative hinges on the existence
of employer-employee relationship, the issue is which is at the very heart of
this case. And the evidence clearly indicates private respondent has never
been petitioner's employee. But the DOLE did not address, while the Court of
Appeals glossed over, the issue. The peremptory dismissal of the instant
petition on a technicality would deprive the Court of the opportunity to
resolve the novel controversy. SECHIA
WHEREFORE, the petition is GRANTED. The Decision dated 26 October 2006 and
the Resolution dated 26 June 2007 of the Court of Appeals in C.A. G.R. CEB-SP No.
00855 are REVERSED and SET ASIDE. The Order of the then Acting Secretary of the
Department of Labor and Employment dated 27 January 2005 denying petitioner's
appeal, and the Orders of the Director, DOLE Regional Of ce No. VII, dated 24 May
2004 and 27 February 2004, respectively, are ANNULLED. The complaint against
petitioner is DISMISSED.
SO ORDERED.
Velasco, Jr., J., concurs.
Carpio Morales * , J., joins the dissent of J. Brion. Please see my Separate Dissenting.
Leonardo-de Castro ** , J., concurs in the result.
Brion, J., dissents.
Separate Opinions
CARPIO MORALES , J., dissenting :
I join the dissent of Justice Arturo Brion in pointing out the obvious: the petition
is wrecked beyond salvage.
The course taken by the ponencia leads labor cases to the iceberg of protracted
proceedings and unsecured execution. Unless the ponencia can justify the
consequential ripples resulting from the decision that could place the whole vessel of
labor rights in distress, I am constrained to drop an anchor to keep it at bay. I could not
thus join the majority in charting such troubled sea.
I Join Justice Brion in his observation that the ponencia bends over beyond the
law's breaking point in order to accommodate the recti cation of a perceived error.
Methinks the ponencia was too willing to give up the stability of settled doctrines like
the proper mode of appeal, due process in administrative proceedings, requirement of
an appeal bond, all for a porridge of "genuine doubt" in one factual nding which in this
case was resolved by all public respondents 1 in favor of labor. There is, therefore, utter
lack of justi cation for this Court to excuse petitioner from hurdling the basic
preliminary requirements of the remedies.
Let me add a few points for the further illumination of the principal issue on the
exercise of the visitorial and enforcement power of the Labor Secretary under Article
128 (b) of the Labor Code, as amended by Republic Act No. 7730 which legislated the
expanded power of the Labor Secretary.
In complaints such as that led by private respondent for illegal deduction, non-
payment of service incentive leave, 13th month pay, premium pay for holiday and rest
day, illegal diminution of bene ts, delayed payment of wages, and non-coverage of SSS,
Pag-ibig and Philhealth, it becomes commonly convenient for the employer to
immediately raise the defense of the absence of an employer-employee relationship. ECcTaH
Although the ponencia concedes that the Labor Secretary is empowered to

preliminarily determine the presence or absence of an employer-employee relationship,
it is quick to add that such preliminary determination may be clipped by a mere prima
facie showing of the absence of an employer-employee relationship. This position,
however, effectively dilutes the expanded power emanating from the spirit of the
amendatory law, for it limits the exercise of the visitorial and enforcement power to
cases where the relationship of employer-employee is not contested. In such scenario,
the employer could, by a quantum of proof lower than substantial evidence, oust the
Labor Secretary of jurisdiction and have the case thrown to the more tedious and
docket-clogged process of arbitration.
Justice Brion correctly opines that the Labor Secretary or his authorized
representative is competent to fully determine whether an employer-employee
relationship exists, which, in turn, must "always be open to inquiry in the superior court",
as proffered this time by the ponente, subject only, of course, to the usual conditions
for the availment of the remedy.
Justice Brion offers an incisive and comparative analysis between the original
version of Article 128 (b) of the Labor Code and the amendment introduced by Republic
Act No. 7730. The changes in the phraseology and sequencing of the excepting clause
are de nitely not inconsequential. Of course, the removal of the P5,000 ceiling in the
exercise of the visitorial power is already settled by jurisprudence.
Notatu dignum is that the clause "issues which cannot be resolved without
considering the evidentiary matters that are not veri able in the normal course of
inspection" was already replaced by "issues supported by documentary proofs which
were not considered in the course of inspection", not to mention the change in
antecedent such that the clause previously referred to the enumerated powers but now
only refers to the issuance of the writ of execution. Despite the change in the statute,
current jurisprudence still relies on the rules and regulations implementing the old
Article 128 (b) and still echoes the outmoded cases applying the old Article 128 (b). It
is highly opportune for the Court to modify this antiquated doctrine and principle in
view of the amendment of Article 128 (b) of the Labor Code.
I, therefore, vote to dismiss the petition.
BRION, J., dissenting :
I dissent and vote for the dismissal of the petition.

This case originated from a Department of Labor and Employment (DOLE)
inspection conducted pursuant to Article 128 of the Labor Code. 1 The DOLE Regional
Director (Director), the DOLE Secretary (Secretary), and the Court of Appeals (CA)
consistently ruled that an employer-employee relationship existed between petitioner
Bombo Radyo and the respondent, and that the petitioner is liable for the payment of
the respondent's monetary claims. The ponencia, repetitively bending over
backwards, reverses all these rulings and holds that the result should be otherwise. cHCaIE
I. Grounds for Dissent.

I vote to dismiss the petition for the following reasons:
1. The petitioner chose the wrong recourse in seeking the review by this
Court of the CA's decision on the petitioner's Rule 65 petition for certiorari; the
petitioner came to us via another petition for certiorari under Rule 65 when the
appropriate mode is a petition for review on certiorari under Rule 45. The ponencia
bends over backwards to accommodate Bombo Radyo's legally erroneous
petition to open the way for its review of the administrative (DOLE) decisions
and the support the CA gave these decisions.
2. The Director originally ordered the payment of the respondent's monetary
claim in his Order of February 27, 2004.
a. The petitioner was given all the opportunity to present evidence to
oppose the Labor Inspector's ndings; hence, it cannot plead lack of
due process for lack of opportunity to be heard.
b. The Director duly considered the evidence on the issue of employer-
employee relationship in both his initial decision 2 and in his resolution
of May 24, 2004. 3 The ponencia, nitpicking the Director's
decision for not stating how each piece of evidence was ruled
upon, charges that the decision disregarded the petitioner's
evidence. This stance ignores the legal reality that the
Constitution only requires the factual and legal bases for the
decision to be stated, 4 and that the decision maker is not
under any obligation to state in its decision every fact and bit
of evidence the parties submitted. 5
c. The nature of the proceedings, level of evidence required, and level of
expertise between Labor Arbiters and the Regional Director are not
different and one tribunal holds no primacy over the other in the
determination of the employment relationship issue. The terms and
structure of Article 128(b), as amended by R.A. 7730, are
clear and need not give rise to the ponencia's fear of
confusion in determining the employment relationship issue.
3. The Secretary has expanded visitorial and enforcement powers under
Article 128 of the Labor Code, as amended by R.A. 7730; 6 he or his representative has
full authority under the amended Article 128 to determine whether employer-employee
relationship exists.
4. Article 128 of the Labor Code clearly provides that an appeal is perfected
"only" by the posting of cash or surety bond; the Deed of Assignment the petitioner
submitted to the DOLE is neither a cash nor a surety bond, and the Secretary correctly
dismissed the petitioner's appeal because it was not duly perfected. The ponencia
bends over beyond the law's breaking point to admit the petitioner's appeal
despite its infirmity under the clear terms and intent of the law.
a. The Secretary fully explained the reasons for the non-perfection of
appeal in an original Order dated January 29, 2005 and in her
subsequent Order dated May 23, 2005 on the petitioner's motion for
reconsideration. The ponencia sees not only legal error but
grave abuse of discretion although the Secretary followed the
letter and intent of the law, as plainly stated in the law itself
and as interpreted by this Court in its rulings.
b. Petitioners have only themselves to blame for their lost appeal to the
Labor Secretary for their failure to post the required bond for the
perfection of their appeal.
c. The Director's Order lapsed to nality when the petitioner failed to
perfect its appeal to the DOLE Secretary. The ponencia digs deep
into this Court's review power, effectively bending
established rules and jurisprudence, to reach and nullify the
effects of this first level decision.
5. The Court of Appeals correctly dismissed the petitioner's petition for
certiorari for lack of merit. aEHIDT
a. The CA cannot be wrong when it refused to recognize that no grave

