labor 32 pages

8/10/2019 Labor 32 Pages

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and the appe""ants, it being contended that said issue was (afunction of the proper "abor office(3 and

$;% adudicating that se"f sa!e issue a !anner contrary tothe ru"ing of the 5irector of the AC beyondbare !ention thereof, as a"ready pointed out, is now a!ongthe !ainways of the priate respondent#s defenses to thepetition for reiew. Considered in the perspectie of theincidents ust recounted, it i""ustrates as we"" as anything can,why the practice of foru!+shopping ust"y !erits censure andpunitie sanction. ndeed, if any ru"ing or udg!ent can be said to operate as resadudicata on the contested issue of e!p"oyer+e!p"oyeere"ationship between present petitioner and the priaterespondent, it wou"d "ogica""y be that rendered in theco!pu"sory arbitration case $NCR Case No. A


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was entit"ed to his c"ai!s. The decision a"so ordered petitionerco!pany to pay the fo""owing:I&. To pay co!p"ainant his separation pay in the tota"a!ount of &B,777.773;. To pay co!p"ainant his unpaid Christ!as bonus forthree years or the a!ount of &;,777.7732. To pay co!p"ainant his unpaid !id+year bonusequia"ent to one+ha"f !onth pay or the tota" a!ountof B,777.7731. To pay co!p"ainant his accrued acation "eaeequia"ent to &0 days per year of serice, or the tota" a!ount

of B,777.7730. To pay co!p"ainant his unpaid c"othing a""owance in thetota" a!ount of B77.773 andB. To pay co!p"ainant his accrued sic/ "eae equia"ent to&0 days per year of serice or the tota" a!ount of B,777.77.F;K

9n appea", the Third 5iision of the Nationa" 4abor Re"ationsCo!!ission affir!ed the assai"ed decision. The Co!!issionopined that there was no eidence supporting the a""egationthat 4i!oco was an independent contractor or dea"er. Thepetitioner sti"" e@ercised contro" oer 4i!oco through its!e!oranda and guide"ines and een prohibitions on the sa"eof products other than those authoried by it. >n short, thepetitioner co!pany dictated how and where to se"" its products.

Aside fro! that fact, 4i!oco passed the costs to the petitionerchargeab"e against his future co!!issions. Such practiceproed that he was not an independent dea"er or contractor forit is required by "aw that an independent contractor shou"dhae substantia" capita" or inest!ent.5issatisfied with the outco!e of the case, petitioner-ncyc"opaedia f for an instance, ust e@a!p"e your sa"es representatie inany period did not produce any sa"es, you wou"d not get any!oney fro! n fact wheneer you hire a secretary or trainer you !ere"yhire that person and notify n certain cases > ust hired peop"e preious"y e!p"oyed by-ncyc"opaedia n this -@hibit I; you were infor!ing -ncyc"opaedia a! resigning as !anager of the -< Capito" 5iision effectie&B June &'1.This decision was brought about by conf"ict with other interestswhich "ate"y hae increasing"y required !y persona" attention. >fee" that in fairness to the co!pany and to the peop"e under !ysuperision > shou"d re"inquish the position to so!eone whocan deote fu""+ti!e to the 5iision.> wish to than/ you for a"" the encourage!ent and assistanceyou hae e@tended to !e and to !y group during !y "ong

association with


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actua""y had no hand in the preparation of the ouchersino"ed in the i!puted ano!a"y, this tas/ being entrusted tothe branch office secretary, 4i"et *inete, se"ected and hired bySun 4ife.She a"so contends that in dis!issing her, Sun 4ife fai"ed toobsere procedura" due process. She was not furnished withcopies of the audit report of her supposed"y fraudu"ent use ofher specia" fund aai"!ents, and was neer afforded anopportunity to be heard by Sun 4ife officia"s prior to ter!inationof her e!p"oy!ent.1%She assai"s the decisions of the N4RC astainted with bias and grae abuse of discretion, particu"ar"y in

ignoring the (delu*e of evidence( adduced before the "aborarbiter.9n the other hand, Sun 4ife and its co+respondents argue thatthe cha""enged decisions were in fact precise"y based onCarungcong#s so+ca""ed (delu*e of evidence,( and thus cannotin any sense be dee!ed (capricious, whi!sica", arbitrary ordespotic.(1$They ino/e the fa!i"iar ru"e that the findings offact of ad!inistratie agencies are accorded respect, if notindeed fina"ity, by this Court. The assert that urisprudence andCarungcong#s ad!issions before the 4abor Arbiter negate thee@istence of an e!p"oy!ent re"ationship3 that in truthCarungcong was du"y infor!ed of the charge of fraud anddishonesty, a charge supported by adequate proof3 and thattherefore the cance""ation of the business re"ationship betweenthe! and Carungcong was a"id and "ega", effected with dueprocess and for ust cause.The facts ino"ed in this case are "aid bare in considerab"edetai", and the issues identified and e@tensie"y discussed bythe parties, in their p"eadings, na!e"y: respondents# Co!!entdated )ay 1, &031'petitioner#s Rep"y thereto datedSepte!ber &&, &03 "respondents# Reoinder of 9ctober 2&,&03"1their )anifestation dated Noe!ber ;, &0,sub!itting copies of their e@hibits in the proceedings a;uo3""Co!!ent on the petition of the 9ffice of the So"icitor*enera", dated Noe!ber ;;, &0"7E in which it !a/esco!!on cause with Carungcong3 petitioner#s Sur+Reoinderdated 5ece!ber &&, &03"*her Counter+)anifestation of5ece!ber &&, &0, sub!itting copies of her own e@hibits inthe proceedings be"ow3"9respondents# Rep"y $dated January 8,

&B% to the Co!!ent of the So"icitor *enera"#s 9ffice3"+

theAddendu! to Respondents# Co!!ent, dated Ju"y &0,&'3"%and petitioner#s (Rep"y toriate Respondents# #Addendu!# fi"ed without "eae of court,with )otion to -@punge . . ,( dated Ju"y 27, &'."$

The record does indeed disc"ose what Carungcong ca""s a(delu*e of evidence( sub!itted by the parties before the 4abor

Arbiter. Carungcong sub!itted two $;% affidaits of hers$-@hibits A and


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do!inated person. She !ust be dee!ed as haing transactedwith Sun 4ife#s e@ecuties on !ore or "ess equa" ter!s.These considerations i!pe" concurrence with the conc"usionsof the cha""enged decision and reso"ution of respondentCo!!ission which considered Carungcong as an independentcontractor, not an e!p"oyee of Sun 4ife. >t is significant thatthis issue of the precise status of Carungcong as anindependent contractor, eident"y dee!ed decisie byrespondent Co!!ission, was discussed by it at so!e "engthnot once, but twice, first in its 5ecision of Ju"y ;, &1, andthen in its second 5ecision of 9ctober ;8, &1 reso"ing the

separate !otions for reconsideration of the parties.>n the 5ecision of Ju"y ;, &1, the Co!!ission said:*+

A thorough reiew of the facts and eidence adduced onrecord co!pe"s us to ru"e in the negatie $on (the question ofwhether or not co!p"ainant Carungcong is a regu"ar e!p"oyeeof respondents(%. Co!p"ainant, to our considered iew is not,contrary to the findings erroneous"y !ade in the cha""engeddecision be"ow, a regu"ar e!p"oyee of respondents but anindependent contractor.?er contractsPagree!ents since she started as insuranceagent, then as unit !anager and fina""y as businessPbranch!anager e@press"y say so. ndeed, as aderted to by herein respondents, thecontractsPagree!ents entered into by the parties herein are the"aws between the said parties.)oreoer, it is true that co!p"ainant Carungcong#s duties andfunctions deried fro! her then e@isting agree!entsPcontractswere !ade subect to ru"es and regu"ations issued byrespondent co!pany, and for that !atter, hae "i/ewise been!ade subect of certain "i!itations i!posed by said respondentco!pany. Nonethe"ess, these are not sufficient to accord theeffect of estab"ishing e!p"oyer+e!p"oyee re"ationship absent inthis case. This is so because the insurance business is not ustany other ordinary business. >t is one that is i!bued with pub"ic

interest hence, it !ust be goerned buy the ru"es andregu"ations of the state. The contro"s aderted to byco!p"ainant are "atent in the /ind of business she is into andare !ain"y ai!ed at pro!oting the resu"ts the parties so desireand do not necessari"y create any e!p"oyer+e!p"oyeere"ationships, where the e!p"oyers# contro"s hae to interfere inthe !ethods and !eans by which the e!p"oyee wou"d "i/e toe!p"oy to arrie at the desired resu"ts.This is not without any urisprudentia" support as ear"ier pointedout by herein respondent. The Supre!e Court in the case of>nsu"ar $ife Assu!ance Co.,$"d.ve!sus #a"ional $abo!Rela"ions Coission and Melencio asiao$&' SCRA 10%e!phatica""y discoursed in this wise:4ogica""y, the "ine shou"d be drawn between ru"es that !ere"ysere as guide"ines towards the achiee!ent of the !utua""y

desired resu"t without dictating the !eans or !ethods to bee!p"oyed in attaining it, and those that contro" to fi@ the!ethodo"ogy and bind or restrict the party hired to the use ofsuch !eans. Thefi!s", :ic ai only "o p!oo"e "e !esul",c!ea"e no eploye!/eployee !ela"ionsipun"i/e the second,which address both the resu"t and the !eans used to achieeit. The dis"inc"ion ac;ui!es pa!"icula! !elevance in "e case ofan en"e!p!ise affec"ed :i" public in"e!es" and is on "a"accoun" sub@ec" "o !e*ula"ion by "e S"a"e :i" !espec", no"only "o "e !ela"ions be":een insu!e! and insu!ed bu" also "o"e in"e!nal affai!s of "e Insu!ance copany. Ru"es andregu"ations goerning the conduct of the business are proidedfor in the >nsurance Code and enforced by the >nsuranceCo!!issioner. >t is therefore usua" and e@pected for aninsurance co!pany to pro!u"gate a set of ru"es to guide its

co!!ission agents in se""ing its po"icies that they !ay not runafou" of the "aw and what it requires or prohibits. $-!phasissupp"ied.%Co!p"ainant haing ad!itted that she was free to wor/ as shep"eases, at the p"ace and ti!e she fe"t conenient for her to doso is not un"i/e )e"encio trained the! in the fie"d or recruit.( $pp. ;8+;, TSN,2& )ay &&, -!phasis supp"ied.%=or that !atter, co!p"ainant Carungcong was neer paid afi@ed wage or sa"ary but was !ain"y paid by co!!issions,depending on the "ee" and o"u!e of her perfor!ancePproduction, the nu!ber of trained agents, when

ta/en in and assigned to her, being responsib"e for her addedinco!e as she gets a certain percentage fro! the said agents#production as part of her co!!ission.>n the second udg!ent of 9ctober ;8, &1,*%respondentCo!!ission stressed the fo""owing points:

Arrayed against co!p"ainant#s argu!ents that she wasrespondent#s e!p"oyee are her own ad!issions during the tria"on the !erits. Said different"y, her ad!issions co!p"ete"ydi"uted the supposed potency or her theory that an e!p"oyer+e!p"oyee re"ationship e@isted. Co!p"ainant ad!itted that herrenu!erations were based on her "ee"s of production $TSN,June ;', &&, page '; et seq.%. She ad!itted she cou"d so"icitinsurance anywhere or at any ti!e she dee!ed conenient$TSN, )ay 2&, &&, page 22 et seq.%. She neer accountedfor her wor/ing ti!e $TSN, )ay ;7, &&, page BB et seq.% orthat dai"y wor/ing hours( were neer app"icab"e to her situation$TSN, )ay ;7, &&, page '0%. She gae unequioca"testi!ony that she perfor!ed her duties as a New r= 6>r!ins o4 t5e (inors, ROMMELRAMO/, ROY RODERIC: RAMO/, n! RON RAYMONDRAMO/,petitioners,s.COURT OF APPEAL/, DE LO/ /ANTO/ MEDICALCENTER, DR. ORLINO O/A:A n! DR. PERFECTAGUTIERRE


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T?- ?9N9RAN>NCR-AS>N* T?- AAR5 9= 5A)A*-S >N =AV9R 9=-T>T>9N-RS.0

>n the Reso"ution of =ebruary ;&, ;777, this Court denied the!otions for reconsideration of priate respondents 5rs.?osa/a and *utierre. They then fi"ed their respectie second!otions for reconsideration. The hi"ippine Co""ege ofSurgeons fi"ed its etition+in+>nterention contending in the!ain that this Court erred in ho"ding priate respondent 5r.?osa/a "iab"e under the captain of the ship doctrine. Accordingto the interenor, said doctrine had "ong been abandoned in

the Gnited States in recognition of the dee"op!ents in !odern!edica" and hospita" practice.BThe Court noted thesep"eadings in the Reso"ution of Ju"y &', ;777.'

9n )arch &, ;77&, the Court heard the ora" argu!ents of theparties, inc"uding the interenor. A"so present during thehearing were the a!icii curiae: 5r. =e"ipe A. -stre""a, Jr.,Consu"tant of the hi"ippine Charity Sweepsta/es, for!er5irector of the hi"ippine *enera" ?ospita" and for!erSecretary of ?ea"th3 5r. >"u!inada T. Ca!agay, resident ofthe hi"ippine Society of Anesthesio"ogists, >nc. and rofessorand Vice+Chair for Research, 5epart!ent of Anesthesio"ogy,Co""ege of )edicine+hi"ippine *enera" ?ospita", Gniersity ofthe hi"ippines3 and 5r. 4ydia ). -gay, rofessor and Vice+Chair for Acade!ics, 5epart!ent of Anesthesio"ogy, Co""ege of)edicine+hi"ippine *enera" ?ospita", Gniersity of thehi"ippines.The Court enu!erated the issues to be reso"ed in this caseas fo""ows:&. ?-T?-R 9R N9T 5R. 9R4>N9 ?9SAOA $SGR*-9N%>S 4>A*-NC-3;. ?-T?-R 9R N9T 5R. -R=-CTA *GT>-RR-Q$AN-ST?-S>949*>ST% >S 4>A*-NC-3 AN52. ?-T?-R 9R N9T T?- ?9S>TA4 $5-49S SANT9S)-5>CA4 C-NT-R% >S 4>A*-NC- C9))>TT-5 R V>S>T>N*C9NSG4TANT SGR*-9N AN5 AN-ST?-S>949*>ST.8

e sha"" first reso"e the issue pertaining to priate respondent5r. *utierre. She !aintains that the Court erred in finding herneg"igent and in ho"ding that it was the fau"ty intubation which

was the pro@i!ate cause of -r"indaHs co!atose condition. Thefo""owing obectie facts a""eged"y negate a finding ofneg"igence on her part: &% That the outco!e of the procedurewas a co!atose patient and not a dead one3 ;% That thepatient had a cardiac arrest3 and 2% That the patient wasreied fro! that cardiac arrest.>n effect, 5r. *utierre insiststhat, contrary to the finding of this Court, the intubation sheperfor!ed on -r"inda was successfu".Gnfortunate"y, 5r. *utierreH c"ai! of "ac/ of neg"igence on herpart is be"ied by the records of the case. >t has been sufficient"yestab"ished that she fai"ed to e@ercise the standards of care inthe ad!inistration of anesthesia on a patient. 5r. -gayen"ightened the Court on what these standards are:@ @ @ hat are the standards of care that an anesthesio"ogistshou"d do before we ad!inister anesthesia The initia" step is

the preparation of the patient for surgery and this is a pre+operatie ea"uation because the anesthesio"ogist isresponsib"e for deter!ining the !edica" status of the patient,dee"oping the anesthesia p"an and acquainting the patient orthe responsib"e adu"t particu"ar"y if we are referring with thepatient or to adu"t patient who !ay not hae, who !ay haeso!e !enta" handicaps of the proposed p"ans. e do pre+operatie ea"uation because this proides for an opportunityfor us to estab"ish identification and persona" acquaintancewith the patient. >t a"so !a/es us hae an opportunity toa""eiate an@iety, e@p"ain techniques and ris/s to the patient,gien the patient the choice and estab"ishing consent toproceed with the p"an. And "ast"y, once this has been agreedupon by a"" parties concerned the ordering of pre+operatie!edications. And fo""owing this "ine at the end of the ea"uation

we usua""y co!e up on writing, docu!entation is eryi!portant as far as when we train an anesthesio"ogist wea"ways e!phasie this because we need records for ourprotection, we"", records. And it entai"s haing brief su!!ary ofpatient history and physica" findings pertinent to anesthesia,p"an, organie as a prob"e! "ist, the p"an anesthesia technique,the p"an post operatie, pain !anage!ent if appropriate,specia" issues for this particu"ar patient. There are needs forspecia" care after surgery and if it so it !ust be written down

there and a request !ust be !ade /nown to proper authoritiesthat such and such care is necessary. And the request for!edica" ea"uation if there is an indication. hen we as/ for acardio+pu"!onary c"earance it is not in fact to te"" the! if thispatient is going to be fit for anesthesia, the decision to gieanesthesia rests on the anesthesio"ogist. hat we as/ the! isactua""y to gie us the functiona" capacity of certain syste!swhich !aybe affected by the anesthetic agent or the techniquethat we are going to use. -= JGST>C-:)eaning to say, the patient beca!e co!atose after so!einterention, professiona" acts hae been done by 5r.*utierre

ATTL. *ANA:Les, Lour ?onor.

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C?>-= JGST>C-:>n other words, the co!atose status was a consequence ofso!e acts perfor!ed by 5. *utierre

ATTL. *ANA:>t was a consequence of the we"", $interrupted%C?>-= JGST>C-:

An acts perfor!ed by her, is that not correctATTL. *ANA:Les, Lour ?onor.C?>-= JGST>C-:Than/ you.&'

hat is "eft to be deter!ined therefore is whether -r"indaHshap"ess condition was due to any fau"t or neg"igence on thepart of 5r. *utierre whi"e she $-r"inda% was under the "atterHscare. 5r. *utierre !aintains that the bronchospas! andcardiac arrest resu"ting in the patientHs co!atose condition wasbrought about by the anaphy"actic reaction of the patient toThiopenta" Sodiu! $pentotha"%.&8>n the 5ecision, we e@p"ainedwhy we found 5r. *utierreH theory unacceptab"e. >n the firstp"ace, 5r. -duardo Ja!ora, the witness who was presented tosupport her $5r. *utierre% theory, was a pu"!ono"ogist. Thus,he cou"d not be considered an authority on anesthesia practiceand procedure and their co!p"ications.&

Second"y, there was no eidence on record to support thetheory that -r"inda dee"oped an a""ergic reaction to pentotha".5r. Ca!agay en"ightened the Court as to the !anifestations ofan a""ergic reaction in this wise:5R. CA)A*AL:

A"" right, "et us qua"ify an a""ergic reaction. >n !edica"ter!ino"ogy an a""ergic reaction is so!ething which is not usua"response and it is further qua"ified by the re"ease of a hor!oneca""ed hista!ine and hista!ine has an effect on a"" the organsof the body genera""y re"ease because the substance thatentered the body reacts with the particu"ar ce"", the !ass ce"",and the !ass ce"" secretes this hista!ine. >n a way it is so!efor! of response to ta/e away that which is not !ine, which isnot part of the body. So, hista!ine has !u"tip"e effects on thebody. So, one of the effects as you wi"" see you wi"" haeredness, if you hae an a""ergy you wi"" hae tearing of theeyes, you wi"" hae swe""ing, ery crucia" swe""ing so!eti!es of

the "arynges which is your oice bo@ !ain airway, that swe""ing!ay be enough to obstruct the entry of air to the trachea andyou cou"d a"so hae contraction, constriction of the s!a""erairways beyond the trachea, you see you hae the trachea thisway, we brought so!e isua" aids but unfortunate"y we do nothae a proector. And then you hae the s!a""er airways, thebronchi and then eentua""y into the !ass of the "ungs youhae the bronchus. The difference is that these tubes haea"so in their wa""s !usc"es and this particu"ar /ind of !usc"es iss!ooth !usc"e so, when hista!ine is re"eased they c"ose up"i/e this and that pheno!enon is /nown as bronco spas!.?oweer, the effects of hista!ine a"so on b"ood esse"s aredifferent. They di"ate b"ood esse" open up and the patient orwhoeer has this hista!ine re"ease has hypertension or "owb"ood pressure to a point that the patient !ay hae decrease

b"ood supp"y to the brain and !ay co""apse so, you !ay haepeop"e who hae this.;7

These sy!pto!s of an a""ergic reaction were not shown tohae been e@tant in -r"indaHs case. As we he"d in our 5ecision,(no eidence of stridor, s/in reactions, or wheeing so!e ofthe !ore co!!on acco!panying signs of an a""ergic reaction

appears on record. No "aboratory data were eer presentedto the court.(;&

5r. *utierre, howeer, insists that she successfu""y intubated-r"inda as eidenced by the fact that she was reied aftersuffering fro! cardiac arrest. 5r. *utierre fau"ts the Court forgiing credence to the testi!ony of Cru on the !atter of thead!inistration of anesthesia when she $Cru%, being a nurse,was a""eged"y not qua"ified to testify thereon. Rather, 5r.*utierre inites the CourtHs attention to her synopsis on what

transpired during -r"indaHs intubation:12D1- p.. atient was inducted with sodiu! pentotha" ;.0$;07 !g% gien by s"ow >V. 7; was started by !as/. Afterpentotha" inection this was fo""owed by >V inection of Norcuron1!g. After ; !inutes 7; was gien by positie pressure forabout one !inute. >ntubation with endotrachea" tube '.0 ! india!eter was done with s"ight difficu"ty $short nec/ M s"ight"ypro!inent upper teeth% chest was e@a!ined for breath soundsM chec/ed if equa" on both sides. The tube was then anchored

to the !outh by p"aster M cuff inf"ated. -thrane ; with 7; 1"iters was gien. V. Cyanosis s"ow"ydisappeared M 7; continuous"y gien M assisted positiepressure. 4aboratory e@a!s done $see resu"ts in chart%.atient was transferred to >CG for further !anage!ent.;;

