[ G.R. No. 230576. October 05, 2020 ] 887 Phil. 71
THIRD DIVISION
[ G.R. No. 230576. October 05, 2020 ]
ABS-CBN CORPORATION, PETITIONER, VS. JAIME C. CONCEPCION, RESPONDENT. D E C I S I O N
ZALAMEDA, J.:
An independent contractor enjoys independence and freedom from control and supervision of his principal. In order to be considered an independent contractor and not an employee of a television network, it must be shown that an OB van driver was hired because of his unique skills and talents, and the television network did not exercise control over the means and methods of his work.[1]
The Case
Before this Court is a Petition for Review[2] which seeks to reverse and set aside the Decision[3] dated 20 October 2016 and Resolution[4] dated 13 March 2017 of the Court of Appeals (CA) in CA-G.R. SP No. 125867, which annulled and set aside the Decision[5] dated 29 May 2012 of the Special Division of the National Labor Relations Commission (NLRC) and reinstated the Decision[6] dated 29 December 2011 of the Fifth Division of the NLRC. The dispositive portion of the CA Decision reads:
“WHEREFORE, foregoing considered, the petition is GRANTED. The assailed Decision dated May 29, 2012 of the National Labor Relations Commission-Special Division in LAC No. 05-001370-11 granting the motion for reconsideration of the private respondent and reversing and setting aside the earlier decision dated December 29, 2011 rendered by the National Labor Relations Commission-Fifth Division is VACATED and SET ASIDE. Accordingly, the Decision dated December 29, 2011 of the NLRC-Fifth Division is REINSTATED and AFFIRMED in toto. SO ORDERED."[7]
Antecedents
ABS-CBN Corporation[8] (ABS-CBN) is a domestic corporation principally engaged in the business of broadcasting television and radio content in the Philippines. Under its Amended Articles of Incorporation,[9] its principal purpose is:
To carry on the business of television and radio network broadcasting of all kinds and types; to carry on all other businesses incident thereto; and to establish, construct, maintain and operate for commercial purposes and in the public interest, television and radio broadcasting stations within or without the Philippines, using microwave, satellite or whatever means including the use of any new technologies in television and radio systems.[10]
Among its secondary purposes are:
- To broadcast, disseminate, distribute, transmit, retransmit, receive, or collect by satellite, microwave, electronic, electrical or other means, news, sports, entertainment, educational and informative matter, advertisements or any other matter which may be transmitted by television, radio or electronic signals, and to provide for the use of other equipment or facilities for such purpose.
x x x
- To engage in any manner, shape or form in the recording and reproduction of the human voice, musical instruments, and sound of every nature, name and description; to engage in any manner, shape or form in the recording and reproduction of moving pictures, visuals and stills of every nature, name and description; and to acquire and operate audio and video recording, magnetic recording, digital recording and electrical transcription exchanges, and to purchase, acquire, sell, rent, lease, operate, exchange, or otherwise dispose of any and all kinds of recordings, electrical transcription or other devices by which sight and sound may be reproduced. 4. To carry on the business of providing graphic design, videographic, photographic and cinematographic reproduction services and other creative production services; and to engage in any manner, shape or form in post-production mixing, dubbing, overdubbing, audiovideo processing sequence alteration and modification of every nature of all kinds of audio and video productions. 5. To carry on the business of promotion and sale of all kinds of advertising and marketing services and generally to conduct all lines of business allied to and interdependent with that of advertising and marketing services.[11]