abuse of discretion attended the Secretary's dismissal of an appeal
that was never perfected based on the letter and intent of the law;
b. The CA cannot be wrong in its conclusion that no violation of due
process attended the Director's ruling, as stated above;
c. The CA could not have ruled on other issues after it recognized that no
appeal was perfected and no abuse of discretion attended the
assailed decisions; likewise, it could not have recognized any legal
error on the part of the Secretary for not discussing other issues after
recognizing that the petitioner did not perfect its appeal.
6. The petitioner's evidence, at the most, established a doubt on the
employer-employee relationship issue, which doubt should be resolved in favor of the
respondent-worker. 7
II. Background
DOLE Regional Of ce No. VII conducted an inspection of the premises of the
petitioner resulting in an inspection report/recommendation ordering Bombo Radyo to
rectify/restitute, within ve (5) days from notice, the violation discovered during the
inspection. Radyo Bombo failed to undertake any recti cation so that a summary
investigation ensued where the parties were required to submit their respective
position papers. Radyo Bombo reiterated its position, made during inspection, that the
respondent was not an employee; he was a drama talent hired on a per drama
"participation basis". Both parties presented evidence in support of their respective
positions.
DOLE Director Rodolfo M. Sabulao, in an order dated February 27, 2004, required
Bombo Radyo to pay the respondent P203,726.30 in satisfaction of his money claims.
To directly cite the Director's ruling to avoid the ponencia's selectively chosen
presentation, we quote:
A careful perusal of the records of this case showed that complainant Jandeleon
Juezan was hired by the respondent as a radio talent/spinner and work six (6)
days a week from 8:00 A.M. to 5:00 P.M., Monday thru Saturday. It was the
respondent who paid complainant's salary every quincena and was required by
the former to sign payrolls. Notwithstanding the employment contract stipulating
herein complainant as a program employee, his actual duty pertains to that of a
station employee. Moreover, respondent failed to register said employment
contract with the Broadcast Media Counsel as required. He is required to observe
normal working hours that deductions are made for tardiness. Therefore, it is
crystal clear that complainant is a station employee rather than a program
employee hence entitled to all benefits appurtenant thereto.
In doing so, the Director upheld the existence of employer-employee

relationship between the broadcasting station and the respondent. Bombo
Radyo moved for reconsideration, attaching additional evidence to his motion, but the
Director denied the motion.
Bombo Radyo appealed to the DOLE Secretary, mainly contending that the
respondent was not its employee, pursuant to Rule X-A of the Implementing Rules of
the Labor Code 8 in relation with the Rules on Disposition of Labor Standards Cases in
the Regional Of ce. 9 The appeal was dismissed in an order dated January 27,
2005 by the Acting DOLE Secretary due to Bombo Radyo's failure to post a
cash or surety bond as required by Article 128 of the Labor Code. The
petitioner's next recourse was to go to the Court of Appeals (CA).
The petitioner led with the CA a petition for certiorari under Rule 65 of
the Rules of Court alleging grave abuse of discretion. The petition cited the following
grounds, which I quote for purposes of certainty
1. The public respondent committed grave abuse of discretion amounting to
lack or excess of jurisdiction when it denied due course to the petition;

lack or excess of jurisdiction when it assumed jurisdiction over the claim of
the private respondent even as under R.A. 6715 jurisdiction lies with the
NLRC, hence, clearly, the Honorable Secretary of Labor and Employment,
with due respect, committed errors of law;

lack or excess of jurisdiction when it dismissed the appeal by the
respondent without delving on the issues raised by the petitioner;
4. There is no appeal or any claim, speedy and adequate remedy in the
ordinary course of law available to the petitioner.
The CA duly considered the points raised, but ultimately dismissed the petition
for lack of merit. Petitioner now comes to the Court, again under Rule 65 of the
Rules of Court alleging the following grounds:
1. The Honorable Court of Appeals committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it rules that the Secretary
of Labor and Employment has jurisdiction over the claim of the private
respondent even as under R.A. 6715 jurisdiction over it lies with the NLRC,
hence, clearly, the Honorable Court Appeals committed errors of law.
amounting to lack or excess of jurisdiction when it upheld the Order of the
Secretary of Labor and Employment despite the patent lack of due
process.
amounting to lack or excess of jurisdiction when it dismissed the appeal
without delving on the issues raised by the petitioner. Its decision dated
October 26, 2006 did not even rule on the issue raised by the petition that
there is no employer-employee relationship between it and respondent
Juezan.
4. There is no appeal or any plain and adequate remedy in the ordinary
course of law available to the petition.
III. Discussion
These discussions address the above grounds for dissent, not necessarily in the
order posed above in light of the inter-relationships of these grounds with one another.
ITESAc
Propriety of a Rule 65 Petition for Certiorari

The ponencia justi es the grant of extraordinary treatment to the petitioner's
Rule 65 petition for certiorari: (1) by general statements, supported by cited
jurisprudence, on when a Rule 65 petition for certiorari may be admitted in lieu of the
Rule 45 petition for review on certiorari that is the required mode of review from a ruling
of the Court of Appeals; and (2) by urging a relaxation of the rules in view of the
attendant legal and factual circumstances of the present case. 1 0 It thereafter urges the
suspension of the applicable rule on mode of review, as follows:
The peculiar circumstances of this case warrant, as we held in Republic v. Court
of Appeals, 107 SCRA 504, 524, the exercise once more of our exclusive
prerogative to suspend our own rules or to exempt a particular case from its
operation as in . . . Republic of the Philippines v. Court of Appeals, et. al., (83
SCRA 453, 478-480 [1978]), thus: . . . the rules have been drafted with the primary
objective of enhancing fair trials and expediting justice. As corollary, if their
application and operation tend to subvert and defeat instead of promote and
enhance it, their suspension is justified.
With these general statements, as premises, the ponencia generally adverts to