=ro! the foregoing, it can be a""eged"y seen that there was nowithdrawa" $e@tubation% of the tube. And the fact that thecyanosis a""eged"y disappeared after pure o@ygen wassupp"ied through the tube proed that it was proper"y p"aced.The Court has reserations on giing eidentiary weight to theentries purported"y contained in 5r. *utierreH synopsis. >t issignificant to note that the said record prepared by 5r.*utierre was !ade on"y after -r"inda was ta/en out of theoperating roo!. The standard practice in anesthesia is thateery sing"e act that the anesthesio"ogist perfor!s !ust berecorded. >n 5r. *utierreH case, she cou"d not account for at"east ten $&7% !inutes of what happened during thead!inistration of anesthesia on -r"inda. The fo""owinge@change between 5r. -stre""a, one of the a!icii curiae, and5r. *utierre is instructie:5R. -STR-44AD Lou !entioned that there were two $;% atte!pts in theintubation period5R. *GT>-RR-QLes.D There were two atte!pts. >n the first atte!pt was the

tube inserted or was the "aryngoscope on"y inserted, whichwas insertedA A"" the "aryngoscope.D A"" the "aryngoscope. re!e!ber rightso!ewhere in the re+direct, a certain "awyer, you were as/edthat you did a first atte!pt and the question was did youwithdraw the tube And you said you neer withdrew thetube, is that right

A Les.D Les. And so if you neer withdrew the tube then therewas no, there was no insertion of the tube during that firstatte!pt. Now, the other thing that we hae to sett"e here is when cyanosis occurred, is it recorded in the anesthesia recordwhen the cyanosis, in your recording when did the cyanosisoccur

A $sic%D >s it a standard practice of anesthesia that whateeryou do during that period or fro! the ti!e of induction to theti!e that you probab"y get the patient out of the operating roo!that eery sing"e action that you do is so recorded in youranesthesia record

A > was not ab"e to record eerything > did not hae ti!eany!ore because > did that after the, when the patient wasabout to "eae the operating roo!. hen there was secondcyanosis a"ready that was the $interrupted%D hen was the first cyanosis

A The first cyanosis when > was $interrupted%D hat ti!e, !ore or "ess

A > thin/ it was &;:&0 or &;:&B.D e"", if the record wi"" show you started induction at

&;:&0A Les, Lour ?onor.D And the first !edication you gae was what

A The first !edication, no, first the patient waso@ygenated for around one to two !inutes.D Les, so, that is about &;:&2

A Les, and then, > as/ed the resident physician to startgiing the pentotha" ery s"ow"y and that was around one!inute.

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D So, that is about &;:&2 no, &;:&0, &;:&'A Les, and then, after one !inute another o@ygenationwas gien and after $interrupted%D &;:&8

A Les, and then after giing the o@ygen we start the!enorcure which is a re"a@ant. After that re"a@ant $interrupted%D After that re"a@ant, how "ong do you wait before you doany !anipu"ation

A Gsua""y you wait for two !inutes or three !inutes.D So, if our esti!ate of the ti!e is accurate we are now!ore or "ess &;:&, is that right

A )aybe.D &;:&. And at that ti!e, what wou"d hae been done tothis patient

A After that ti!e you e@a!ine the, if there is re"a@ation ofthe aw which you push it downwards and when > saw that thepatient was re"a@ because that !onorcure is a re"a@ant, youcannot intubate the patient or insert the "aryngoscope if it is not/eeping hi! re"a@. So, !y first atte!pt when > put the"aryngoscope on > saw the trachea was deep"y interior"y. So,what > did as/ (ai!ap a"a i"o a.( So, > re!oed the"aryngoscope and o@ygenated again the patient.D So, !ore or "ess you atte!pted to do an intubation afterthe first atte!pt as you c"ai!ed that it was on"y the"aryngoscope that was inserted.

A Les.D And in the second atte!pt you inserted the"aryngoscope and now possib"e intubation

A Les.D And at that point, you !ade a re!ar/, what re!ar/ didyou !a/e

A > said (ai!ap a"a i"o( when the first atte!pt > did notsee the trachea right away. That was when > $interrupted%D That was the first atte!pt

A Les.D hat about the second atte!pt

A 9n the second atte!pt > was ab"e to intubate right awaywithin two to three seconds.D At what point, for purposes of discussion withoutaccepting it, at what point did you !a/e the co!!ent (na

ai!ap a"a "o in"uba"e, ali a"a an* pinasuBan(A > did not say (ali a"a an* pinasuBan( > neer said that.D e"", ust for the infor!ation of the group here there!ar/s > a! !a/ing is based on the docu!ents that wereforwarded to !e by the Supre!e Court. That is why forpurposes of discussion > a! trying to c"arify this for the sa/e ofen"ighten!ent. So, at what point did you eer !a/e thatco!!ent

A hich one, sirD The (ai!ap in"uba"e i"o( assu!ing that you$interrupted%

A Iyon lan*, that is what > on"y said (ai!apin"uba"e$interrupted%D At what point

A hen the first atte!pt when > inserted the "aryngoscope

for the first ti!e.D So, when you c"ai! that at the first atte!pt you insertedthe "aryngoscope, right

A Les.D a! ustwondering why there were no recordings during the period andthen of course the second cyanosis, after the first cyanosis. >thin/ that was the ti!e 5r. ?osa/a ca!e in

A No, the first cyanosis $interrupted%.;2

e cannot thus gie fu"" credence to 5r. *utierreH synopsis in"ight of her ad!ission that it does not fu""y ref"ect the eentsthat transpired during the ad!inistration of anesthesia on-r"inda. As pointed out by 5r. -stre""a, there was a ten+!inutegap in 5r. *utierreH synopsis, i.e., the ita" signs of -r"indawere not recorded during that ti!e. The absence of these datais particu"ar"y significant because, as found by the tria" court, itwas the absence of o@ygen supp"y for four $1% to fie $0%!inutes that caused -r"indaHs co!atose condition.9n the other hand, the Court has no reason to disbe"iee thetesti!ony of Cru. As we stated in the 5ecision, she isco!petent to testify on !atters which she is capab"e ofobsering such as, the state!ents and acts of the physicianand surgeon, e@terna" appearances and !anifest conditionswhich are obserab"e by any one.;1Cru, -r"indaHs sister+in+"aw, was with her inside the operating roo!. )oreoer, being a

nurse and 5ean of the Capito" )edica" Center Schoo" ofNursing at that, she is not entire"y ignorant of anestheticprocedure. Cru narrated that she heard 5r. *utierre re!ar/,(An* i!ap a/in"uba"e ni"o, ali ya"a an* pa*BaBapasoB. lualaBi an* "iyan.( She obsered that the nai"beds of -r"indabeca!e b"uish and thereafter -r"inda was p"aced intrende"enburg position.;0Cru further aerred that she noticedthat the abdo!en of -r"inda beca!e distended.;B

The cyanosis $b"uish disco"oration of the s/in or !ucous!e!branes caused by "ac/ of o@ygen or abnor!a" he!og"obinin the b"ood% and en"arge!ent of the sto!ach of -r"indaindicate that the endotrachea" tube was i!proper"y insertedinto the esophagus instead of the trachea. Consequent"y,o@ygen was de"iered not to the "ungs but to thegastrointestina" tract. This conc"usion is supported by the fact

that -r"inda was p"aced in trende"enburg position. Thisindicates that there was a decrease of b"ood supp"y to thepatientHs brain. The brain was thus te!porari"y depried ofo@ygen supp"y causing -r"inda to go into co!a.The inury incurred by petitioner -r"inda does not nor!a""yhappen absent any neg"igence in the ad!inistration ofanesthesia and in the use of an endotrachea" tube. As wasnoted in our 5ecision, the instru!ents used in thead!inistration of anesthesia, inc"uding the endotrachea" tube,were a"" under the e@c"usie contro" of priate respondents 5r.*utierre and 5r. ?osa/a.;'>n 4oss vs. !id:ell,;8whichino"ed a patient who suffered brain da!age due to thewrongfu" ad!inistration of anesthesia, and een before theschedu"ed !astoid operation cou"d be perfor!ed, the OansasSupre!e Court app"ied the doctrine of !es ipsa lo;ui"u!,

reasoning that the inury to the patient therein was one whichdoes not ordinari"y ta/e p"ace in the absence of neg"igence inthe ad!inistration of an anesthetic, and in the use ande!p"oy!ent of an endotrachea" tube. The court went on to saythat (FoKrdinari"y a person being put under anesthesia is notrendered decerebrate as a consequence of ad!inistering suchanesthesia in the absence of neg"igence. Gpon these facts andunder these circu!stances, a "ay!an wou"d be ab"e to say, asa !atter of co!!on /now"edge and obseration, that the

