Ushio Marketing v. NLRC, GR No.

124551, August 28, 1998 performed reserves the right to control not only the end achieved,
August 28, 1998 | DAVIDE, JR., J. | GR No. 124551 but also the manner and means to be used in reaching that end.
Topic

PETITIONERS: USHIO MARKETING

RESPONDENTS: NATIONAL LABOR RELATIONS COMMISSION and FACTS:
SEVERINO ANTONIO 1. Private respondent Severino Antonio was an electrician who
worked within the premises of petitioner Ushio's car accessory
SUMMARY: Private respondent Severino Antonio was an electrician who shop in Banawe, Quezon City. On August 22, 1994, private
worked within the premises of petitioner Ushio's car accessory shop in respondent filed a complaint for illegal dismissal, non-payment
Banawe, Quezon City. Antonio filed a complaint for illegal dismissal, non- of overtime pay, holiday pay, and other benefits against
payment of overtime pay, holiday pay, and other benefits against petitioner petitioner Ushio Marketing which was docketed as NLRC NCR
Ushio Marketing. Ushiro filed a Motion to Dismiss alleging that it was a Case No. 08-06147-94 and assigned to Labor Arbiter Facundo L.
single proprietorship engaged in the business of selling automobile spare Leda.
parts and accessories. Ushiro claimed that Antonio was not among her 2. Ushiro filed a Motion to Dismiss alleging that it was a single
employees but a free lance operator who wait[ed] on the shop's customers proprietorship engaged in the business of selling automobile
should the latter require his services. Ushiro attached an affidavit executed spare parts and accessories. Ushiro claimed that Antonio was
by Share Motor Sales, also engaged in the business of selling car spare not among her employees but a free lance operator who
parts and accessories along Banawe Street attesting that Antonio, wait[ed] on the shop's customers should the latter require his
performed jobs [for] its customers at their shop. services.
3. Attached to the motion of the petitioner is an affidavit executed by
ISSUE: Whether or not Antonio was an employee of Ushiro. NO. Ms. Caroline Tan To, Assistant Manager of Share Motor Sales, also
engaged in the business of selling car spare parts and accessories
The Court rules that the power to control the employee's conduct, i.e., the along Banawe Street, attesting to the following : that in the pursuit of
conduct of Antonio is absent: 1. Antonio failed to allege and present proof the said business, it allows independent and free lance operators,
that petitioner supplied him equipment and tools. 2. Antonio was not such as electricians, to wait on customers who would want them to
subject to the control and supervision of petitioner or any of its personnel. perform their services; and that she knows one independent operator
Private respondent himself decided how he would render electrical by the name of Severino Antonio, as the latter had performed jobs
services to customers. If it is true that private respondent was hired as [an] [for] its customers.
electrician, petitioner would have exercised supervision and control over 4. Labor Arbiter dismissed the complaint of private respondent Severino
the, means and manner he performed his electrical services for, otherwise, Antonio against petitioner Ushio Marketing Corp.
if private respondent's work was unsatisfactory, it would reflect on the 5. In his memorandum, private respondent alleged that Ushio
business of petitioner. 3. Antonio was free to offer his services to other Marketing hired his services on 15 November 1981 until July 3,
stores along Banaue, Quezon City, as evidenced by the affidavit of 1994 as an electrician with a daily salary of one hundred thirty
Caroline Tan To, Assistant Manager of Share Motor Sales and private two pesos (P132.00) per day.
respondent's own admission. But although private respondent admits that 6. The NLRC reversed the Labor Arbiter. It adopted private
he rendered electrical services to the customers of other stores, he claims respondent's allegations in his complaint that he had "worked for
that petitioner allowed him to do so. 4. Antonio admits that "[i]t was Mrs. respondent since '1988' as [an] 'electrician' [and] paid 'weekly every
Tan who refers electrical and other jobs to private respondent". If Antonio Sunday' at the rate of '132' pesos per clay;" and concluded that
was an employee of Ushiro, Tan could not have referred electrical work petitioner's arrangement as regards the mode of payment of private
directly to him. She would have to course job orders to petitioner. The fact respondent's wages was "nothing but an evasive attempt to hide the
that she dealt directly with private respondent means that she did not real employment status of [private respondent]," considering that it
consider private respondent an employee of petitioner. could not understand why private respondent could not directly
collect his earnings from a customer, immediately after private
DOCTRINE: Under the control test, an employer-employee respondent accomplished a job for which he was hired; and why