the Regional Director's alleged irregular handling of the case and misinterpretation of
the respondent's documents; the DOLE Secretary's failure to discuss the merits of the
case after she found the appeal to have failed for failure to post the required bond; and
the alleged failure of the CA to examine the records and its focus on the discussion of
due process and the jurisdiction of the Regional Director.
Under these terms, the ponencia hopes to open the door for the admission of the
petition, thereby giving its imprimatur to the petitioner's claim that it resorted to a Rule
65 petition because it had no appeal, or any plain and adequate remedy in the ordinary
course of law.
I submit that the petitioner's wrong mode of appeal in coming to this Court
cannot be glossed over and simply hidden behind general statements made by this
Court in the context of the unique and appropriate factual settings of the cited cases,
generally applied to the ponencia's distorted view of the circumstances of this case.
The CA decision under review simply and plainly holds that the Secretary
committed no grave abuse of discretion when she dismissed an appeal that was
supported by neither a cash nor a surety bond that the law requires, and that the DOLE
Director did not violate the petitioner's right to due after it was given full and ample
hearing opportunities and its submitted evidence were considered and found wanting.
In fact, on its face, the petition for certiorari before the CA does not deserve any merit
as it simply hid behind the magic formula grave abuse of discretion amounting to
lack or excess of jurisdiction to justify a review of a decision that has lapsed to
nality for the petitioner's failure to perfect its appeal. Fully examined, what the petition
cites are really inconsequential grounds dismissible on their face or perceived errors of
law (as in fact the petition so states in its cited 2nd ground). 1 1
A comparison of the grounds cited in the present petition and the petition before
the CA shows that in coming to this Court, the petitioner simply repeated the same
issues it submitted to the Court of Appeals. The only difference is that it now cites the
CA as the tribunal committing the grave abuse of discretion amounting to lack or
excess of jurisdiction. In coming to this Court, on the same grounds cited before and
ruled upon by the CA, the petitioner is merely asking this Court to review the CA ruling
on the "grave abuse of discretion" issues the petitioner raised before the CA. Such a
review is an appeal that, under our Rules, should fall under Rule 45 a petition for
review on certiorari. It is not accurate therefore for the petitioner to say that there is no
remedy available to it in the ordinary course of law. Neither is it correct to characterize
this situation as an extraordinary one that merits the suspension of the Rules. The
appropriate remedy is a Rule 45 petition for review on certiorari which is envisioned to
correct errors of law, 1 2 precisely the errors cited by the petitioner as having been
committed by the CA.
Much harder to accept is the ponencia's cavalier attitude towards the petitioner's
statement that there is no appeal, or any plain and adequate remedy in the ordinary
course of law available to the petitioner, when a Rule 45 appeal is readily available to it
and would have been the proper course since it cited errors of law against the CA. By
accepting the present Rule 65 petition in place of a Rule 45 petition for review on
certiorari without any suf ciently demonstrated meritorious ground for exceptional
treatment, we are effectively negating our ruling in the recent Cecilia B. Estinozo v.
Court of Appeals, et al. 1 3 that a petition for review on certiorari under Rule 45 and a
petition for certiorari under Rule 65 are mutually exclusive.
The legal and factual circumstances the ponencia cites as justi catory reasons
are in fact the issues discussed in this case; for this reason, there need not be
discussed here for purposes of an orderly presentation, and will be fully discussed in
their proper places below suf ce it to say for now that the proceedings below were
conducted properly as the CA found. If there is anything extraordinary about this
case at this point, it is the lengths the ponencia has gone to bend over
backwards and justify the grant of the petition. It thus glosses over the
wrong mode of appeal to this Court and the petitioner's failure to perfect its
appeal to the DOLE Secretary, and even minutely analyzes the facts before
the Regional Director to show that the Regional Director's ruling is legally
incorrect. Finally, it grossly misinterprets Section 128 (b) of the Labor Code,
even citing an implementing rule that had been overtaken by the amendment
of the cited section of the Code, and, for the purpose, even cited the common
law.
I cite all these to stress that we should examine the ponencia carefully,
particularly its justi cations for the grant of extraordinary treatment to the petitioner,
before joining the ponencia.
The Secretary's Visitorial Powers
A major issue for the ponencia is the Director's determination that employer-
employee relationship existed between the petitioner and the respondent at the time of
the inspection. Citing mainly Section 3, Rule 11 of the Rules on the Disposition of Labor
Standards Cases, 1 4 the ponencia rationalizes: EDCTIa
The clause "in cases where the relationship of employer-employee still exists"
signi es that the employer-employee relationship must have existed even before
the emergence of the controversy. Necessarily, the DOLE's power does not
apply in two instances, namely: (a) where the employer-employee
relationship has ceased; and (b) where no such relationship has ever
existed.
The rst situation is categorically covered by Sec. 3, Rule 11 of the Rules on the
Disposition of Labor Standards Cases issued by the DOLE Secretary. It reads:
Sec. 3. Complaints where no employer-employee relationship actually
exists. Where employer-employee relationship no longer exists by reason of
the fact that it has already been severed, claims for payment of monetary
bene ts fall within the exclusive and original jurisdiction of the labor
arbiters. Accordingly, if on the face of the complaint, it can be ascertained
that employer-employee relationship no longer exists, the case, whether
accompanied by an allegation of illegal dismissal, shall immediately be
endorsed by the Regional Director to the appropriate branch of the National
Labor Relations Commission (NLRC).
xxx xxx xxx
In the rst situation, the claim has to be referred to the NLRC because it is the
NLRC which has jurisdiction in view of the termination of the employer-employee
relationship. The same procedure has to be followed in the second situation since
it is the NLRC that has jurisdiction in view of the absence of employer-employee
relationship between the evidentiary parties from the start.
Clearly the law accords a prerogative to the NLRC over the claim when the
employer-employee relationship has terminated or such relationship has not
arisen at all. The reason is obvious. In the second situation especially, the
existence of an employer-employee relationship is a matter which is not easily
determinable from an ordinary inspection, necessarily so, because the elements
of such a relationship are not veri able from a mere ocular examination. The
intricacies and implications of an employer-employee relationship demand that
the level of scrutiny should be far above the cursory and the mechanical. While
documents, particularly documents found in the employer's of ce are the primary
source materials, what may prove decisive are factors related to the history of the
employer's business operations, its current state as well as accepted
contemporary practices in the industry. More often than not, the question of
employer-employee relationship becomes a battle of evidence, the determination
of which should be comprehensive and intensive and therefore best left to the
specialized quasi-judicial body that is the NLRC.
It can be assumed that the DOLE in the exercise of its visitorial and
enforcement power somehow has to make a determination of the
existence of an employer-employee relationship. Such prerogatival
determination, however, cannot be coextensive with the visitorial and
enforcement power itself. Indeed, such determination of the existence
of employer-employee relationship is still primarily lodged with the
NLRC. This is the meaning of the clause "in cases where the
relationship of employer-employee still exists" in Art. 128 (b).
This approach is a legally incorrect due mainly to the ponencia's lack of

appreciation of the extent of the DOLE Secretary's visitorial and enforcement powers
under the Labor Code, as amended, and a mis-reading of the current law and the
applicable implementing rules. The present law gives the Secretary or his
representative the authority to fully determine whether employer-employee relationship
exists; only upon a showing that it does not, is the DOLE divested of jurisdiction over
the case.
In the rst place, the ponencia is xated on the application of the Rules on the
Disposition of Labor Standards Cases in the Regional Of ces which cannot now be
cited and used in their totality in light of the amendment of the Article 128 (b) by
Republic Act No. 7730. 1 5 Prior to the amendment, Section 128 (b) stated that
Art. 128(b). The provisions of Article 217 of this Code to the contrary
notwithstanding and in cases where the relationship of employer-employee still
exist, the Minister of Labor and Employment or his duly authorized
representatives shall have the power to order and administer, after due notice and
hearing, compliance with the labor standards provisions of this Code and other
labor legislation based on the ndings of labor relation of cers or industrial
safety engineers made in the course of inspection, and to issue writs of execution
to the appropriate authority for the enforcement of their orders, except in cases
where the employer contests the findings of the labor regulation officer and raises
issues which cannot be resolved without considering evidentiary matters that are
not verifiable in the normal course of inspection.
As amended, Section 128 (b) now states:

Art. 128. Visitorial and Enforcement Power.
(b) Notwithstanding the provisions of Articles 129 and 217 of this Code to the
contrary, and in cases where the relationship of employer-employee still exists, the
Secretary of Labor and Employment or his duly authorized representatives shall
have the power to issue compliance orders to give effect to the labor standards
provisions of this Code and other labor legislation based on the ndings of labor
employment and enforcement of cers or industrial safety engineers made in the
course of inspection. The Secretary or his duly authorized representatives shall
issue writs of execution to the appropriate authority for the enforcement of their
orders, except in cases where the employer contests the ndings of the labor
employment and enforcement of cer and raises issues supported by
documentary proofs which were not considered in the course of inspection.
order involves a monetary award, an appeal by the employer may be perfected
only upon the posting of a cash or surety bond issued by a reputable bonding
company duly accredited by the Secretary of Labor and Employment in the
amount equivalent to the monetary award in the order appealed from.
This amendment is critical in viewing the Secretary's visitorial and enforcement powers
as they introduced new features that expanded these powers, thereby affecting the
cited Rules as well as the process of referring an inspection case to the NLRC.
A rst distinction between the original and the amended Article 128 (b) is the
reference to Article 217 of the Labor Code in the "notwithstanding" clause. As amended,
Article 129 is also referred to. Read in relation with Article 217, the effect is the removal
of the P5,000.00 ceiling in the Secretary's visitorial powers a conclusion that the
ponencia fully supports.
Another distinction relates to the present clause "except in cases where the
employer contests the ndings of the labor employment and enforcement of cer and
raises issues supported by documentary proofs which were not considered in the
course of inspection" (the "excepting clause"). In the original version of Article 128(b),
this clause states "except in cases where the employer contests the ndings of the
labor regulation of cer and raises issues which cannot be resolved without considering
evidentiary matters that are not veri able in the normal course of inspection". Thus,
previously, the law referred to matters that the labor regulation of cer could not have
ruled upon because they are not veri able in the normal course of inspection. Under the
present formulation, reference is only to "documentary proofs which were not
considered in the course of inspection" used in a different context explained below.
Textually, the present formulation refers only to documentary evidence that might or
might not have been available during inspection but were not considered. CASaEc
The difference can be explained by the new and unique formulation of the whole
Article 128 (b). In the original provision, the visitorial and enforcement power of the
Minister of Labor and Employment generally prevailed over the jurisdiction over
arbitration cases granted to Labor Arbiters and the Commission under Article 217.
Excepted from this rule is what the original and unamended excepting clause, quoted
above, provides i.e., when inspection would not suf ce because of evidentiary
matters that have to be threshed out at an arbitration hearing.
The new and amended Article 128 (b) did not retain the formulation of the
original as it broke up the original version into two sentences. In the first
sentence, it recognized the primacy of the visitorial and enforcement powers of the
Secretary of Labor over the terms of Articles 129 and 217. In other words, the
Secretary or his delegate can inspect without being fettered by the limitations under
these provisions. The second sentence is devoted wholly to the issuance of writs of
execution to enforce the issued orders. It exists as an independent statement from
what the rst sentence states and is limited only by the exception when the employer
cites a documentary proof that was not considered during the inspection.
Thus, under the amended Article 128 (b), as written, the power of the Secretary of
Labor or his representative to enforce the labor standards provisions of the Labor Code
and other labor legislations has been vastly expanded, being unlimited by Articles 129
and 217 of the Labor Code, provided only that employer-employee relationship still
exists. The existence of the relationship, however, is still a matter for the Secretary or
the appropriate regional of ce to determine, unfettered by Articles 129 and 217 of the
Labor Code. The mere allegation whether prima facie or not that employer-
employee relationship exists, does not, by itself, divests the Regional Director of
jurisdiction to rule on the case; 1 6 the Director can at least fully determine whether or
not employer-employee relationship exists.
The present "excepting clause" (which refers only to the issuance of a writ
of execution ) suggests that after the labor employment of cer has issued its
inspection ruling, the Secretary may issue a writ to execute the ruling, unless the
employer "contests the ndings of the labor employment of cer and raises issues
supported by documentary evidence which were not considered in the course of
inspection." Stated otherwise, there is now a window in the law for immediate execution
pending appeal when the employer's objection does not relate to documentary
evidence that has not been raised in the course of inspection.
What happens to the inspection ruling itself is governed by the next paragraph
of Article 128 (b) which expressly provides for an appeal to the Secretary of Labor, with
the requirement for the ling of a cash or surety bond to perfect the appeal. This
requirement, stated without distinctions or quali cations, should apply to all issues,
whether on the employer-employee issue or on the inspection findings.
A necessary question that arises is the status of the current rule implementing
Article 128 (b) as amended, which is an exact copy of the law except for the addition of
a new sentence ". . . In such cases the Regional Director shall endorse the dispute to
the appropriate regional branch of the National Labor Relations Commission for proper
action." This rule antedates the R.A. 7730 amendment but is not necessarily negated by
the Secretary's expanded powers because of the limitation that the Secretary or his
representation has jurisdiction only where an employment relationship exists. Properly
understood, it should now be read as a con rmation of the Secretary's expanded power
that includes the full authority to rule on whether employer-employee relationship
exists. It is only upon a ruling that no such relationship exists that the Secretary and the
Director are divested of jurisdiction to rule on the monetary claim. The Secretary or the
Director must then endorse the monetary claim to the NLRC instead of dismissing it for
lack of jurisdiction. However, whatever action the Director takes is a matter that can be
appealed to the Secretary of Labor pursuant to the second paragraph of Article 128 (b).
In the present case, the petitioner did appeal as allowed by Article 128 (b), but
unfortunately blew its chance to secure a review on appeal before the Secretary of
Labor as it failed to post the cash or surety bond that the present law expressly
requires.
This reading of the law totally invalidates the ponencia's position in the present
case that the Regional Director and the Secretary of Labor have no jurisdiction to issue
an enforcement order and the case should have been turned over to the NLRC for
compulsory arbitration after the petitioner claimed or has shown prima facie that no
employer-employee relationship existed.
The ponencia makes a nal desperate effort to circumvent the plain import of
Section 128 (b) and its history by appealing to and urging the use of the common
law in reading the DOLE Secretary's visitorial and enforcement powers under
the cited Section. The ponencia suggests a "functional or pragmatic analysis" to
ascertain the jurisdictional boundaries of administrative agencies. Why the common
law approach is to be used in the Philippines' statutory regime is puzzling. Why there is
a need for such an analysis to understand the terms of Section 128 (b) and the Labor
Code, is more so. The suggested common law approach is simply irrelevant and
deserves no further discussion.
Petitioner Failed to Validly
Appeal to the Secretary
The parties do not dispute that the remedy from the Regional Director's ruling is
an appeal to the Secretary, as the petitioner did indeed appeal to the Of ce of the
Secretary of Labor. The ponencia, however, rules that the DOLE erred in declaring that
the appeal was not perfected; the ponencia holds that the Deed of Assignment of Bank
Deposits that the petitioner submitted in lieu of a cash or surety bond substantially
satis ed the requirements of Section 128 (b) of the Labor Code. This provision states:
cDTaSH
xxx xxx xxx

order involves a monetary award, an appeal by the employer may be perfected
only upon the posting of a cash or surety bond issued by a reputable bonding
company duly accredited by the Secretary of Labor and Employment in the
amount equivalent to the monetary award in the order appealed from.
The Deed of Assignment 1 7 was accompanied by a Letter Agreement between

Queen City Development Bank and the petitioner covering Platinum Savings Deposit
(PSD) No. 010-8-00038-4, 1 8 and a Cash Voucher 1 9 issued by the petitioner indicating
the amount of P203,726.30 deposited at the bank. The Deed of Assignment reads:
DEED OF ASSIGNMENT OF BANK DEPOSIT
WITH SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That, I, GREMAN B. SOLANTE in my capacity as Station Manager of DYMF
Cebu City, PEOPLE'S BROADCASTING SERVICES, INC., a corporation duly
authorized and existing under and by virtue of the laws of the Philippines, for and
in consideration of the sum of PESOS: TWO HUNDRED THREE THOUSAND
SEVEN HUNDRED TWENTY SIX PESOS & 30/100 (Php203,726.30), Phil.
Currency, CASH BOND GUARANTEE for the monetary award in favor to the
Plaintiff in the Labor Case docketed as LSED Case No. RO700-2003-09-CI-
091 , now pending appeal.
That Respondent-Appellant do hereby undertake to guarantee available and
suf cient funds covered by Platinum Savings Deposit (PSD) No. 010-8-
00038-4 of PEOPLE'S BROADCASTING SERVICES, INC., in the amount of
PESOS: TWO HUNDRED THREE THOUSAND SEVEN HUNDRED TWENTY
PESOS & 30/100 ONLY (Php203,726.30) payable to Plaintiff-
Appellee/Department of Labor and Employment Regional Of ce VII at
Queen City Development Bank, Cebu Branch, Sanciangko St., Cebu City.
It is understood that the bank has the full control of Platinum Savings Deposit
(PSD) No. 010-8-00038-4 from and after this date and that said sum cannot
be withdrawn by the Plaintiff-Appellee/Department of Labor and
Employment Regional Of ce VII until such time that a Writ of Execution
shall be ordered by the Appellate Office.
FURTHER, this Deed of Assignment is limited to the principal amount of
PESOS: TWO HUNDRED THREE THOUSAND SEVEN HUNDRED TWENTY
SIX PESOS & 30/100 from the said Deposit will be for the account holder.
IN WITNESS WHEREOF, I have hereto af xed my signature this 18th day of
June, 2004, in the City of Cebu, Philippines.
PEOPLE'S BROADCASTING SERVICES, INC.
By:
(Sgd.)
GREMAN B. SOLANTE
Station Manager
The ponencia's position is legally incorrect as it conveniently fails to consider