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consequences of professiona" treat!ent were not as such aswou"d ordinari"y hae fo""owed if due care had beene@ercised.(;Considering the app"ication of the doctrine of !esipsa lo;ui"u!, the testi!ony of Cru was proper"y giencredence in the case at bar.=or his part, 5r. ?osa/a !ain"y contends that the Court erredin finding hi! neg"igent as a surgeon by app"ying the Captain+of+the+Ship doctrine.275r. ?osa/a argues that the trend inGnited States urisprudence has been to reect said doctrine in"ight of the dee"op!ents in !edica" practice. ?e points outthat anesthesio"ogy and surgery are two distinct and

specia"ied fie"ds in !edicine and as a surgeon, he is notdee!ed to hae contro" oer the acts of 5r. *utierre. Asanesthesio"ogist, 5r. *utierre is a specia"ist in her fie"d andhas acquired s/i""s and /now"edge in the course of her trainingwhich 5r. ?osa/a, as a surgeon, does not possess.2&?e statesfurther that current A!erican urisprudence on the !atterrecognies that the trend towards specia"iation in !edicinehas created situations where surgeons do not a"ways hae theright to contro" a"" personne" within the operatingroo!,2;especia""y a fe""ow specia"ist.22

5r. ?osa/a cites the case of >oas v. Ralei* Gene!al?ospi"al,21which ino"ed a suit fi"ed by a patient who "ost hisoice due to the wrongfu" insertion of the endotrachea" tubepreparatory to the ad!inistration of anesthesia in connectionwith the "aparoto!y to be conducted on hi!. The patient suedboth the anesthesio"ogist and the surgeon for the inurysuffered by hi!. The Supre!e Court of Appea"s of estVirginia he"d that the surgeon cou"d not be he"d "iab"e for the"oss of the patientHs oice, considering that the surgeon did nothae a hand in the intubation of the patient. The court reectedthe app"ication of the (Captain+of+the+Ship 5octrine,( citing thefact that the fie"d of !edicine has beco!e specia"ied suchthat surgeons can no "onger be dee!ed as haing contro" oerthe other personne" in the operating roo!. >t he"d that (FaKnassign!ent of "iabi"ity based on actua" contro" !ore rea"istica""yref"ects the actua" re"ationship which e@ists in a !odernoperating roo!.(20?ence, on"y the anesthesio"ogist whoinserted the endotrachea" tube into the patientHs throat washe"d "iab"e for the inury suffered by the "atter.

This contention fai"s to persuade.That there is a trend in A!erican urisprudence to do away withthe Captain+of+the+Ship doctrine does not !ean that this Courtwi"" ipso fac"o fo""ow said trend. 5ue regard for the pecu"iarfactua" circu!stances obtaining in this case ustify theapp"ication of the Captain+of+the+Ship doctrine. =ro! the factson record it can be "ogica""y inferred that 5r. ?osa/a e@erciseda certain degree of, at the ery "east, superision oer theprocedure then being perfor!ed on -r"inda.=irst, it was 5r. ?osa/a who reco!!ended to petitioners theserices of 5r. *utierre. >n effect, he represented topetitioners that 5r. *utierre possessed the necessaryco!petence and s/i""s. 5rs. ?osa/a and *utierre had wor/edtogether since &''. heneer 5r. ?osa/a perfor!ed asurgery, he wou"d a"ways engage the serices of 5r. *utierre

to ad!inister the anesthesia on his patient.2B

Second, 5r. ?osa/a hi!se"f ad!itted that he was the attendingphysician of -r"inda. Thus, when -r"inda showed signs ofcyanosis, it was 5r. ?osa/a who gae instructions to ca"" foranother anesthesio"ogist and cardio"ogist to he"p resuscitate-r"inda.2'

Third, it is conceded that in perfor!ing their responsibi"ities tothe patient, 5rs. ?osa/a and *utierre wor/ed as a tea!.Their wor/ cannot be p"aced in separate watertightco!part!ents because their duties intersect with each other.28

hi"e the professiona" serices of 5r. ?osa/a and 5r.*utierre were secured pri!ari"y for their perfor!ance of actswithin their respectie fie"ds of e@pertise for the treat!ent ofpetitioner -r"inda, and that one does not e@ercise contro" oerthe other, they were certain"y not co!p"ete"y independent of

each other so as to abso"e one fro! the neg"igent acts of theother physician.That they were wor/ing as a !edica" tea! is eident fro! thefact that 5r. ?osa/a was /eeping an eye on the intubation ofthe patient by 5r. *utierre, and whi"e doing so, he obseredthat the patientHs nai"s had beco!e dus/y and had to ca"" 5r.*utierreHs attention thereto. The Court a"so notes that thecounse" for 5r. ?osa/a ad!itted that in practice, theanesthesio"ogist wou"d a"so hae to obsere the surgeonHs acts

during the surgica" process and ca""s the attention of thesurgeon wheneer necessary2in the course of the treat!ent.The duties of 5r. ?osa/a and those of 5r. *utierre in thetreat!ent of petitioner -r"inda are therefore not as c"ear+cut asrespondents c"ai! the! to be. 9n the contrary, it is quiteapparent that they hae a co!!on responsibi"ity to treat thepatient, which responsibi"ity necessitates that they ca"" eachotherHs attention to the condition of the patient whi"e the otherphysician is perfor!ing the necessary !edica" procedures.>t is equa""y i!portant to point out that 5r. ?osa/a was re!issin his duty of attending to petitioner -r"inda pro!pt"y, for he

arried !ore than three $2% hours "ate for the schedu"edoperation. The colecys"ec"oywas set for June &', &80 at:77 a.!., but he arried at 54S)C on"y at around &;:&7 p.!.>n rec/"ess disregard for his patientHs we"" being, 5r. ?osa/aschedu"ed two procedures on the sa!e day, ust thirty !inutesapart fro! each other, at different hospita"s. Thus, when thefirst procedure $protoscopy% at the Sta. Teresita ?ospita" didnot proceed on ti!e, -r"inda was /ept in a state of uncertaintyat the 54S)C.The unreasonab"e de"ay in petitioner -r"indaHs schedu"edoperation subected her to continued staration andconsequent"y, to the ris/ of acidosis,17or the condition ofdecreased a"/a"inity of the b"ood and tissues, !ar/ed by sic/"ysweet breath, headache, nausea and o!iting, and isua"disturbances.1&The "ong period that 5r. ?osa/a !ade -r"indawait for hi! certain"y aggraated the an@iety that she !usthae been fee"ing at the ti!e. >t cou"d be safe"y said that heran@iety aderse"y affected the ad!inistration of anesthesia onher. As e@p"ained by 5r. Ca!agay, the patientHs an@iety usua""ycauses the outpouring of adrena"ine which in turn resu"ts inhigh b"ood pressure or disturbances in the heart rhyth!:5R. CA)A*AL:@ @ @ re+operatie !edication has three !ain functions: 9neis to a""eiate an@iety. Second is to dry up the secretions andThird is to re"iee pain. Now, it is ery i!portant to a""eiatean@iety because an@iety is associated with the outpouring ofcertain substances for!ed in the body ca""ed adrena"in. hena patient is an@ious there is an outpouring of adrena"in whichwou"d hae aderse effect on the patient. 9ne of it is high

b"ood pressure, the other is that he opens hi!se"f todisturbances in the heart rhyth!, which wou"d hae adersei!p"ications. So, we wou"d "i/e to a""eiate patientHs an@iety!ain"y because he wi"" not be in contro" of his body there cou"dbe aderse resu"ts to surgery and he wi"" be opened up3 a /nifeis going to open up his body. @ @ @1;

5r. ?osa/a cannot now c"ai! that he was entire"y b"a!e"ess ofwhat happened to -r"inda. ?is conduct c"ear"y constituted abreach of his professiona" duties to -r"inda:C?>-= JGST>C-:Two other points. The first, 5octor, you were ta"/ing aboutan@iety, wou"d you consider a patient#s stay on the operatingtab"e for three hours sufficient enough to aggraate or !agnifyhis or her an@iety5R. CA)A*AL:

Les.C?>-= JGST>C-:>n other words, > understand that in this particu"ar case thatwas the case, three hours waiting and the patient was a"readyon the operating tab"e $interrupted%5R. CA)A*AL:Les.C?>-= JGST>C-:ou"d you therefore conc"ude that the surgeon contributed tothe aggraation of the an@iety of the patient5R. CA)A*AL:That this operation did not ta/e p"ace as schedu"ed is a"ready asource of an@iety and !ost operating tab"es are ery narrowand that patients are usua""y at ris/ of fa""ing on the f"oor sothere are restraints that are p"aced on the! and they are

neer, neer "eft a"one in the operating roo! by the!se"esspecia""y if they are a"ready pre+!edicated because they !aynot be aware of so!e of their !oe!ent that they !a/e whichwou"d contribute to their inury.C?>-= JGST>C-:>n other words due di"igence wou"d require a surgeon to co!eon ti!e5R. CA)A*AL:> thin/ it is not een due di"igence it is courtesy.

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C?>-= JGST>C-:Courtesy.5R. CA)A*AL:

And care.C?>-= JGST>C-:5uty as a !atter of fact5R. CA)A*AL:Les, Lour ?onor.12

5r. ?osa/a#s irresponsib"e conduct of arriing ery "ate for theschedu"ed operation of petitioner -r"inda is io"atie, not on"y ofhis duty as a physician (to sere the interest of his patients with

the greatest so"icitude, giing the! a"ways his best ta"ent ands/i"",(11but a"so of Artic"e & of the Cii" Code which requires aperson, in the perfor!ance of his duties, to act with ustice andgie eeryone his due.

