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ATOK BIG WEDGE COMPANY, INC., Petitioner, vs.

regular employee after his first year of rendering service


JESUS P. GISON, Respondent. to petitioner.
G.R. No. 169510 August 8, 2011 11. Petitioner elevated the case to SC. Petitioner contends
that where the existence of an employer-employee
Facts: relationship is in dispute, Article 280 of the Labor Code
1. Sometime in February 1992, respondent Jesus P. Gison is inapplicable. The said article only set the distinction
was engaged as part-time consultant on retainer basis between a casual employee from a regular employee for
by petitioner Atok Big Wedge Company, Inc. through its purposes of determining the rights of an employee to be
then Asst. Vice-President and Acting Resident Manager, entitled to certain benefits.
Rutillo A. Torres. As a consultant on retainer basis,
respondent assisted petitioner's retained legal counsel Issue: WON an employer-employee relationship exists
with matters pertaining to the prosecution of cases between the parties. (NO)
against illegal surface occupants within the area covered
by the company's mineral claims. Respondent was Ruling: To ascertain the existence of an employer-employee
likewise tasked to perform liaison work with several relationship jurisprudence has invariably adhered to the four-
government agencies, which he said was his expertise. fold test, to wit: (1) the selection and engagement of the
2. Petitioner did not require respondent to report to its employee; (2) the payment of wages; (3) the power of
office on a regular basis, except when occasionally dismissal; and (4) the power to control the employee's
requested by the management to discuss matters conduct, or the so-called "control test." Of these four, the last
needing his expertise as a consultant. As payment for one is the most important. The so-called "control test" is
his services, respondent received a retainer fee of commonly regarded as the most crucial and determinative
₱3,000.00 a month, which was delivered to him either indicator of the presence or absence of an employer-
at his residence or in a local restaurant. The parties employee relationship. Under the control test, an employer-
executed a retainer agreement, but such agreement was employee relationship exists where the person for whom the
misplaced and can no longer be found. The said services are performed reserves the right to control not only
arrangement continued for the next eleven years. the end achieved, but also the manner and means to be
3. Sometime thereafter, since respondent was getting old, used in reaching that end.
he requested that petitioner cause his registration with
the Social Security System (SSS), but petitioner did not Applying the aforementioned test, an employer-employee
accede to his request. He later reiterated his request but relationship is apparently absent in the case at bar. Among
it was ignored by respondent considering that he was other things, respondent was not required to report everyday
only a retainer/consultant. On February 4, 2003, during regular office hours of petitioner. Respondent's
respondent filed a Complaint with the SSS against monthly retainer fees were paid to him either at his
petitioner for the latter's refusal to cause his registration residence or a local restaurant. More importantly, petitioner
with the SSS. did not prescribe the manner in which respondent would
4. On the same date, Mario D. Cera, in his capacity as accomplish any of the tasks in which his expertise as a
resident manager of petitioner, issued a Memorandum liaison officer was needed; respondent was left alone and
advising respondent that within 30 days from receipt given the freedom to accomplish the tasks using his own
thereof, petitioner is terminating his retainer contract means and method. Respondent was assigned tasks to
with the company since his services are no longer perform, but petitioner did not control the manner and
necessary. methods by which respondent performed these tasks. Verily,
5. On February 21, 2003, respondent filed a Complaint for the absence of the element of control on the part of the
illegal dismissal, unfair labor practice, underpayment of petitioner engenders a conclusion that he is not an employee
wages, non-payment of 13th month pay, vacation pay, of the petitioner.
and sick leave pay with the National Labor Relations
Commission (NLRC), Regional Arbitration Branch Moreover, the absence of the parties' retainership
(RAB), Cordillera Administrative Region, against agreement notwithstanding, respondent clearly admitted that
petitioner, Mario D. Cera, and Teofilo R. Asuncion, Jr. petitioner hired him in a limited capacity only and that there
6. Respondent’s argument: Because of his length of will be no employer-employee relationship between them as
service, he invited the attention of the top officers of the averred in respondent’s position paper.
company that he is already entitled to the benefits due
an employee under the law, but management ignored Despite the fact that petitioner made use of the services of
his requests. However, he continued to avail of his respondent for eleven years, he still cannot be considered as
representation expenses and reimbursement of a regular employee of petitioner. Article 280 of the Labor
company-related expenses. He also enjoyed the Code, in which the lower court used to buttress its findings
privilege of securing interest free salary loans payable in that respondent became a regular employee of the
one year through salary deduction. petitioner, is not applicable in the case at bar. Indeed, the
7. Petitioner’s argument: No EER as Gison’s contract Court has ruled that said provision is not the yardstick for
with Atok is merely temporary. determining the existence of an employment relationship
8. Labor Arbiter: in favor of the petitioner. Found no EER because it merely distinguishes between two kinds of
between petitioner and respondent and dismissed the employees, i.e., regular employees and casual employees,
complaint. for purposes of determining the right of an employee to
9. NLRC: LA decision affirmed. certain benefits, to join or form a union, or to security of
10. CA: In favor of respondents. Applying Art. 280 of the tenure; it does not apply where the existence of an
Labor Code, Gison is deemed a regular employee of the employment relationship is in dispute. It is, therefore,
petitioner after the lapse of one year from his erroneous on the part of the Court of Appeals to rely on
employment. Considering also that respondent had Article 280 in determining whether an employer-employee
been performing services for the petitioner for eleven relationship exists between respondent and the petitioner
years, respondent is entitled to the rights and privileges
of a regular employee. Also, although there was an Considering that there is no employer-employee relationship
agreement between the parties that respondent's between the parties, the termination of respondent's services
employment would only be temporary, it clearly appears by the petitioner after due notice did not constitute illegal
that petitioner disregarded the same by repeatedly dismissal warranting his reinstatement and the payment of
giving petitioner several tasks to perform. Moreover, full backwages, allowances and other benefits.
although respondent may have waived his right to attain
a regular status of employment when he agreed to
perform these tasks on a temporary employment status,
still, it was the law that recognized and considered him a