both the wording of the law and the spirit that led to this wording. The law expressly
states that an appeal is perfected "only" upon the posting of a cash or surety bond; 2 0
no other document or instrument is allowed. What aggravates the ponencia's disregard
of the express wording of the law is the petitioner's knowledge, on record, that a cash
or surety bond is required. This knowledge is clearly demonstrated by the petitioner's
motion for extension of time to le appeal, led on June 17, 2004, on the ground of
fortuitous event. 2 1 The fortuitous event referred to was the South Sea Surety and
Insurance Co.'s alleged lack of the required legal forms for the bond; to support the
motion, the surety company committed to issue the bond the following day, June 18,
2004. Further, in a submission entitled "Appeal" led with the DOLE Regional Of ce on
June 18, 2004, the petitioner made the following statement:
Accompanying this APPEAL are
1. APPEAL MEMORANDUM;
2. Cash bond pursuant to the specifications in RESOLUTION;
3. Proof of payment of required filing fee.
No cash bond was however submitted, showing that the petitioner was less than
candid when it made its claim. It was under these circumstances i.e., the petitioner's
knowledge that a cash or surety bond is required; the absence of a cash bond; and
misrepresentation that a cash bond was attached when there was none that the
DOLE Secretary dismissed the appeal. The CA correctly supported the Secretary's
action and ruled that the Secretary did not act with grave abuse of discretion in
dismissing the appeal.
Separately from these factual incidents are reasons proceeding from established
jurisprudence as the indispensability of a bond to perfect an appeal is not a new issue
for the Court. In Borja Estate, et al. v. Spouses R. Ballad and R. Ballad, 2 2 we ruled that
The intention of the lawmakers to make the bond an indispensable requisite for
the perfection of an appeal by the employer is underscored by the provision that
an appeal may be perfected "only upon the posting of a cash bond". The word
"only" makes it perfectly clear that the LAWMAKERS intended the posting of a
cash or surety bond by the employer to be the exclusive means by which an
employer's appeal may be considered complete.
xxx xxx xxx
Evidently, the posting of a cash or surety bond is mandatory. And the perfection
of an appeal in the manner and within the period prescribed by law is not only
mandatory but jurisdictional. [emphasis supplied].
Interestingly, the same adverb "only" that this Court construed in Borja, is the
very same adverb that Article 128 (b) of the Labor Code contains. Thus, this Article
states in part an appeal by the employer may be perfected only upon the posting of a
cash or surety bond issued by a reputable bonding company duly accredited by the
Secretary of Labor and Employment. All these safeguards would be for naught if the
ponencia's understanding of the requirements for the perfection of an appeal will
prevail. To reiterate, the bond must be in cash or a surety issued by a reputable bonding
company, not by any bonding company. The reputation alone of the bonding company
will not suf ce to satisfy the law; the bonding company must be accredited by the
Secretary. "Cash", on the other hand, whether in lay or its legal signi cation, means a
sum of money; cash bail (the sense in which a cash bond is used) is a sum of money
posted by a criminal defendant to ensure his presence in court, used in place of a surety
bond and real estate. 2 3
How the aforequoted Deed of Assignment can satisfy the above legal
requirements requires an act of bending that goes beyond the intent of the law. What
the Deed extends is a guarantee using a sum of money placed with a bank, not with the
DOLE. The guarantee is made by a certain Greman B. Solante, described in the Deed as
Station Manager signing for and in behalf of the petitioner, a corporation. There is no
indication anywhere, however, that Mr. Solante was authorized by the Board
of the corporation to commit the corporate funds as a guarantee. 2 4 This lack
of clear authority is replete with legal implications that render the Deed of
Assignment less than the cash bond that it purports to be; among others,
these implications impose on the DOLE added burdens that a cash bond is
designed to avoid. Under Article 1878 of the Civil Code, a special power of attorney
is required to bind a principal as guarantor or surety. Under Section 23 and 35 of the
Corporation Code of the Philippines, authority over corporate funds is exercised by the
Board of Directors who, in the absence of an appropriate delegation of authority, are
the only ones who can act for and in behalf of the corporation. Under Article 1403 of the
Civil Code, a contract entered into without any legal authority or legal representation is
unenforceable. To state the obvious, all these are stumbling blocks for the DOLE when
enforcement against the Deed of Assignment comes.
It is noteworthy, too, that the guarantee is under the condition that "said sum
cannot be withdrawn by the Plaintiff-Appellee/Department of Labor and Employment
Regional Of ce VII until such time that a Writ of Execution shall be ordered by the
Appellate Of ce". What this limitation means is not at all certain. But on its face, it
means that the bond is in favor of the DOLE Regional Of ce, not to the Of ce to the
DOLE Secretary where the appeal has been led. Thus, the DOLE Secretary herself has
no authority to call on the guarantee. Even Regional Of ce VII cannot, until a writ of
execution is ordered by the Appellate Of ce. What this Appellate Of ce is, is again not
certain and can mean the highest appellate levels all the way up to this Court. Another
uncertainty is the bank's commitment to the guarantee as the Deed only contains a
"CONFORME" signed by the Of cer-in-Charge of the Queen City Development Bank, not
the exact terms of the bank's own commitment to the DOLE in whose favor any bond
should be made. What is certain about the Deed is provided in its penultimate
paragraph" "any interest to be earned from said Deposit will be for the account holder".
The Platinum Savings Deposit mentioned in the Deed is itself very interesting as
it carries the heading "Deposit Insured by PDIC Maximum Amount of Php100,000.00.
Yet, the amount of deposit is stated to be Php203,726.30, with interest rate of 4.25%,
and maturity date of July 19, 2004 (31 days). Thus, if anything happened to the
depositary bank, in the way that banks under the Legacy group of banks currently has
problems, the DOLE Regional Of ce VII would be holding an empty guarantee and
would still have to file a claim with the PDIC for the maximum amount covered. aEHADT
To be sure, these are not the terms the framers of the law intended when they
required that perfection of appeal requires the ling "only" of a cash or surety bond.
Effectively, what the Deed of Assignment and its allied documents have
committed to support the perfection of the petitioner's appeal, with the
intent to pass it off as a cash bond, is an amount whose control is not clearly
with the DOLE and which may require a lot of clari cations and prior actions
before it can be used to pay the monetary claim secured by the bond. This is
what the ponencia wishes to recognize as a substitute for the cash bond requirement
of the law. To say the least, a ruling from this Court of this tenor would severely and
adversely affect the effectiveness and ef ciency of the DOLE's handling of appeals
before it; it would be a precedent that effectively negates the certainties the law wishes
to foster, and would be a welcome development to those who would wish to submit
guarantees other than the cash or surety bonds the law demands.
I submit that the determination of what satis es the bonding requirement in
labor appeals is a matter for the Secretary of Labor and Employment to determine in
the rst instance, and should be free from judicial interference, provided that the
Secretary does not substantially depart from the letter and intent of the law. Once the
Secretary the entity with primary jurisdiction over labor appeals has ruled that a
guarantee other than the strict cash and surety bonds that the law requires is not
suf cient, then this Court should be bound by the determination in the absence of any
attendant grave abuse of discretion on the part of the Secretary. Otherwise stated, this
Court cannot and should not second guess or in hindsight control an administrative
tribunal in the exercise of its powers, even "in the interest of justice", where there is no
attendant grave abuse of discretion amounting to lack or excess of jurisdiction. Only in
this manner can this Court accord due respect to the constitutional separation of
powers that it is duty-bound to enforce.
Failure of the CA to review the evidence
In light of the above discussions, the CA could not have been wrong in concluding
that no grave abuse of discretion attended the CA's conclusion that the petitioner
indeed failed to perfect its appeal before the Secretary. Over and above this objection,
however, the ponencia, faults the CA for not examining the evidence to determine
whether the conclusions of the DOLE in the assailed orders were supported by the
evidence presented. It nds that the CA focused instead on a general discussion of due
process and the jurisdiction of the Regional Director.
Let it be clari ed that the Secretary did not need to go into a full discussion of
the merits of the appeal because no appeal was ever perfected. The CA understandably
focused on this aspect of the case as it renders moot all other issues. To the CA's
credit it made sure that there was no denial of due process that tainted the DOLE
decisions and it found that there was none. In this light, the CA complied with what the
Constitution requires as a decision maker is only duty-bound to state the facts and the
law on which its decision is based. 2 5
In this respect, it should be considered that the petitioner was given every
