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Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION


Arbitration Branch 10
Cagayan de Oro City
MARCELINNO B. MALEUNDA, ET. AL.,
NO. _______
Complainants,
VS
Damages

CASE

For: Illegal Dismissal w/

COKIA Industries Holdings &


Management, Inc. represented by
George Co and Gina Pinat,
Respondents.
----------------------------------------------------/

COMMENT
(To Complainants Position Paper)

COMES NOW, the respondent COKIA INDUSTRIES HOLDINGS &


MANAGEMENT (Cokia Inc.), through counsel and unto this Honorable NLCR,
most respectfully submits this comment and opposition to the complainantworkers petition, as follows:

1. Some facts are admitted with qualification, that Cokia Inc. is engaged in
the business of hatchery in Maramag, Bukidnon, but not as employer of
the complainants who claim to be regular workers;
2. That RY is a legitimate business as shown by the business permit
marked as Annex 2; Department of Labor and Employment marked
as Annex 3; Annual Income Tax Return marked as Annex 4;
Certificate from the Department of Trade and Industry (DTI) marked as
Annex 5; and Financial Statements marked as Annex 6-A to 6-I;
3. That barangay certificates as submitted by the complainant-workers do
not constitute proof of employment;

4. We reiterate that they are employees of RY Manpower Services as


shown by an affidavit by their co-worker
marked as Annex 1;
5. That RY Manpower Services has full control and supervision over the
complainant-workers;
The juridical relationship of the parties is based on Control Test.
In determining the existence of an employer-employee relationship, this Court
has generally relied on the four-fold test, to wit: (1) the selection and
engagement of the employee; (2) the payment of wages; (3) the power of
dismissal; and (4) the employers power to control the employee with respect
to the means and methods by which the work is to be accomplished.1
The Court has held that in determining whether a person who performs work
for another is the latter's employee or an independent contractor, the
prevailing test is the right of control test. Under this test, an employeremployee relationship exists where the person for whom the services are
performed reserves the right to control not only the end to be achieved, but
also the manner and means to be used in reaching that
end.2
Thus, the determination of the relationship between employer and employee
depends upon the circumstances of the whole economic activity, such as: (1)
the extent to which the services performed are an integral part of the
employers business; (2) the extent of the workers investment in equipment
and facilities; (3) the nature and degree of control exercised by the employer;
(4) the workers opportunity for profit and loss; (5) the amount of initiative, skill,
judgment or foresight required for the success of the claimed independent
enterprise; (6) the permanency and duration of the relationship between the
worker and the employer; and (7) the degree of dependency of the worker
upon the employer for his continued employment in that line of business. 3
It is evident that the employer-employee relationship exists between the
complainant-workers and RY Manpower Services since it is the latter who
selects and engages the employees to be employed under COKIA, as well as
being in-charge for the payment of the wages of said employees. The power
to dismiss such employees is also vested in RY Manpower Services and not
under the cloak of authority of COKIA. More importantly, RY exercises the
right of control over the complainant-workers.
6. That there is no employer-employee relationship between Cokia Inc.
and the complainant-workers so as to warrant a claim of illegal
dismissal against the former
1 Bernarte v. Philippine Basketball Association (PBA); Sandigan Savings and Loan Bank, Inc. v. National Labor Relations
Commission, 324 Phil. 348, 358 (1996); Sonza v. ABS-CBN Broadcasting Corporation, G.R. No. 138051, June 10, 2004, 431 SCRA 583,
594-595

2 Cosmopolitan Funeral Homes, Inc. v. Maalat G.R. No. 86693, 187 SCRA 108, July 2, 1990
3

Sevilla vs CA, G.R. No. L-41182-3 April 16, 1988

Before a case for illegal dismissal can prosper, it must first be established that
an employer-employee relationship existed between petitioner and
respondent.4
Not every form of control that a hiring party imposes on the hired party is
indicative of employee-employer relationship. Rules and regulations that
merely serve as guidelines towards the achievement of a mutually desired
result without dictating the means and methods of accomplishing it do not
establish employer-employee relationship.5
Logically, the line should be drawn between rules that merely serve as
guidelines towards the achievement of the mutually desired result without
dictating the means or methods to be employed in attaining it, and those that
control or fix the methodology and bind or restrict the party hired to the use of
such means. The first, which aim only to promote the result, create no
employer-employee relationship unlike the second, which address both the
result and the means used to achieve it.6
Not every form of control is indicative of employer-employee relationship. A
person who performs work for another and is subjected to its rules,
regulations, and code of ethics does not necessarily become an employee. As
long as the level of control does not interfere with the means and methods of
accomplishing the assigned tasks, the rules imposed by the hiring party on
the hired party do not amount to the labor law concept of control that is
indicative of employer-employee relationship.7
The Court has held that repeated hiring does not prove the existence of
employer-employee relationship. As discussed, the absence of control over
the means and methods disproves employer-employee relationship. Also, the
continuous rehiring simply signifies the renewal of his contract with the
contractor, and highlights his satisfactory services warranting the renewal of
such contract.8
Further, in Consulta v. Court of Appeals, it was held that exclusivity of contract
does not necessarily result in employer-employee relationship.

4 Cesar C. Lirio, doing business under the name ad style of Celkor Ad Sonicmix vs Wilmer D. Genovia, Gr. 169757, November 23, 2011
5 Royale Homes Marketing Corportation vs Fidel V. Alcantara [deceased], substituted by his heirs [G.R. No. 195190, July 28, 2014]
citing Insular Life Assurance Co., Ltd v. National Labor Relations Commission, 259 Phil. 65, 70-71 (1989)

6 Id.
7 Tongko v. The Manufacturers Life Insurance Co. (Phils.), Inc., G.R. No. 167622, June 29, 2010
8 Royale Homes Marketing Corp (Supra)

PRAYER
Wherefore, premises considered, it is respectfully prayed before this
Honorable Office, that the instant action, including all claims the parties have
against respondent, be DISMISSED.
Other just and equitable relief are likewise prayed for.
Cagayan de Oro City, September 14, 2016.

ATTY. VINCENT KHU PELAEZ


Counsel for Respondents
PTR 7711770
IBP Lifetime No. 0128916, June 5, 2015
Roll of Attorney No. 48591
MCLE IV 002821, October 3, 2011
Sangguniang Panlalawigan Office
2nd floor Provincial Capitol Building
Cagayan de Oro City

Copy furnished to:

ATTY. REYNALDO A. VITORILLO


R.A. VITORILLO & ASSOCIATES
Hayes Street, Pinikitan, Cagayan de Oro City
Tel. Nos. (08822) 721064, (088) 8578668

EXPLANATION OF SERVICE
A copy of the foregoing Comment is served to Complainants Counsel via
Registered Mail due to lack of manpower and distance.

VINCENT K. PELAEZ