ABS-CBN claims that it is not its principal business nor its legal obligation to produce television programs. It can operate its business without producing any of its own television programs. Just like any other broadcasting companies, it has several options in terms of where and how to obtain content to broadcast or air, and the means of generating revenues. These options include the following schemes: (1) block-time;[12] (2) line production;[13] (3) Co-production;[14] (4) Self-production;[15] (5) Foreign canned shows;[16] (6) Live Coverages;[17] (7) Licensed Programs;[18] and (8) a combination of the foregoing schemes.[19] Respondent maintains that he was hired by ABS-CBN as OB (Outside Broadcast) van driver in June 1999 under the Engineering Department and was given the task to oversee the generator used during tapings/shooting of programs aired by ABS-CBN. He was assigned to different TV Programs at the time of his employment,[20] and acted as property custodian over all equipment, especially the generator used in their tapings/shootings. According to respondent, he was supervised by ABS-CBN personnel with respect to his work schedules, the programs he was assigned to, and the time he was supposed to report for work. He was made to comply with company rules, and for infractions committed, he was subjected to penalties and sanctions. In one instance in 2003 he was issued a Memo from ABS-CBN TV Engineering Division for the alleged overheating of a generator set.[21] Respondent asserts that eventually, he was placed in the Internal Job Market work pool devised by ABS-CBN and joined the workers’ union. As a result of the union’s constant demands for regularization, ABS-CBN started coercing complainant and other union members to sign contracts indicating they were waiving their rights to regularization and giving them deadlines within which to do so. Thus, respondent filed an initial complaint for regularization on 06 August 2010. A month later, or on 01 September 2010, respondent was dismissed from service after he refused to sign the employment contract prepared by ABS-CBN. This prompted respondent to amend his labor complaint to include illegal dismissal. At the time of his dismissal on 01 September 2010, he was receiving a salary of Php558.16/day or Php69.77 per hour. The Labor Arbiter (LA) dismissed respondent’s complaint upon finding that there is no employer-employee relationship between ABS-CBN and respondent. The dispositive portion of the Decision[22] dated 31 March 2011 reads:
“WHEREFORE, premises considered, the complaint for regularization, illegal dismissal and damages is dismissed for lack of jurisdiction, there being no employer-employee relationship between complainant and respondent company ABS-CBN Broadcasting Corporation. SO ORDERED."[23]
Respondent appealed to the NLRC. The Fifth Division, through Commissioner Mercedes R. Posada-Lacap, reversed the Labor Arbiter’s Decision, and held that respondent is a regular employee of ABS-CBN. In its Decision[24] dated 29 December 2011, the Fifth Division disposed:
“WHEREFORE, the decision of the labor arbiter a quo is hereby VACATED and SET ASIDE. A new one is entered finding that complainant is a regular employee of respondents, and that his dismissal was without just cause nor due process, therefore illegal. Respondents are therefore directed to reinstate complainant to the position of OB Van Driver/Gen Set Operator immediately, and to pay him backwages from the time of his illegal dismissal until the reinstatement and attorney’s fees of ten (10%) percent of total award. SO ORDERED."[25]
ABS-CBN filed a Motion for Reconsideration[26] and sought the inhibition of Commissioner Lacap on the ground that she had previously ruled against ABS-CBN and prayed that the case be re-assigned to another Division of the NLRC.[27] Consequently, Chairman Gerardo C. Nograles issued Administrative Order No. 03-19, series of 2012, creating a Special Division[28] to resolve the Motion for Reconsideration filed by ABS-CBN. In its Per Curiam Decision dated 29 May 2012,[29] the Special Division reversed the earlier Decision of Commissioner Lacap and reinstated the Decision of the Labor Arbiter. Without filing a motion for reconsideration, respondent filed a Petition for Certiorari[30] under Rule 65 of the Rules of Court before the CA. On 20 October 2016, the CA annulled and set aside the Per Curiam Decision of the NLRC Special Division and reinstated the Decision of Commissioner Lacap. ABS-CBN filed a Motion for Reconsideration[31] but the same was denied by the CA. ABS-CBN thus filed the instant Petition for Review, on the ground that respondent failed to file a Motion for Reconsideration before it filed the Petition for Certiorari before the Court of Appeals and that the appellate court erred in holding that respondent is a regular employee of ABS-CBN.
Ruling of the Court
This Court finds the Petition devoid of merit.