opportunity to be heard at the DOLE Regional Of ce. The plant inspection was
conducted at the petitioner's own establishment where its of cials were present. No
complaint exists regarding this aspect of the case. A notice of inspection results was
duly sent to the petitioner, which it contested. Thus, the Regional Director directed the
parties to le their position papers on the inspection results. The parties duly complied,
with parties both focusing on the employer-employee relationship issue. In the Order
dated February 27, 2004, the Director fully considered the parties' positions in light of
the inspection results and ruled that there was employer-employee relationship. The
petitioner reacted by ling a motion for reconsideration and a supplemental motion for
reconsideration, to which additional supporting exhibits were attached. These
submissions were taken into account but still failed to convince the Director.
Unfortunately, the petitioner equated the Regional Director's failure to rule in its favor to be
denial of due process for the alleged failure to consider the evidence it submitted. The CA,
of course, noting the above-described developments in the case saw the fallacy of the
petitioner's submission and dismissed the petition, thus affirming the DOLE level
decisions.
The Director's ruling that the ponencia now sees as objectionable states in its material
portion:
Under the said Policy Instructions, there are two (2) types of employees in the
broadcast industry, namely: 1) "Station employees are those whose services
are engaged to discharge functions which are usually necessary and desirable to
the operation of the station and whose usefulness is not affected by changes of
programs, ratings or formats and who observe normal working hours. These shall
include employees whose talents, skills or services are engaged as such by the
station without particular reference to any speci c program or undertaking, and
are not allowed by the station to be engaged or hired by other stations or persons
even if such employees do not observe normal working hours. 2) Program
employees are those whose skills, talents or services are engaged by the
station for a particular or speci c program or undertaking and who are not
required to observe normal working hours such that on some days they work for
less than eight (8) hours and on other days beyond the normal work hours
observed by the station employees and are allowed to enter into employment
contracts with other persons, stations, advertising agencies or sponsoring
companies. The engagement of program employees, including those hired by
advertising agencies or sponsoring companies, shall be under a written contract
specifying, among other things, the nature of the work to be performed, rates to
pay, and the programs in which they will work. The contract shall be duly
registered by the station with the Broadcast Media Council within three (3) days
from its consummation."
A careful perusal of the records of this case showed that complainant Jandeleon
Juezan was hired by the respondent as a radio talent/spinner and work six (6)
days a week from 8:00 A.M. to 5:00 P.M., Monday thru Saturday. It was the
respondent who paid complainant's salary every quincena and was required by
the former to sign payrolls. Notwithstanding the employment contract stipulating
herein complainant as a program employee, his actual duty pertains to that of a
station employee. Moreover, respondent failed to register said employment
contract with the Broadcast Media Counsel as required. He is required to observe
normal working hours that deductions are made for tardiness. Therefore, it is
crystal clear that complainant is a station employee rather than a program
employee hence entitled to all benefits appurtenant thereto.
cACTaI
In the motion for reconsideration that followed, the Director ruled as follows:
For resolution is the Motion for Reconsideration led by the respondent on March
15, 2004 to the Order of this Of ce dated February 27, 2004 on the ground that
due process is not observed.
The motion was set for clari catory hearing on April 2, 2004 wherein the parties
through their respective counsel appeared. Counsel for complaint asked for 15
days from April 2, 2004 to le its comment to the Motion for Reconsideration
after which the case is submitted for resolution.
Respondent in its Motion for Reconsideration alleged to have been denied due
process because it was not given the opportunity to examine the identi cation
card which was not presented for scrutiny and verification.
The contention sought by the respondent is without merit.
The identi cation card presented by complainant that he was an authorized
Media Representative is not material to this case nor fatal to respondent's case.
Presentation of employment records is the burden of employer and not of
complaint worker.
Respondent's passing the buck of employer-employee relationship to its drama
Directors and Producers is of no moment. Granting without admitting that herein
complainant is indeed under the employ of respondents' drama directors. Such
partakes of a sub-contracting relationship which will not absolve herein
respondent from its solidary liability to complainant's claims pursuant to Art. 106
to Art. 109 of the Labor Code.
Correctly understood, these rulings do not indicate in any way that the
petitioner's evidence were not considered. To be sure, the parties' various pieces of
evidence the parties submitted were not all mentioned in these rulings. What it does
mention are its ndings from the parties' con icting factual assertions. Interestingly, it
implies that, at least nominally, the respondent was a program employee. This is the
ruling's concession to the petitioner's evidence. However, it also asserts that despite
this seeming status, the respondent was in fact a station employee for the reasons the
ruling outlined, namely: (1) the respondent initially hired the respondent as a radio
talent/spinner; (2) his work was six [6] days a week from 8:00 A.M. to 5:00 P.M.,
Monday thru Saturday; (3) he is required to observe normal working hours and
deductions are made for tardiness; (4) the respondent paid the complainant's salary
every quincena; (5) the petitioner required the respondent to sign payrolls; (6)
notwithstanding the employment contract stipulating herein complainant as a program
employee, his actual duty pertains to that of a station employee; and (7) the petitioner
failed to register the respondent's employment contract with the Broadcast Media
Counsel as required.
Thus viewed, the ponencia's conclusion that the Director did not consider the
petitioner's evidence is misplaced. In fact, the factors the Director pointed out
decisively show that an employer-employee relationship existed between the petitioner
and the respondent.
Confusion between the DOLE and
the NLRC in resolving employment
relationship issues.
As last point that is hard to leave alone is the ponencia's interpretation that the
standard laid down in the last sentence of Article 128 (b) of the Labor Code that the
documentary proofs be "considered in the course of inspection" applies only to issues
other than the fundamental issue of the existence of employer-employee relationship. A
contrary rule according to the ponencia would lead to controversies on the part of labor
officials in resolving the issue of employer-employee relationship.
What the ponencia apparently refers to is that portion of Article 128 (b) that was
amended by R.A. 7730, heretofore discussed. To reiterate what has been stated above,
the "documentary proofs which were not considered in the course of inspection" refers
to the objection that a party may raise in relation with the issuance of a writ of
execution, and does not relate to the extent of the visitorial and enforcement power of
the Secretary de ned in the rst sentence of the Article. Thus, no writ may immediately
issue if such objection exists. Rather, a full hearing shall ensue as in this case where the
Director allowed the petitioner to submit evidence as late as the motion for
reconsideration stage. After the Director shall have ruled on all the submitted issues,
then a writ of execution shall issue if no appeal is taken; otherwise, an appeal may be
taken to the Secretary. Under the Rules, the perfection of an appeal holds in abeyance
the issuance of a writ of execution or suspends one already issued. 2 6 R.A. 7730
effectively changes this rule by giving the authority to issue a writ of execution unless
the "excepting clause" mentioned above applies.
That the employment relationship issue is for the Secretary or his representative
to rule upon is clear from the wording of the 1st paragraph of Article 128 (b) when it
de nes the extent of the Secretary's power. In this de nition of authority, the issue
cannot be anywhere else but with the Secretary who has been granted visitorial and
enforcement power when an employment relationship exists. This grant must be read
with the 2nd paragraph of the same Article that identi es an appeal as the remedy to
take from an inspection decision made under the 1st paragraph.
For the ponencia to imply that the NLRC is more tted to rule on the employment
relationship issue misunderstands the power that Article 128 grants the Secretary. It is
a full fact- nding power that includes whatever is necessary for the enforcement of the
grant, including the authority to determine when the limits of the power apply and to call
the parties and hear and decide their submissions. For this reason, Sections 5 (a) and 6
of Department Order No. 7-A, Series of 1995 states:
Sec 5. Field investigation and hearing. (a) In case of complaint inspection
where no proof of compliance is submitted by the employer after seven (7)
calendar days from receipt of the inspection results, the Regional Director shall
summon the employer and the employees/complainants to a summary hearing at
the regional office.
xxx xxx xxx