relationship exists where the person for whom the services are
 private respondent's proceeds from jobs rendered on a daily basis equipment or tools in rendering electrical services. If it is true that
could only be paid to him on a weekly basis. private respondent was an employee of petitioner, he would
7. Petitioner argues that it was a recognized and accepted trade have used equipment or tools supplied and owned by his
practice peculiar to the auto spare parts shop industry employer. However, private respondent failed to allege and
operating along the stretch of Banawe Street, Quezon City, that present proof that petitioner supplied him equipment and tools.
shop owners would collect the service fees from its customers 4. Second, the conduct of private respondent was not subject to
and disburse the same to the independent contractor at the end the control and supervision of petitioner or any of its personnel.
of a week. In fine, the shop owner and the independent contractor There was no allegation of this, nor was evidence presented to
were partners in trade, "both benefiting from the proceeds of their prove it other than the bare allegation of private respondent that
joint efforts." This mutual cooperation between petitioner and private he could not leave the work premises without permission from
respondent could then be likened to that of a shoe shiner and a shoe petitioner. Private respondent himself decided how he would
shop owner in Besa v. Trajano, 4 or that of a caddy and the golf club render electrical services to customers. If it is true that private
in Manila Golf Club, Inc. v. Intermediate Appellate Court. respondent was hired as [an] electrician, petitioner would have
8. exercised supervision and control over the, means and manner he
performed his electrical services for, otherwise, if private
*Please include small details, like color and model of car, etc. respondent's work was unsatisfactory, it would reflect on the
business of petitioner.
ISSUES: 5. Third, private respondent was free to offer his services to other
1. Whether or not Antonio was an employee of Ushiro. NO. stores along Banaue, Quezon City, as evidenced by the affidavit
of Caroline Tan To, Assistant Manager of Share Motor Sales
RULING: WHEREFORE, judgment is hereby rendered GRANTING the (Annex B, Reply to Private Respondent's Comment dated
petition, REVERSING the challenged decision and resolution of the National August 5, 1996) and private respondent's own admission. But
Labor Relations Commission in NLRC-NCR CA No. 008495-95 and although private respondent admits that he rendered electrical
REINSTATING the Order of 13 January 1995 of the Labor Arbiter in NLRC- services to the customers of other stores, he claims that petitioner
NCR Case No. 08-06147-94. allowed him to do so. If private respondent was an employee of
petitioner, it was unthinkable for petitioner to allow private
RATIO: respondent to render electrical services to three other stores
*Copy paste the pertinent parts of the case selling automobile spare parts and accessories who were its
First Issue competitors.
1. The factors to be considered in determining the existence of an 6. Fourth, private respondent admits that "[i]t was Mrs. Tan who refers
employer-employee relationship are: (1) the selection and electrical and other jobs to private respondent" (p. 6, Private
engagement of the employee; (2) the payment of wages; (3) the Respondent's Comment dated August 5, 1996). If private respondent
power of dismissal; and (4) the power to control the employee's was an employee of petitioner, Tan could not have referred electrical
conduct. The so-called "control test" is commonly regarded as work directly to him. She would have to course job orders to
the most crucial and determinative indicator of the presence or petitioner. The fact that she dealt directly with private respondent
absence of an employer-employee relationship. Under the means that she did not consider private respondent an employee of
control test, an employer-employee relationship exists where petitioner.
the person for whom the services are performed reserves the 7. It is clear that petitioner did not have the power to control
right to control not only the end achieved, but also the manner private respondent "[w]ith respect to the means and methods
and means to be used in reaching that end. by which his work was to be accomplished" (Continental Marble
2. The Court agree with the Office of the Solicitor General that Corporation. et al. vs. National Labor Relations Commission,
here, the power to control the employee's conduct, i.e., the 161 SCRA 151, 158 [1988]).
conduct of private respondent, is absent, thus: 8. Lastly, private respondent allowed petitioner to collect service
3. First, private respondent contends that he worked as an fees from his customers. He received said fees on a weekly
electrician and personal assistant at petitioner's store. As [an] basis. This arrangement, albeit peculiar, does not prove the
electrician, private respondent may be presumed to have used existence of an employer-employee relationship.