The failure of respondent to file a motion for reconsideration is not fatal
ABS-CBN avers that the CA should have dismissed the case for failure of respondent to file a motion for reconsideration before the Special Division of the NLRC. We are not persuaded. It is a settled rule that a special civil action for certiorari under Rule 65 will not lie unless a motion for reconsideration is filed before the respondent court. However, there are well-defined exceptions established by jurisprudence, such as: (a) where the order is a patent nullity, as where the court a quo has no jurisdiction; (b) where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; (c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable; (d) where, under the circumstances, a motion for reconsideration would be useless; (e) where petitioner was deprived of due process and there is extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; (g) where the proceedings in the lower court are a nullity for lack of due process; (h) where the proceedings were ex parte or in which the petitioner had no opportunity to object; and (i) where the issue raised is one purely of law or where public interest is involved.[32] In this case, exceptions (b) and (d) are present. The issues raised before the NLRC, which pertain to the existence of an employer-employee relationship between ABS-CBN and herein respondent and the issue of illegal dismissal were the very same questions raised before the CA. Moreover, respondent’s failure to file a motion for reconsideration is adequately explained in the Prefatory Statement[33] of his Petition for Certiorari. This is not to say, however, that respondent’s suspicions are correct. Only that under the circumstances, respondent could not be faulted for opting not to file a motion for reconsideration anymore. In any event, it must be emphasized that the rules of procedure, especially in labor cases, ought not to be applied in a very rigid, technical sense for they have been adopted to help secure, not override, substantial justice.[34] Where a decision may be made to rest on informed judgment rather than rigid rules, the equities of the case must be accorded their due weight because labor determinations should not only be secundum rationem but also secundum caritatem.[35]
Neither the Court of Appeals nor the respondent is bound by the Jalog case
ABS-CBN points the CA disregarded its own ruling in the case of Jalog, et al. v. ABS-CBN Broadcasting Corporation,[36] wherein the appellate court declared that complainants therein, i.e., cameramen, crane operators, VTR men and drivers, are independent contractors. The Decision[37] was eventually affirmed by this Court. It calls this Court to “set straight”[38] the departure made by the CA in accordance with the doctrine of stare decisis. While this Court affirmed the CA Decision in Jalog, it was not a signed decision or resolution, but a Minute Resolution promulgated on 05 October 2011. In the said Minute Resolution, this Court dismissed the petition filed by various workers who were members of the Internal Job Market, for lack of verification and for failure of the petition to show reversible error in the assailed judgment. In the case of Read-Rite Philippines, Inc. v. Francisco,[39] then Associate Justice (later Chief Justice) Teresita Leonardo-De Castro discussed:
As to the final ruling in Zamora, the same is a minute resolution of the Court dated November 12, 2007 in G.R. No. 179022 that affirmed the judgment of the Court of Appeals. In Alonso v. Cebu Country Club, Inc.,we declared that a minute resolution may amount to a final action on a case, but the same cannot bind non-parties to the action. Further, in Philippine Health Care Providers, Inc. v. Commissioner of Internal Revenue, we expounded on the consequence of issuing a minute resolution in this wise:
It is true that, although contained in a minute resolution, our dismissal of the petition was a disposition of the merits of the case. When we dismissed the petition, we effectively affirmed the CA ruling being questioned. As a result, our ruling in that case has already become final. When a minute resolution denies or dismisses a petition for failure to comply with formal and substantive requirements, the challenged decision, together with its findings of fact and legal conclusions, are deemed sustained. But what is its effect on other cases? With respect to the same subject matter and the same issues concerning the same parties, it constitutes res judicata. However, if other parties or another subject matter (even with the same parties and issues) is involved, the minute resolution is not binding precedent. x x x (Emphasis supplied)
Even assuming that Jalog has a binding effect, this Court is not precluded from revisiting doctrines and precedents. Abaria v. National Labor Relations Commission[40] expounds on stare decisis in this wise:
Under the doctrine of stare decisis, once a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same, even though the parties may be different. It proceeds from the first principle of justice that, absent any powerful countervailing considerations, like cases ought to be decided alike. Thus, where the same questions relating to the same event have been put forward by parties similarly situated as in a previous case litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt to relitigate the same issue. The doctrine though is not cast in stone for upon a showing that circumstances attendant in a particular case override the great benefits derived by our judicial system from the doctrine of stare decisis, the Court is justified in setting it aside. For the Court, as the highest court of the land, may be guided but is not controlled by precedent. Thus, the Court, especially with a new membership, is not obliged to follow blindly a particular decision that it determines, after re-examination, to call for a rectification.