Sec. 6. Nature of Proceedings. The proceedings shall be summary and non-
litigious in character. Subject to the requirements of due process, the
technicalities of law and procedure and the rules governing admissibility and
suf ciency of evidence obtaining in the courts of law shall not strictly apply. The
regional director or his designated representative may, however, avail of all
reasonable means to ascertain the facts of the controversy speedily and
objectively, including the conduct of ocular inspection and examination of well-
informed persons. Substantial evidence shall be sufficient to support a decision.
Signi cantly, the nature of the proceedings before the Regional Director is not
different from the proceedings before the Labor Arbiter. Section 2, Rule V of the
Revised Rules of Procedure of the National Labor Relations Commission (2005)
provides that: cDTSHE
Section 2. Nature of Proceedings. The proceedings before the Labor Arbiter

shall be non-litigious in nature. Subject to the requirements of due process, the
technicalities of law and procedure and the rules obtaining in courts of law shall
not strictly apply thereto. The Labor Arbiter may avail himself of all reasonable
means to ascertain the facts of the controversy speedily, including the ocular
inspection and examination of well-informed persons.
Thus, the view that one tribunal has primacy over another because of the nature
of their proceedings, the quantum of evidence required, or their level of expertise, is
misplaced. Properly understood, the structure that Article 128 (b) provides in relation
with monetary claims within and employment relationship, as well as the delineation of
powers between the Secretary of Labor and Employment and the NLRC are not at all
complicated nor confusing, and need not lead to controversies on the part of labor
of cials in resolving the issue of employer-employee relationship, as the ponencia
fears.
Footnotes
* Acting Chairperson.
** Per Special Order No. 619, Justice Teresita J. Leonardo-de Castro is hereby designated
as additional member of the Second Division in lieu of Justice Leonardo A. Quisumbing,
who is on official leave.
1. People's Broadcasting Service (Bombo Radyo Phils., Inc.) v. The Secretary of the
Department of Labor and Employment, the Regional Director, DOLE Region VII and
Jandeleon Juezan, rollo, pp. 38-43 and 56, respectively. Penned by Associate Justice
Pampio A. Abarintos, with Associate Justices Agustin S. Dizon and Priscilla Baltazar-
Padilla, concurring.
2. Complaint dated 18 September 2003, id. at 95.

3. Id. at 92.
4. Id. at 94.
5. Id.
6. Per Minutes of the 11 November 2003 Summary Proceeding, DOLE records, p. 24.
7. Rollo, pp. 96-99.
8. DOLE Records, pp. 151-152.
9. Id. at 217-219.
10. Rollo, pp. 38-43.
11. Resolution dated 26 June 2007, id. at 56.
12. Petitioner maintains that the instant case is beyond the jurisdiction of the Regional
Director because respondent's claim exceeds P5,000. The argument must be struck
down at once, as it is well settled, following the amendment of the Labor Code by R.A.
7730 on 2 June 1994, that the visitorial and enforcement powers of the Regional Director
can be exercised even if the individual claim exceeds P5,000. See Allied Investigation
Bureaus, Inc. v. Secretary of Labor, G.R. No. 122006, 24 November 1999, 319 SCRA 175,
Cirineo Bowling Plaza, Inc. v. Sensing, G.R. No. 146572, 14 January 2005, 448 SCRA
175. Ex-Bataan Veterans Security Agency, Inc. v. Laguesma, G.R. No. 152396, 20
November 2007, 537 SCRA 2007.
13. Rollo, p. 131.
14. Comment, id. at 125-140.
15. Dated 16 September 1987 issued by then DOLE Secretary Franklin M. Drilon. The same
Rules are used up to the present.
16. G.R. No. 160859, 30 July 2008, 560 SCRA 457.
17. Id. at 469. The Court made the ruling only as regards respondent Abuan who had made
a claim of illegal dismissal but qualified that "the same (the ruling) does not hold for the
rest of respondents, who do not claim to have illegally dismissed. HSDCTA
18. Bunbury v. Fuller 9 Ex. 111, 140 (1853), cited in CASES, MATERIALS AND
COMMENTARY ON ADMINISTRATIVE LAW by S.H. Bailey, B.L. Jones, A.R. Mowbray, p.
423. This view is more popularly called the "preliminary or collateral question".
19. Re Ontario Nurses Association v. Pay Equity Hearings Tribunal and Glengarry Memorial
Hospital, 10 April 1995, Decision of the Ontario Court of Appeals.
20. Ropali Trading Corporation v. NLRC, G.R. No. 122409, 25 September 1998.
21. Felix v. Enertech Systems Industries, Inc., G.R. No. 142007, 28 March 2001, 355 SCRA
680.
22. LABOR CODE, Art. 128 (a).

23. Respondent's position paper, DOLE Records, pp. 29-37.
24. Id. at 28.
25. Id. at 44-49.
26. Order dated 27 February 2004, id. at 64.
27. Issued by then Minister of Labor Blas F. Ople on 8 January 1979, it governs the
employer-employee relationship, hours of work and disputes settlement in the broadcast
industry.
28. Sonza v. ABS-CBN Broadcasting Corporation, G.R. No. 138051, 10 June 2004, 431
SCRA 583, 606.
29. The argument was made in respondent's Comments on Respondent's Motion for
Reconsideration, DOLE Records, pp. 135-138, photocopy of the identification card is on
p. 134.
30. RULES OF COURT, Rule 133, Sec. 5.

31. Opulencia Ice Plant and Storage v. NLRC, G.R. No. 98368, 15 December 1993, 228
SCRA 473.
32. Insular Life Assurance Co., Ltd. Employees Association-Natu, et al. v. Insular Life
Assurance Co., Ltd., et al., G.R. No. L-25291, 10 March 1977, 76 SCRA 51.
33. Pacific Maritime Services, Inc., et al. v. Nicanor Ranay, et al., G.R. No. 111002, July 21,
1997, 275 SCRA 717.
34. DOLE Records, p. 209.