Anent priate respondent 54S)CHs "iabi"ity for the resu"tinginury to petitioner -r"inda, we he"d that respondent hospita" isso"idari"y "iab"e with respondent doctors therefor under Artic"e;&87 of the Cii" Code10since there e@ists an e!p"oyer+e!p"oyee re"ationship between priate respondent 54S)Cand 5rs. *utierre and ?osa/a:>n other words, priate hospita"s, hire, fire and e@ercise rea"contro" oer their attending and isiting (consu"tant( staff. hi"e(consu"tants( are not, technica""y e!p"oyees, @ @ @ the contro"e@ercised, the hiring and the right to ter!inate consu"tants a""fu"fi"" the i!portant ha""!ar/s of an e!p"oyer+e!p"oyeere"ationship, with the e@ception of the pay!ent of wages. >nassessing whether such a re"ationship in fact e@ists, the contro"test is deter!ining. @ @ @1B

54S)C howeer contends that app"ying the four+fo"d test indeter!ining whether such a re"ationship e@ists between it andthe respondent doctors, the inescapab"e conc"usion is that54S)C cannot be considered an e!p"oyer of the respondentdoctors.>t has been consistent"y he"d that in deter!ining whether ane!p"oyer+e!p"oyee re"ationship e@ists between the parties, thefo""owing e"e!ents !ust be present: $&% se"ection andengage!ent of serices3 $;% pay!ent of wages3 $2% the powerto hire and fire3 and $1% the power to contro" not on"y the end tobe achieed, but the !eans to be used in reaching such an

end.1'

54S)C !aintains that first, a hospita" does not hire or engagethe serices of a consu"tant, but rather, accredits the "atter andgrants hi! or her the prii"ege of !aintaining a c"inic andPorad!itting patients in the hospita" upon a showing by theconsu"tant that he or she possesses the necessaryqua"ifications, such as accreditation by the appropriate board$dip"o!ate%, eidence of fe""owship and references.18Second, itis not the hospita" but the patient who pays the consu"tantHs feefor serices rendered by the "atter.1Third, a hospita" does notdis!iss a consu"tant3 instead, the "atter !ay "ose his or heraccreditation or prii"eges granted by the hospita".074ast"y,54S)C argues that when a doctor refers a patient forad!ission in a hospita", it is the doctor who prescribes thetreat!ent to be gien to said patient. The hospita"Hs ob"igation

is "i!ited to proiding the patient with the preferred roo!acco!!odation, the nutritiona" diet and !edicationsprescribed by the doctor, the equip!ent and faci"itiesnecessary for the treat!ent of the patient, as we"" as theserices of the hospita" staff who perfor! the !inisteria" tas/sof ensuring that the doctorHs orders are carried out strict"y.0&

After a carefu" consideration of the argu!ents raised by54S)C, the Court finds that respondent hospita"Hs position onthis issue is !eritorious. There is no e!p"oyer+e!p"oyeere"ationship between 54S)C and 5rs. *utierre and ?osa/awhich wou"d ho"d 54S)C so"idari"y "iab"e for the inury sufferedby petitioner -r"inda under Artic"e ;&87 of the Cii" Code.

As e@p"ained by respondent hospita", that the ad!ission of aphysician to !e!bership in 54S)CHs !edica" staff as actie orisiting consu"tant is first decided upon by the Credentia"s

Co!!ittee thereof, which is co!posed of the heads of thearious specia"ty depart!ents such as the 5epart!ent of9bstetrics and *yneco"ogy, ediatrics, Surgery with thedepart!ent head of the particu"ar specia"ty app"ied for aschair!an. The Credentia"s Co!!ittee then reco!!ends to54S)C#s )edica" 5irector or ?ospita" Ad!inistrator theacceptance or reection of the app"icant physician, and saiddirector or ad!inistrator a"idates the co!!ittee#sreco!!endation.0;Si!i"ar"y, in cases where a discip"inary

action is "odged against a consu"tant, the sa!e is initiated bythe depart!ent to who! the consu"tant concerned be"ongs andfi"ed with the -thics Co!!ittee consisting of the depart!entspecia"ty heads. The !edica" directorPhospita" ad!inistrator!ere"y acts as e@+officio !e!ber of said co!!ittee.Neither is there any showing that it is 54S)C which pays anyof its consu"tants for !edica" serices rendered by the "atter totheir respectie patients. )oreoer, the contract between theconsu"tant in respondent hospita" and his patient is separateand distinct fro! the contract between respondent hospita" andsaid patient. The first has for its obect the rendition of !edica"

serices by the consu"tant to the patient, whi"e the secondconcerns the proision by the hospita" of faci"ities and sericesby its staff such as nurses and "aboratory personne" necessaryfor the proper treat!ent of the patient.=urther, no eidence was adduced to show that the inurysuffered by petitioner -r"inda was due to a fai"ure on the part ofrespondent 54S)C to proide for hospita" faci"ities and staffnecessary for her treat!ent.=or these reasons, we reerse the finding of "iabi"ity on the partof 54S)C for the inury suffered by petitioner -r"inda.=ina""y, the Court a"so dee!s it necessary to !odify the awardof da!ages to petitioners in iew of the superening eent ofpetitioner -r"indaHs death. >n the assai"ed 5ecision, the Courtawarded actua" da!ages of 9ne )i""ion Three ?undred =iftyTwo Thousand esos $&,20;,777.77% to coer the e@pensesfor petitioner -r"indaHs treat!ent and care fro! the date ofpro!u"gation of the 5ecision up to the ti!e the patient e@piresor suries.02>n addition thereto, the Court awarded te!perateda!ages of 9ne )i""ion =ie ?undred Thousand esos$&,077,777.77% in iew of the chronic and continuing nature ofpetitioner -r"indaHs inury and the certainty of further pecuniary"oss by petitioners as a resu"t of said inury, the a!ount ofwhich, howeer, cou"d not be !ade with certainty at the ti!e ofthe pro!u"gation of the decision. The Court ustified suchaward in this !anner:9ur ru"es on actua" or co!pensatory da!ages genera""yassu!e that at the ti!e of "itigation, the inury suffered as aconsequence of an act of neg"igence has been co!p"eted andthat the cost can be "iquidated. ?oweer, these proisions

neg"ect to ta/e into account those situations, as in this case,where the resu"ting inury !ight be continuing and possib"efuture co!p"ications direct"y arising fro! the inury, whi"ecertain to occur, are difficu"t to predict.>n these cases, the a!ount of da!ages which shou"d beawarded, if they are to adequate"y and correct"y respond to theinury caused, shou"d be one which co!pensates for pecuniary"oss incurred and proed, up to the ti!e of tria"3 andone whichwou"d !eet pecuniary "oss certain to be suffered but whichcou"d not, fro! the nature of the case, be !ade with certainty.>n other words, te!perate da!ages can and shou"d beawarded on top of actua" or co!pensatory da!ages ininstances where the inury is chronic and continuing. Andbecause of the unique nature of such cases, no inco!patibi"ityarises when both actua" and te!perate da!ages are proided

for. The reason is that these da!ages coer two distinctphases.

As it wou"d not be equitab"eEand certain"y not in the bestinterests of the ad!inistration of usticeEfor the icti! in suchcases to constant"y co!e before the courts and ino/e their aidin see/ing adust!ents to the co!pensatory da!agespreious"y awardedEte!perate da!ages are appropriate. Thea!ount gien as te!perate da!ages, though to a certaine@tent specu"atie, shou"d ta/e into account the cost of propercare.>n the instant case, petitioners were ab"e to proide on"y ho!e+based nursing care for a co!atose patient who has re!ainedin that condition for oer a decade. ?aing pre!ised our awardfor co!pensatory da!ages on the a!ount proided bypetitioners at the onset of "itigation, it wou"d be now !uch !ore

in step with the interests of ustice if the a"ue awarded forte!perate da!ages wou"d a""ow petitioners to proide opti!a"care for their "oed one in a faci"ity which genera""y specia"iesin such care. They shou"d not be co!pe""ed by direcircu!stances to proide substandard care at ho!e withoutthe aid of professiona"s, for anything "ess wou"d be gross"yinadequate. Gnder the circu!stances, an award of&,077,777.77 in te!perate da!ages wou"d therefore bereasonab"e.01

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T5e 48t t5t 8o(p=innt 3s (!e s>)e8t torespon!ents R>=es n! Re6>=tions, =ie3ise, !oes not!etr8t 4ro( t5e )sen8e o4 e(p=o@er?e(p=o@eere=tions5ip. As he"d by the Supre!e Court, IThe "ine shou"dbe drawn between ru"es that !ere"y sere as guide"inestowards the achiee!ent of the !utua""y desired resu"t withoutdictating the !eans or !ethods to be e!p"oyed in attaining it,and those that contro" or fi@ the !ethodo"ogy and bind orrestrict the party hired to the use of such !eans. The first,which ai! on"y to pro!ote the resu"t, create no e!p"oyer+e!p"oyee re"ationship un"i/e the second, which address both

the resu"t and the !eans to achiee it. $>nsu"ar 4ife AssuranceCo., 4td. s. N4RC, et a"., *.R. No. 81181, Noe!ber &0,&8%.@ @ @ $-!phasis supp"ied%F'K

S9NQA appea"ed to the N4RC. 9n ;1 =ebruary &8, theN4RC rendered a 5ecision affir!ing the 4abor ArbiterHsdecision. S9NQA fi"ed a !otion for reconsideration, which theN4RC denied in its Reso"ution dated 2 Ju"y &8.9n B 9ctober &8, S9NQA fi"ed a specia" cii" action forcertiorari before the Court of Appea"s assai"ing the decisionand reso"ution of the N4RC. 9n ;B )arch &, the Court of

Appea"s rendered a 5ecision dis!issing the case.F8K

?ence, this petition.T5e R>=in6s o4 t5e NLRC n! Co>rt o4 Appe=sThe Court of Appea"s affir!ed the N4RCHs finding that noe!p"oyer+e!p"oyee re"ationship e@isted between S9NQA and

A


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production staff !eetings.F2&KA


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against her three $2% e!p"oyers. A!ong the respondents washerein petitioner Ange"ito 4. 4aaro $I4aaro%, proprietor ofRoya" Star )ar/eting $IRoya" Star%, which is engaged in thebusiness of se""ing ho!e app"iances.F2K 4audato a""eged thatdespite her e!p"oy!ent as sa"es superisor of the sa"esagents for Roya" Star fro! Apri" of &' to )arch of &8B,4aaro had fai"ed during the said period, to report her to theSSC for co!pu"sory coerage or re!it 4audatoHs socia"security contributions.F1K

4aaro denied that 4audato was a sa"es superisor of

Roya" Star, aerring instead that she was a !ere sa"es agentwho! he paid pure"y on co!!ission basis. 4aaro a"so!aintained that 4audato was not subected todefinite hours and conditions of wor/. As such, 4audato cou"dnot be dee!ed an e!p"oyee of Roya" Star.F0K

After the parties sub!itted their respectie positionpapers, the SSC pro!u"gated a Reso"utionFBK dated 8Noe!ber &0 ru"ing in faor of 4audato.F'K App"ying theIcontro" test, it he"d that 4audato was an e!p"oyee of Roya"Star, and ordered Roya" Star to pay the unre!itted socia"security contributions of 4audato in the a!ount of =ieThousand Seen esos and Thirty =ie Centaos $0,77'.20%,together with the pena"ties tota"ing Twenty Two Thousand Two?undred -ighteen esos and =ifty =our Centaos$;;,;&8.01%. >n addition, Roya" Star was !ade "iab"e to payda!ages to the SSC in the a!ount of =ifteen Thousand Si@?undred -ighty esos and Seen Centaos $&0,B87.7'% fornot reporting 4audato for socia" security coerage, pursuant toSection ;1 of the Socia" Security 4aw.F8K

After 4aaroHs )otion for Reconsideration before the SSCwas denied,FK 4aaro fi"ed a etition for Reiew with the Courtof Appea"s. 4aaro reiterated that 4audato was !ere"y a sa"esagent who was paid pure"y on co!!ission basis, not inc"udedin the co!pany payro"", and who neither obsered regu"arwor/ing hours nor acco!p"ished ti!e cards.