Respondent Concepcion is a regular employee of ABS-CBN, not an independent contractor
ABS-CBN insists that respondent is a talent who works as OB van driver and not a regular employee but an independent contractor. This Court however, is not convinced. Preliminarily, it is settled that the employer has the burden to prove that a person whose services it pays for is an independent contractor rather than a regular employee.[41] Jurisprudential law has recognized another kind of independent contractor - those individuals with unique skills and talents that set them apart from ordinary employees.[42] In the recent case of Paragele v. GMA Network, Inc.,[43] this Court’s Division emphasized that in order to be considered independent contractors and not employees of GMA Network, it must be shown that those cameramen were hired because of their unique skills and talents, and that GMA Network did not exercise control over the means and methods of their work. Jurisprudence has adhered to the four-fold test in determining the existence of an employer-employee relationship. These are: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control the employee’s conduct, or the so-called control test.[44] The records show that respondent was directly hired by ABS-CBN. He was receiving salaries twice a month with payslips bearing the ABS CBN’s corporate name.[45] His Certificates of Compensation Payment/Tax Withheld, indicate that his salary is being deducted for SSS, Pag-Ibig, Philhealth, among others, which certificates indicate that his employer is ABS-CBN.[46] At the time of respondent’s dismissal on 01 September 2010, he was receiving a salary of Php558.16/day or Php69.77 per hour. Although wages are not a conclusive factor, it may indicate whether one is an independent contractor.[47] An independent contractor enjoys independence and freedom from the control and supervision of his principal. This is opposed to an employee who is subject to the employer’s power to control the means and methods by which the employee’s work is to be performed and accomplished.[48] Here, ABS-CBN has production and field supervisors to monitor respondent in his works and to see to it that he follows the required standards set by ABS-CBN. The network has the power to discipline respondent, and in fact, he was once subjected to a disciplinary action. Respondent, just like any normal employee, was required to attend seminars and workshops to ensure their optimal performance at work. Undaunted, ABS-CBN insists that respondent is a talent, thus, an independent contractor. This argument, however, deserves scant consideration. Respondent cannot be considered a talent of ABS-CBN as he is neither an actor nor a star.[49] Independent contractors often present themselves to possess unique skills, expertise or talent to distinguish them from ordinary employees which respondent does not have.[50] Notwithstanding, ABS-CBN tries to project respondent as not an ordinary office driver, but an OB van driver.[51] Petitioner’s asseveration rests on flimsy ground. Driving an OB van which is equipped with specialized equipment does not make the driver a standout. Parenthetically, ABS-CBN took pains in discussing what other workers do, such as audioman or sound engineer, cameraman, gaffer, and lightman but failed to discuss the nature of the job of an OB Van Driver, except that it includes the handling of the OB Van. ABS-CBN has not disputed that at the time respondent was hired by the Human Resource Department, his driving skills were limited and that he had no knowledge in operating a generator set. It was the network which provided him the necessary trainings and seminars to develop his skills.[52] Moreover, the tools and instrumentalities needed by respondent for his work is provided to him[53] - the OB Van and the generator set. ABS-CBN could also assign him to any show or programs where the production group would need his services. It does not escape our attention that respondent has no power to bargain and negotiate for his fee. The power to bargain talent fees way above the salary scales of ordinary employees is a circumstance indicative of an independent contractual relationship.[54] That ABS-CBN classified him as a talent is of no moment and does not make him an independent contractor. It is not the will or word of the employer which determines the nature of employment of an employee but the nature of the activities performed by such employee in relation to the particular business or trade of the employer.[55] Hence, not being an independent contractor, respondent is necessarily an employee of ABS-CBN. Article 294 (formerly Article 280) of the Labor Code reads:
REGULAR AND CASUAL EMPLOYMENT. - The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season. An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That, any employee who has rendered at least one year of service whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such actually exists.