35. Id. at 208.
36. Id. at 207.
37. Orozco v. Court of Appeals, G.R. No. 155207, 29 April 2005, 457 SCRA 700, 709,
citations omitted.
38. Nicol v. Footjoy Industrial Corp., G.R. No. 159372, 27 July 2007, 528 SCRA 300, 318.
39. The Letter Agreement contains the interest rate for the deposit, the maturity date, the
stipulated interest rates in case the principal is withdrawn within a certain period, as well
as the 20% withholding tax.
40. Cordova v. Keysa's Boutique, G.R. No. 156379, 16 September 2005, 470 SCRA 144, 154,
citing Your Bus Lines v. NLRC, G.R. No. 93381, 28 September 1990, 190 SCRA 160. ETIDaH
41. Id.
42. Id. In this case, the bank certification merely stated that the spouses/employer
have/has a depository account containing a certain amount, and that the certification
was issued upon the clients' request for whatever legal purposes it may serve them.
There was no indication that the said deposit was made specifically for the pending
appeal, as in the instant case.
43. Condo Suite Club Travel, Inc. v. NLRC, G.R. No. 125671, January 28, 2000, 323 SCRA
679.
44. Provident International Resources Corp. v. Court of Appeals, G.R. No. 119328, 26 July
1996, 259 SCRA 510.
45. Conti v. Court of Appeals, G.R. No. 134441, 19 May 1999, 307 SCRA 486 citing
Detective & Protective Bureau v. Cloribel, L-23428, 29 November 1968, 26 SCRA 255 and
Matute v. Court of Appeals, L-26085, 31 January 1969, 26 SCRA 768.
46. Zarate v. Olegario, G.R. No. 90655, 7 October 1996, 263 SCRA 1.
47. Destileria Limtuaco & Co., Inc. v. IAC, L-74369, 29 January 1988, 157 SCRA 706, 715.
48. Gutib v. Court of Appeals, G.R. No. 131209, 13 August 1999, 312 SCRA 365.
49. Santo Tomas University Hospital v. Surla, G.R. No. 129718, 17 August 1998, 294 SCRA
382.
50. Filoteo v. Sandiganbayan, G.R. No. 79543, 16 October 1996, 263 SCRA 222.
51. Osmea III, et al. v. Sandiganbayan, G.R. No. 116941, 31 May 2001.
52. Chua, et al. v. Santos, G.R. No. 132467, 440 SCRA 365, 374-375, citing MMDA v.
JANCON Environmental Corp., G.R. No. 147465, 30 January 2002, 375 SCRA 320.
53. Destileria Limtuaco & Co., Inc. v. IAC, L-74369, 29 January 1988, 157 SCRA 706, 716,
citing Republic v. Court of Appeals, L-54886, 10 September 1981, 107 SCRA 504 and
Republic v. Court of Appeals, L-31303-04, 31 May 1978, 83 SCRA 459.
54. Supra note 46.
CARPIO MORALES, J., dissenting:
1. The present petition is one for certiorari.

BRION, J., dissenting:
1. The Visitorial and Enforcement Powers of the DOLE Secretary.

2. Order dated February 27, 2004, p. 3, last paragraph.
3. DOLE records, p. 152.
4. Chan v. Court of Appeals, G.R. No. 159922, April 28, 2005, 457 SCRA 502.
5. People v. Maguikay, G.R. Nos. 103226-28, October 14, 1994, 237 SCRA 587.
6. Approved on June 2, 1994; published on June 20, 1994.
7. Prangan v. NLRC, G.R. No. 126529, April 15, 1998, 289 SCRA 142; see Nicario v. NLRC,
Mancao Supermarket, et al., G.R. No. 125340, September 17, 1998.
8. Incorporated in the Implementing Rules under Department Order No. 7-A, Series of 1995.
9. Rule 3, Section 1 (a) and (b).
10. See: ponencia, pp. 6-7.
11. Its 1st ground is a generic allegation of grave abuse of discretion for denial of due
course to the petition; the 2nd ground, using the "grave abuse" magic formula, at the
same time states that the Secretary committed an error of law; the 3rd ground alleges
grave abuse for not "delving on the issues raised by the petitioner"; the 4th in the list is
not a cited ground at all but a statement that there is no adequate remedy in the course
of law other than a petition for certiorari.
12. RULES OF COURT, Section 1, Rule 45.

13. Estino v. CA, G.R. No. 150276, February 12, 2008, 544 SCRA 422.
14. Dated September 16, 1987, issued by then DOLE Secretary Franklin M. Drilon.
15. Approved on June 2, 1994; published on June 20, 1994.

16. Bay Haven, Inc., et al. v. Abuan, et al., G.R. No. 160859, July 30, 2008.
17. DOLE Records, p. 207.
18. Id., p. 209.

19. Id., p. 208.
20. Art. 128 (b), last par., Labor Code.
21. DOLE Records, pp. 153 and 154.
22. G.R. No. 152550, June 8, 2005, 459 SCRA 657.

23. Black's Law Dictionary, 6th Ed. P. 216.
24. Under Article 1878 of the Civil Code, a special power of attorney is necessary to bind the
principal as a guarantor or surety.
25. Section 14, Article VIII, Constitution.

26. Section 10, Department Order No. 7-A, Series of 1995.

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SECOND DIVISION

[G.R. No. 179652. May 8, 2009.]

PEOPLE'S BROADCASTING (BOMBO RADYO PHILS., INC.) , petitioner,

The present controversy concerns a matter of rst impression, requiring as it

On the other hand, complainant Juezan's alleged violation of non-diminution of

CD Technologies Asia, Inc. 2016 cdasiaonline.com

(August 1/03 to Sept. 15/03)

xxx xxx xxx

A more liberal interpretative mode, "pragmatic or functional analysis", has also

This decision should not be considered as placing an undue burden on the

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This is to certify that MR. JANDELEON JUEZAN is a program employee of

HUMAN RESOURCE DEPARTMENT

It has long been established that in administrative and quasi-judicial proceedings,

Although substantial evidence is not a function of quantity but rather of quality,

A review of the documents submitted by petitioner is called for to determine

That Respondent-Appellant do hereby undertake to guarantee available and

IN WITNESS WHEREOF, I have hereunto af xed my signature this 18th day if *

As priorly mentioned, the Deed of Assignment was accompanied by a Letter

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The Regional Director fully relied on the self-serving allegations of respondent

Although the ponencia concedes that the Labor Secretary is empowered to

BRION, J., dissenting :

I dissent and vote for the dismissal of the petition.

CD Technologies Asia, Inc. 2016 cdasiaonline.com

I. Grounds for Dissent.

a. The CA cannot be wrong when it refused to recognize that no grave

In doing so, the Director upheld the existence of employer-employee

2. The public respondent committed grave abuse of discretion amounting to

3. The public respondent committed grave abuse of discretion amounting to

Propriety of a Rule 65 Petition for Certiorari

With these general statements, as premises, the ponencia generally adverts to

This approach is a legally incorrect due mainly to the ponencia's lack of

As amended, Section 128 (b) now states:

xxx xxx xxx

An order issued by the duly authorized representative of the Secretary of Labor

The Deed of Assignment 1 7 was accompanied by a Letter Agreement between

The ponencia's position is legally incorrect as it conveniently fails to consider

3. Proof of payment of required filing fee.

xxx xxx xxx

Section 2. Nature of Proceedings. The proceedings before the Labor Arbiter

2. Complaint dated 18 September 2003, id. at 95.

22. LABOR CODE, Art. 128 (a).

30. RULES OF COURT, Rule 133, Sec. 5.

34. DOLE Records, p. 209.

1. The present petition is one for certiorari.

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1. The Visitorial and Enforcement Powers of the DOLE Secretary.

12. RULES OF COURT, Section 1, Rule 45.

15. Approved on June 2, 1994; published on June 20, 1994.

18. Id., p. 209.

22. G.R. No. 152550, June 8, 2005, 459 SCRA 657.

25. Section 14, Article VIII, Constitution.

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