>n its assai"ed 5ecision, the Court of Appea"s noted that

4aaroHs argu!ents were a reprise of those a"ready presentedbefore the SSC.F&7K )oreoer, 4aaro had not co!e forwardwith particu"ars and specifics in his petition to show that theCo!!issionHs ru"ing is not supported by substantia" eidence.F&&K Thus, the appe""ate court affir!ed the finding that 4audatowas an e!p"oyee of Roya" Star, and hence entit"ed tocoerage under the Socia" Security 4aw.

t is an accepted doctrine that for the purposes of coerageunder the Socia" Security Act, the deter!ination of e!p"oyer+e!p"oyee re"ationship warrants the app"ication of the Icontro"test, that is, whether the e!p"oyer contro"s or has reseredthe right to contro" the e!p"oyee, not on"y as to the resu"t of thewor/ done, but a"so as to the !eans and !ethods by which thesa!e is acco!p"ished.F&1K The SSC, as sustained by theCourt of Appea"s, app"ying the contro" test found that 4audatowas an e!p"oyee of Roya" Star. e find no reersib"e error.

4aaroHs argu!ents are nothing !ore but a !erereiteration of argu!ents unsuccessfu""y posed before two

bodies: the SSC and the Court of Appea"s. They "i/ewise putto issue factua" questions a"ready passed upon twice be"ow,rather than questions of "aw appropriate for reiew under aRu"e 10 petition. The deter!ination of an e!p"oyer+e!p"oyeere"ationship depends heai"y on the particu"ar factua"circu!stances attending the professiona" interaction of theparties. The Court is not a trier of factsF&0K and accords greatweight to the factua"

findings of "ower courts or agencies whose function is toreso"e factua" !atters.F&BK4aaroHs argu!ents !ay be dispensed with by app"yingprecedents. Suffice it to say, the fact that 4audato was paid byway of co!!ission does not prec"ude the estab"ish!ent of ane!p"oyer+e!p"oyee re"ationship. >n *repa"ife . Judico,F&'K theCourt uphe"d the e@istence of an e!p"oyer+e!p"oyeere"ationship between the insurance co!pany and its agents,despite the fact that the co!pensation that the agents onco!!ission receied was not paid by the co!pany but by the

inestor or the person insured.F&8K The re"eant factorre!ains, as stated ear"ier, whether the (e!p"oyer( contro"s orhas resered the right to contro" the (e!p"oyee( not on"y as tothe resu"t of the wor/ to be done but a"so as to the !eans and!ethods by which the sa!e is to be acco!p"ished.F&K

Neither does it fo""ow that a person who does not obserenor!a" hours of wor/ cannot be dee!ed an e!p"oyee. >nCos!opo"itan =unera" ?o!es, >nc. . )aa"at,F;7K the e!p"oyersi!i"ar"y denied the e@istence of an e!p"oyer+e!p"oyeere"ationship, as the c"ai!ant according to it, was a Isuperisoron co!!ission basis who did not obsere nor!a" hours ofwor/. This Court dec"ared that there was an e!p"oyer+e!p"oyee re"ationship, noting that IFtheK superisor, a"thoughco!pensated on co!!ission basis, FisK e@e!pt fro! theobserance of nor!a" hours of wor/ for his co!pensation is!easured by the nu!ber of sa"es he !a/es.F;&K

>t shou"d a"so be e!phasied that the SSC, a"so asuphe"d by the Court of Appea"s, found that 4audato was asa"es superisor and not a !ere agent.F;;K As such, 4audatooersaw and superised the sa"es agents of the co!pany, andthus was subect to the contro" of !anage!ent as to how shei!p"e!ents its po"icies and its end resu"ts. e are disinc"inedto reerse this finding, in the absence of counterai"ingeidence fro! 4aaro and a"so in "ight of the fact that4audatoHs ca""ing cards fro! Roya" Star indicate that she isindeed a sa"es superisor.

The finding of the SSC that 4audato was an e!p"oyee ofRoya" Star is supported by substantia"

eidence. The SSC e@a!ined the cash ouchers issued byRoya" Star to 4audato,F;2K ca""ing cards of Roya" Stardeno!inating 4audato as a ISa"es Superisor of the co!pany,F;1K and Certificates of Appreciation issued by Roya" Star to4audato in recognition of her unse"fish and "oya" efforts inpro!oting the co!pany.F;0K 9n the other hand, 4aaro hasfai"ed to present any conincing contrary eidence, re"yinginstead on his bare assertions. The Court of Appea"s correct"yru"ed that petitioner has not sufficient"y shown that the SSCHsru"ing was not supported by substantia" eidence.

A piece of docu!entary eidence appreciated by the SSC is

)e!orandu! dated 2 )ay &87 of Teresita 4aaro, *enera")anager of Roya" Star, directing that no co!!issions were tobe gien on a"" I!ain office sa"es fro! wa"/+in custo!ers andenoining sa"es!en and sa"es superisors to obsere this newpo"icy.F;BK The )e!orandu! einces the fact that, contrary to4aaroHs c"ai!, Roya" Star e@ercised contro" oer its sa"essuperisors or agents such as 4audato as to the !eans and!ethods through which these personne" perfor!ed their wor/.=ina""y, 4aaro ino/es our ru"ing in the &8' case of Socia"Security Syste! . Court of Appea"sF;'K that a person whowor/s for another at his own p"easure, subect to definite hoursor conditions of wor/, and is co!pensated according to theresu"t of his effort is not an e!p"oyee.F;8K The citation is oddfor 4aaro to re"y upon, considering that in the cited case, the

Court affir!ed the e!p"oyee+e!p"oyer re"ationship between asa"es agent and the cigarette fir! whose products he so"d.F;Kerhaps 4aaro !eant instead to cite our &B ru"ing in thesi!i"ar"y+tit"ed case of Socia" Security Syste! . Court of

Appea"s,F27K a"so cited in the "ater epony!ous ru"ing, whosedisposition is !ore in accord with 4aaroHs argu!ent.Let, the circu!stances in the &B case are ery different fro!those at bar. Ru"ing on the question whether oc/eys were

19


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considered e!p"oyees of the )ani"a Joc/ey C"ub, the Courtnoted that the oc/eys were actua""y subected to the contro" ofthe racing steward, whose authority in turn was defined by the*a!es and A!use!ents -5 and the assai"ed5ecision of the Court of Appea"s dated ;7 Noe!ber &8 is

A==>R)-5. Costs against petitioner.S9 9R5-R-5.

%. #G.R. No. 19%"1*. >ne %, "9PILIPPINE GLOBAL COMMUNICATION/, INC.,petitioner,vs. RICARDO DE ;ERA, respondent.D E C I / I O NGARCIA, J.2n ti!e, hi"co! fi"ed a !otion for reconsideration but wasdenied by the appe""ate court in its reso"ution of &2 =ebruary

;772.F&&K

?ence, hi"co!Hs present recourse on its !ain sub!issionthat +T?- C9GRT 9= A-A4S -RR-5 >N SGSTA>N>N* T?-5-C>S>9N 9= T?- NAT>9NA4 4A9NSC9))>SS>9N AN5 R-N5-R>N* T?- DG-ST>9N-55-C>S>9N AN5 R-S94GT>9N >N A AL T?AT >S N9T >N

ACC9R5 >T? T?- =ACTS AN5 A4>CASRG5-NC- ?>C? 5>ST>N*G>S? 4-*>T>)AT- J9N* A*R--)-NTS =R9) T?- -)49L-R+-)49L-- R-4AT>9NS?>.e GRANT.Gnder Ru"e 10 of the Ru"es of Court, on"y questions of "aw !aybe reiewed by this Court in decisions rendered by the Court of

Appea"s. There are instances, howeer, where the Courtdeparts fro! this ru"e and reiews findings of fact so thatsubstantia" ustice !ay be sered. The e@ceptiona" instancesare where:I@@@ @@@ @@@ $&% the conc"usion is a finding grounded entire"yon specu"ation, sur!ise and conecture3 $;% the inference !ade

is !anifest"y !ista/en3 $2% there is grae abuse of discretion3$1% the udg!ent is based on a !isapprehension of facts3 $0%the findings of fact are conf"icting3 $B% the Court of Appea"swent beyond the issues of the case and its findings arecontrary to the ad!issions of both appe""ant and appe""ees3 $'%the findings of fact of the Court of Appea"s are contrary tothose of the tria" court3 $8% said findings of facts are conc"usionswithout citation of specific eidence on which they are based3$% the facts set forth in the petition as we"" as in the petitionerHs!ain and rep"y briefs are not disputed by the respondents3 and$&7% the findings of fact of the Court of Appea"s are pre!isedon the supposed absence of eidence and contradicted by theeidence on record.F&;K

As we see it, the partiesH respectie sub!issions reo"e on thepri!ordia" issue of whether an e!p"oyer+e!p"oyee re"ationshipe@ists between petitioner and respondent, the e@istence ofwhich is, in itse"f, a question of fact F&2Kwe"" within the proinceof the N4RC. Nonethe"ess, gien the rea"ity that the N4RCHsfindings are at odds with those of the "abor arbiter, the Court,consistent with its ru"ing iniene vs. #a"ional $abo!Rela"ions Coission