The law provides for two (2) types of regular employees, namely: (a) those who are engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer (first category); and (b) those who have rendered at least one year of service, whether continuous or broken, with respect to the activity in which they are employed (second category).[56] ABS-CBN insists that it is not legally obliged to produce programs as its main business is broadcasting. It has emphasized the available options to it in airing shows and generating revenues - block-time, line production, co-production, self-production, foreign canned shows, live coverages, licensed programs, and a combination of the foregoing schemes. Simply stated, it tries to distance itself from self-production, co-production, line production and live coverages, because it is in these schemes that ABS-CBN would need the services of its talents, including herein respondent. However, the nature of the work performed must be viewed from a perspective of the business or trade in its entirety and not on a confirmed scope.[57] A reading of Amended Articles of Incorporation of ABS-CBN, particularly paragraphs 1, 3, 4 and 5 of its Secondary Purposes, shows that the network is likewise engaged in the business of production of shows. If it opts not to produce programs, it may rightfully do so, but it does not remove its employees from being regular employees. There is no doubt that as OB van driver and generator set operator, respondent performed job which is necessary or desirable in the usual business or trade of employer. It is equally true that he had been performing his job since 1999 until his services was terminated in 2010. Thus, being a member of the Internal Job Market System, respondent is deemed regular work pool employee under the second category.[58] Respondent was illegally dismissed Security of tenure is a constitutionally guaranteed right. Employees may not be terminated from their regular employment except for just or authorized causes under the Labor Code.[59] In this case, respondent was illegally dismissed, since his dismissal does not fall under the just[60] or authorized causes.[61] An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.[62] In computing for the backwages, this Court deems it wise to apply the case of Maraguinot,[63] where this Court aptly discussed:
In closing then, as petitioners had already gained the status of regular employees, their dismissal was unwarranted, for the cause invoked by private respondents for petitioners’ dismissal, viz.: completion of project, was not, as to them, a valid cause for dismissal under Article 282 of the Labor Code. As such, petitioners are now entitled to back wages and reinstatement, without loss of seniority rights and other benefits that may have accrued. Nevertheless, following the principles of “suspension of work” and “no pay” between the end of one project and the start of a new one, in computing petitioners’ back wages, the amounts corresponding to what could have been earned during the periods from the date petitioners were dismissed until their reinstatement when petitioners’ respective Shooting Units were not undertaking any movie projects, should be deducted.
In addition to backwages, respondent is entitled to 13th month pay, and holiday pay, computed by deducting the amounts corresponding to the periods that respondent’s production group was not engaged in the shooting of programs. Likewise, respondent is entitled to attorney’s fees equivalent to ten percent of the total monetary award.[64] All amounts due shall earn legal interest pursuant to Nacar v. Gallery Frames.[65] There is, however, a need to remand the case to the Labor Arbiter for the computation of the monetary awards. In this regard, ABS-CBN is directed to provide the necessary data to enable the Labor Arbiter to compute such awards, in the light of this Decision. WHEREFORE, the Petition is DENIED. The assailed Decision dated 20 October 2016 and Resolution dated 13 March 2017 of the Court of Appeals in CA-G.R. SP No. 125867 are AFFIRMED. The case is REMANDED to the Labor Arbiter, through the National Labor Relations Commission, for the computation of backwages and other monetary benefits. Petitioner ABS-CBN Corporation is DIRECTED to furnish the Labor Arbiter the necessary and relevant data to fast track the computation. SO ORDERED. Leonen, Gesmundo, Carandang, and Gaerlan, JJ., concur.