,F&1Kis constrained to "oo/ deeper into theattendant circu!stances obtaining in this case, as appearingon record.>n a "ong "ine of decisions, F&0Kthe Court, in deter!ining thee@istence of an e!p"oyer+e!p"oyee re"ationship, has inariab"yadhered to the four+fo"d test, to wit: F&K the se"ection andengage!ent of the e!p"oyee3 F;K the pay!ent of wages3 F2Kthe power of dis!issa"3 and F1K the power to contro" thee!p"oyeeHs conduct, or the so+ca""ed Icontro" test, considered

to be the !ost i!portant e"e!ent.App"ying the four+fo"d test to this case, we initia""y find that itwas respondent hi!se"f who sets the para!eters of what hisduties wou"d be in offering his serices to petitioner. This isborne by no "ess than his &0 )ay &8& "etterF&BK which, in fu"",reads:I)ay &0, &8&)rs. Ade"a 4. VicenteVice resident, >ndustria" Re"ationshi"Co!, aseo de Ro@as)a/ati, )etro )ani"a) a d a ! :> sha"" hae the ti!e and effort for the position of Co!panyphysician with your corporation if you dee!ed it necessary. >hae the necessary qua"ifications, training and e@perience

required by such position and > a! confident that > can serethe best interests of your e!p"oyees, !edica""y.)y p"an of wor/s and targets sha"" coer the duties andresponsibi"ities required of a practitioner in industria" !edicinewhich inc"udes the fo""owing:&. App"ication of preentie !edicine inc"uding periodicchec/+up of e!p"oyees3;. ?o"ding of c"inic hours in the !orning and afternoon for atota" of fie $0% hours dai"y for consu"tation serices toe!p"oyees32. )anage!ent and treat!ent of e!p"oyees that !aynecessitate hospita"iation inc"uding e!ergency cases andaccidents31. Conduct pre+e!p"oy!ent physica" chec/+up of prospectiee!p"oyees with no additiona" !edica" fee3

0. Conduct ho!e isits wheneer necessary3B. Attend to certain !edica" ad!inistratie functions such asacco!p"ishing !edica" for!s, ea"uating conditions ofe!p"oyees app"ying for sic/ "eae of absence andsubsequent"y issuing proper certification, and a"" !attersreferred which are !edica" in nature.9n the subect of co!pensation for the serices that > proposeto render to the corporation, you !ay state an offer based on

your be"ief that > can ery we"" qua"ify for the ob haing wor/edwith your organiation for so!eti!e now.> sha"" be ery gratefu" for whateer /ind attention you !aye@tend on this !atter and hoping that it wi"" !erit acceptance, >re!ainVery tru"y yours,$signed%R>CAR59 V. 5- V-RA, ).5.Significant"y, the foregoing "etter was substantia""y the basis ofthe "abor arbiterHs finding that there e@isted no e!p"oyer+e!p"oyee re"ationship between petitioner and respondent, in

addition to the fo""owing factua" settings:The fact that the co!p"ainant was not considered an e!p"oyeewas recognied by the co!p"ainant hi!se"f in a signed "etter tothe respondent dated Apri" ;&, &8; attached as Anne@ * tothe respondentHs Rep"y and Reoinder. Duoting the pertinentportion of said "etter:UTo carry out your !e!o effectie"y and to proide a syste!aticand wor/ab"e ti!e schedu"e which wi"" sere the best interestsof both the present and absent e!p"oyee, !ay > propose ane@tended two+hour serice $&:77+2:77 .).% during whichperiod > can deote a!p"e ti!e to both groups depending uponthe urgency of the situation. > sha"" readust !y priateschedu"e to be aai"ab"e for the herein proposed e@tendedhours, shou"d you consider this proposa".

As regards co!pensation for the additiona" ti!e and sericesthat > sha"" render to the e!p"oyees, it is dependent on yourea"uation of the !erit of !y proposa" and your confidence on!y abi"ity to carry out efficient"y said proposa".HThe tenor of this "etter indicates that the co!p"ainant wasproposing to e@tend his ti!e with the respondent and see/ingadditiona" co!pensation for said e@tension. This shows thatthe respondent ?>4C9) did not hae contro" oer theschedu"e of the co!p"ainant as it FisK the co!p"ainant who isproposing his own schedu"e and as/ing to be paid for thesa!e. This is proof that the co!p"ainant understood that hisre"ationship with the respondent ?>4C9) was a retainedphysician and not as an e!p"oyee. >f he were an e!p"oyee hecou"d not negotiate as to his hours of wor/.The co!p"ainant is a 5octor of )edicine, and presu!ab"y, a

we""+educated person. Let, the co!p"ainant, in his positionpaper, is c"ai!ing that he is not conersant with the "aw and didnot gie !uch attention to his ob tit"e+ on a Uretainer basisH.


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respondent need not re!it anything to the SSS in faor of theco!p"ainant.F&8K

C"ear"y, the e"e!ents of an e!p"oyer+e!p"oyee re"ationshipare wanting in this case. e !ay add that the records arerep"ete with eidence showing that respondent had to bi""petitioner for his !onth"y professiona" fees. F&K >t si!p"y runsagainst the grain of co!!on e@perience to i!agine that anordinary e!p"oyee has yet to bi"" his e!p"oyer to receie hissa"ary.e note, too, that the power to ter!inate the partiesHre"ationship was !utua""y ested on both. -ither !ay

ter!inate the arrange!ent at wi"", with or without cause.F;7K

=ina""y, re!ar/ab"y absent fro! the partiesH arrange!ent isthe e"e!ent of contro", whereby the e!p"oyer has resered theright to contro" the e!p"oyee not on"y as to the resu"t of thewor/ done but a"so as to the !eans and !ethods by which thesa!e is to be acco!p"ished.F;&K

?ere, petitioner had no contro" oer the !eans and !ethodsby which respondent went about perfor!ing his wor/ at theco!pany pre!ises. ?e cou"d een e!bar/ in the priatepractice of his profession, not to !ention the fact thatrespondentHs wor/ hours and the additiona" co!pensationtherefor were negotiated upon by the parties. F;;K>n fine, theparties the!se"es practica""y agreed on eery ter!s andconditions of respondentHs engage!ent, which therebynegates the e"e!ent of contro" in their re"ationship. =or sure,respondent has neer cited een a sing"e instance whenpetitioner interfered with his wor/.Let, despite the foregoing, a"" of which are e@tant on record,both the N4RC and the Court of Appea"s ru"ed that respondentis petitionerHs regu"ar e!p"oyee at the ti!e of his separation.art"y says the appe""ate court in its assai"ed decision:= i4 it is not8overe! )@ t5e pre8e!in6 pr6rp52 Provi!e!, T5t, n@e(p=o@ee 35o 5s ren!ere! t =est one -10 @er o4servi8e, whether such is continuous or bro/en, s5== )e8onsi!ere! re6>=r 3it5 respe8t to t5e 8tivit@ in 35i855e is e(p=o@e!and his e!p"oy!ent sha"" continue whi"e suchactiity [email protected]""y, the position of co!pany physician, in the case

of petitioner, is usua""y necessary and desirab"e because theneed for !edica" attention of e!p"oyees cannot be foreseen,hence, it is necessary to hae a physician at hand. >n fact, thei!portance and desirabi"ity of a physician in a co!panypre!ises is recognied by Art. &0' of the 4abor Code, whichrequires the presence of a physician depending on the nu!berof e!p"oyees and in the case at bench, in petitionerHs case, asfound by pub"ic respondent, petitioner e!p"oys !ore than 077e!p"oyees.*oing bac/ to Art. ;87 of the 4abor Code, it was !ade thereinc"ear that the proisions of a written agree!ent to the contrarynotwithstanding or the e@istence of a !ere ora" agree!ent, ifthe e!p"oyee is engaged in the usua" business or trade of thee!p"oyer, !ore so, that he rendered serice for at "east oneyear, such e!p"oyee sha"" be considered as

a re6>=re!p"oyee. riate respondent herein has been withpetitioner since &8& and his e!p"oy!ent was not for aspecific proect or underta/ing, the period of which was pre+deter!ined and neither the wor/ or serice of priaterespondent seasona". $-!phasis by the CA itse"f%.e disagree to the foregoing ratiocination.The appe""ate courtHs pre!ise that regu"ar e!p"oyees arethose who perfor! actiities which are desirab"e andnecessary for the business of the e!p"oyer is not

deter!inatie in this case. =or, we ta/e it that any agree!ent!ay proide that one party sha"" render serices for and inbeha"f of another, no !atter how necessary for the "atterHsbusiness, even 3it5o>t )ein6 5ire! s n e(p=o@ee. Thisset+up is precise"y true in the case of an independentcontractorship as we"" as in an agency agree!ent. >ndeed,

Artic"e ;87 of the 4abor Code, quoted by the appe""ate court, isnot the yardstic/ for deter!ining the e@istence of ane!p"oy!ent re"ationship. As it is, the proision !ere"ydistinguishes between two $;% /inds of e!p"oyees, i.e., regu"arand casua". >t does not app"y where, as here, the ery

e@istence of an e!p"oy!ent re"ationship is in dispute.F;2K


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regu"ar e!p"oyee. The ery phrase that they !ay be engagedIon retained basis, reo"ts against the idea that thisengage!ent gies rise to an e!p"oyer+e!p"oyee re"ationship.ith the recognition of the fact that petitioner consistent"yengaged the serices of respondent on a retainer basis, asshown by their arious Iretainership contracts, so canpetitioner put an end, with or without cause, to theirretainership agree!ent as therein proided.F;'K

e note, howeer, that een as the contracts entered into bythe parties inariab"y proide for a B7+day notice require!entprior to ter!ination, the sa!e was not co!p"ied with by

petitioner when it ter!inated on &' 5ece!ber &B theerba""y+renewed retainership agree!ent, effectie at the c"oseof business hours of 2& 5ece!ber &B.NSTAT-5.No pronounce!ent as to costs./O ORDERED.

$. G.R. No. 1+*19+ /epte()er "+, "+

AB/?CBN BROADCA/TING CORPORATION, petitioner,vs.MARLYN NAt se""s and dea"s in or otherwise uti"ies the airti!e itgenerates fro! its radio and te"eision operations. >t has afranchise as a broadcasting co!pany, and was "i/ewise issueda "icense and authority to operate by the Nationa"Te"eco!!unications Co!!ission.

etitioner e!p"oyed respondents Naareno, *eron,5eiparine, and 4erasan as production assistants $As% ondifferent dates. They were assigned at the news and pub"icaffairs, for arious radio progra!s in the Cebu ncentieay, Sic/ 4eae ay, and &2th )onth ay with 5a!agesagainst the petitioner before the N4RC. The 4abor Arbiterdirected the parties to sub!it their respectie position papers.Gpon respondentsH fai"ure to fi"e their position papers within thereg"e!entary period, 4abor Arbiter Jose *. *utierre issued an9rder dated Apri" 27, ;77&, dis!issing the co!p"aint without

preudice for "ac/ of interest to pursue the case. Respondentsreceied a copy of the 9rder on )ay &B, ;77&.' >nstead of re+fi"ing their co!p"aint with the N4RC within &7 days fro! )ay&B, ;77&, they fi"ed, on June &&, ;77&, an -arnest )otion toRefi"e Co!p"aint with )otion to Ad!it osition aper and)otion to Sub!it Case =or Reso"ution.8 The 4abor Arbitergranted this !otion in an 9rder dated June &8, ;77&, andforthwith ad!itted the position paper of the co!p"ainants.Respondents !ade the fo""owing a""egations:

23
http://sc.judiciary.gov.ph/jurisprudence/2005/jun2005/157214.htm#_ftn27http://sc.judiciary.gov.ph/jurisprudence/2005/jun2005/157214.htm#_ftn27http://sc.judiciary.gov.ph/jurisprudence/2005/jun2005/157214.htm#_ftn28http://sc.judiciary.gov.ph/jurisprudence/2005/jun2005/157214.htm#_ftn28http://sc.judiciary.gov.ph/jurisprudence/2005/jun2005/157214.htm#_ftn29http://sc.judiciary.gov.ph/jurisprudence/2005/jun2005/157214.htm#_ftn27http://sc.judiciary.gov.ph/jurisprudence/2005/jun2005/157214.htm#_ftn28http://sc.judiciary.gov.ph/jurisprudence/2005/jun2005/157214.htm#_ftn29


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25/38

B% angutana 4ang

c. Co!p"ainant *eron assists in the progra!:

&% 9n )ondays and Tuesdays:

$a% Gnanith

$b% Serbisyo de Area"o

$c% Arang/ada $eening edition%

$d% + )ar"yn Naareno &;,7;0.77

>>> + Jennifer 5eiparine &;,7;0.77

>V + Josephine Sanche 4eraan &;,7;0.77

18,&77.77

p"us ten $&7% percent AttorneyHs =ees or a T9TA4 aggregatea!ount of -S9S: =>=TL T9 T?9GSAN5 N>N- ?GN5R-5T-N $0;,&7.77%.

Respondent Veneranda C. Sy is abso"ed fro! any "iabi"ity.

S9 9R5-R-5.&2

?oweer, the 4abor Arbiter did not award !oney benefits asproided in the Cn its appea", petitioner a""eged the fo""owing:

&. That the 4abor Arbiter erred in reiing or re+opening thiscase which had "ong been dis!issed without preudice for!ore than thirty $27% ca"endar days3

;. That the 4abor Arbiter erred in depriing the respondent ofits Constitutiona" right to due process of "aw3

2. That the 4abor Arbiter erred in denying respondentHs )otionfor Reconsideration on an inter"ocutory order on the groundthat the sa!e is a prohibited p"eading3

1. That the 4abor Arbiter erred when he ru"ed that theco!p"ainants are regu"ar e!p"oyees of the respondent3

0. That the 4abor Arbiter erred when he ru"ed that theco!p"ainants are entit"ed to &2th !onth pay, serice incentie"eae pay and sa"ary differentia"3 and

B. That the 4abor Arbiter erred when he ru"ed thatco!p"ainants are entit"ed to attorneyHs fees.&1

9n Noe!ber &1, ;77;, the N4RC rendered udg!ent!odifying the decision of the 4abor Arbiter. The fa""o of thedecision reads:

?-R-=9R-, pre!ises considered, the decision of 4aborArbiter Jose *. *utierre dated 27 Ju"y ;77& is S-T AS>5-and VACAT-5 and a new one is entered 9R5-R>N*respondent A


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;. To de"ier to the co!p"ainants Two ?undred Thirty+Three$;22% sac/s of rice as of 27 Septe!ber ;77; representing theirrice subsidy in the Cn the case at bar, the N4RC did not co!!it a grae abuse ofits discretion in giing Artic"e ;;2;& of the 4abor Code a "ibera"app"ication to preent the !iscarriage of ustice. Technica"ity

shou"d not be a""owed to stand in the way of equitab"y andco!p"ete"y reso"ing the rights and ob"igations of the parties.;;e hae he"d in a catena of cases that technica" ru"es are notbinding in "abor cases and are not to be app"ied strict"y if theresu"t wou"d be detri!enta" to the wor/ing!an.;2

Ad!itted"y, respondents fai"ed to perfect their appea" fro! thedecision of the 4abor Arbiter within the reg"e!entary periodtherefor. ?oweer, petitioner perfected its appea" within the

26


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period, and since petitioner had fi"ed a ti!e"y appea", theN4RC acquired urisdiction oer the case to gie due course toits appea" and render the decision of Noe!ber &1, ;77;.Case "aw is that the party who fai"ed to appea" fro! thedecision of the 4abor Arbiter to the N4RC can sti"" participate ina separate appea" ti!e"y fi"ed by the aderse party as thesituation is considered to be of greater benefit to bothparties.;1

e find no !erit in petitionerHs contention that the 4abor Arbiterabused his discretion when he ad!itted respondentsH position

paper which had been be"ated"y fi"ed. >t bears stressing thatthe 4abor Arbiter is !andated by "aw to use eery reasonab"e!eans to ascertain the facts in each case speedi"y andobectie"y, without technica"ities of "aw or procedure, a"" in theinterest of due process.;0 >ndeed, as stressed by the appe""atecourt, respondentsH fai"ure to sub!it a position paper on ti!e isnot a ground for stri/ing out the paper fro! the records, !uch"ess for dis!issing a co!p"aint.;B 4i/ewise, there is si!p"y notruth to petitionerHs assertion that it was denied due processwhen the 4abor Arbiter ad!itted respondentsH position paperwithout requiring it to fi"e a co!!ent before ad!itting saidposition paper. The essence of due process in ad!inistratieproceedings is si!p"y an opportunity to e@p"ain oneHs side oran opportunity to see/ reconsideration of the action or ru"ingco!p"ained of. 9bious"y, there is nothing in the records thatwou"d suggest that petitioner had abso"ute "ac/ of opportunityto be heard.;' etitioner had the right to fi"e a !otion forreconsideration of the 4abor ArbiterHs ad!ission ofrespondentsH position paper, and een fi"e a Rep"y thereto. >nfact, petitioner fi"ed its position paper on Apri" ;, ;77&. >t !ustbe stressed that Artic"e ;87 of the 4abor Code was encoded inour statute boo/s to hinder the circu!ention by unscrupu"ouse!p"oyers of the e!p"oyeesH right to security of tenure byindiscri!inate"y and abso"ute"y ru"ing out a"" written and ora"agree!ents inhar!onious with the concept of regu"are!p"oy!ent defined therein.;8

e quote with approa" the fo""owing pronounce!ent of theN4RC:

The co!p"ainants, on the other hand, contend thatrespondents assai"ed the 4abor ArbiterHs order dated &8 June;77& as io"atie of the N4RC Ru"es of rocedure and as suchis io"atie of their right to procedura" due process. That whi"esuggesting that an 9rder be instead issued by the 4abor

Arbiter for co!p"ainants to refi"e this case, respondentsi!p"ied"y sub!it that there is not any substantia" da!age orpreudice upon the refi"ing, een so, respondentsH suggestionac/now"edges co!p"ainants right to prosecute this case, a"beitwith the burden of repeating the sa!e procedure, thus,entai"ing additiona" ti!e, efforts, "itigation cost and preciousti!e for the Arbiter to repeat the sa!e process twice.RespondentHs suggestion, betrays its notion of pro"onging,rather than pro!oting the ear"y reso"ution of the case.

A"though the 4abor Arbiter in his 9rder dated &8 June ;77&which reied and re+opened the dis!issed case withoutpreudice beyond the ten $&7% day reg"e!entary period hadinadertent"y fai"ed to fo""ow Section &B, Ru"e V, Ru"esrocedure of the N4RC which states:

(A party !ay fi"e a !otion to reie or re+open a casedis!issed without preudice within ten $&7% ca"endar days fro!receipt of notice of the order dis!issing the sa!e3 otherwise,his on"y re!edy sha"" be to re+fi"e the case in the arbitrationbranch of origin.(

the sa!e is not a serious f"aw that had preudiced therespondentsH right to due process. The case can sti"" be refi"ed

because it has not yet prescribed. Anyway, Artic"e ;;& of the4abor Code proides:

(>n any proceedings before the Co!!ission or any of the4abor Arbiters, the ru"es of eidence preai"ing in courts of "awor equity sha"" not be contro""ing and it is the spirit and intentionof this Code that the Co!!ission and its !e!bers and the4abor Arbiters sha"" use eery and a"" reasonab"e !eans toascertain the facts in each case speedi"y and obectie"y and

without regard to technica"ities of "aw or procedure, a"" in theinterest of due process.(

The ad!ission by the 4abor Arbiter of the co!p"ainantsHosition aper and Supp"e!enta" )anifestation which werebe"ated"y fi"ed ust on"y shows that he acted within hisdiscretion as he is enoined by "aw to use eery reasonab"e!eans to ascertain the facts in each case speedi"y andobectie"y, without regard to technica"ities of "aw or procedure,a"" in the interest of due process. >ndeed, the fai"ure to sub!it aposition paper on ti!e is not a ground for stri/ing out the paper

fro! the records, !uch "ess for dis!issing a co!p"aint in thecase of the co!p"ainant. $Gniersity of >!!acu"ate Conceptions. G>C Teaching and Non+Teaching ersonne" -!p"oyees,*.R. No. &11'7;, Ju"y 2&, ;77&%.

(>n ad!itting the respondentsH position paper a"beit "ate, the4abor Arbiter acted within her discretion. >n fact, she isenoined by "aw to use eery reasonab"e !eans to ascertainthe facts in each case speedi"y and obectie"y, withouttechnica"ities of "aw or procedure, a"" in the interest of dueprocess(. $an"i"io s. N4RC, ;8& SCRA 02%.

The respondents were gien by the 4abor Arbiter theopportunity to sub!it position paper. >n fact, the respondentshad fi"ed their position paper on ; Apri" ;77&. hat is !ateria"in the co!p"iance of due process is the fact that the parties aregien the opportunities to

labor 32 pages

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