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[68] ABING v.

NATIONAL LABORS COMMISSION service within a definite or predetermined period,


regardless of whether such job, work or service is to be
G.R. No. 185345 | September 10, 2014 | Reyes, J.
performed or completed within or outside the premises
of the principal.

Petitioner: RONNIE L. ABING DOCTRINE

Respondents: NATIONAL LABOR RELATIONS COMMISSION, Under a contracting or subcontracting arrangement, no


ALLIED BANKING CORPORATION, FACILITATORS GENERAL employer-employee relationship is created between the
SERVICES and MARILAG BUSINESS AND INDUSTRIAL principal and the contractual worker, who is actually the
MANAGEMENT SERVICES, INC. employee of the contractor.”

SUMMARY FACTS

Petitioner Abing sought Employment with Allied Bank but was  Petitioner Ronnie L. Abing sought employment with Allied
instructed to go to Marilag which had a service contract with the said Banking Corporation and was instructed to go to Marilag
bank to file an application form before he started working with the bank. Business and Industrial Management Services, Inc., which had
Allied Bank later on terminated its service contract with Marilag and a service contract with the said bank. The petitioner filled out an
entered a new one with FGSI where Abing again filled out an application form with Marilag, passed the medical examination,
application form. After a year, Allied Bank terminated its contract with and was told to report at Allied Bank.
FGSI and told the petitioner to stop reporting at its office. Petitioner then  Allied Bank’s service contract with Marilag was terminated, and
filed for a complaint for illegal dismissal. The LA, NLRC, CA and SC Allied Bank entered into a new service contract with respondent
dismissed the complaint on the ground that FGSI, as a legitimate labor Facilitators General Services, Inc. Abing was again instructed
contractor, was the employer of Abing and not Allied Bank. Abing was to report to FGSI where he filled out an application form and was
not dismissed by Allied Bank because the instruction not to report was thereafter told to resume his work at Allied Bank.
pursuant to the termination of its service contract with FGSI. FGSI also  In October 2003, Allied Bank terminated its contract with FGSI,
did not dismiss Abing since the former offered the latter to report to and thus told the petitioner to stop reporting at its main office by
other offices but Abing refused and instead executed a Quitclaim and October 17, 2003.
Release against FGSI.  Claiming that he was an employee of the said bank and that he
was being illegally terminated without due process, the
PROVISIONS APPLICABLE petitioner filed a complaint against Allied Bank for illegal
Department Order No. 18-02 (DOLE), Section 4. Definition dismissal.
of basic terms. – the following terms as used in these Rules, Petitioner
shall mean:
 Argues that theservice contracts with FGSI and Marilag were
(a) “Contracting” or “subcontracting” refers to an part of a scheme to keep him a contractual employee and
arrangement whereby a principal agrees to put out or prevent his regularization, notwithstanding that he had served
farm out with a contractor or subcontractor the the bank continuously for many years and performed duties
performance or completion of a specific job, work or
which were usually necessary and desirable in its banking  Section 4(a) of Department Order No. 18-02 issued by the
business. DOLE, cited by the CA, defines legitimate labor contracting or
subcontracting “as an arrangement whereby a principal agrees
Allied Bank
to put out or farm out with a contractor or subcontractor the
 Denied that the petitioner was its employee, pointing out that it performance or completion of a specific job, work or service
was Marilag and FGSI which hired him to perform services for within a definite or predetermined period, regardless of whether
the bank under their service agreements. such job, work or service is to be performed or completed within
or outside the premises of the principal. Under such an
FGSI arrangement, no employer-employee relationship is created
 Tried to show that it was an independent job contractor, between the principal and the contractual worker, who is
employing the petitioner as a bookkeeper/receiving actually the employee of the contractor.”
clerk/messenger, as evidenced by the Employment Agreement  The LA, NLRC and the CA all found that FGSI is a legitimate job
and Manifestation signed by the petitioner. contractor and that the petitioner was an employee of FGSI
 It denied illegally dismissing the petitioner, claiming that when when he was terminated upon the expiration of its service
its service contract with Allied Bank was terminated, they contract with Allied Bank.
reassigned him to another workplace, but the petitioner refused  Before FGSI entered into a service contract with Allied Bank in
to be reassigned, and insisted on continuing his work at the September 2002, it had been doing business as a personnel
main office of Allied Bank. Realizing however that the said and manpower agency for 20 years since its incorporation with
assignment was no longer possible due to the termination of its the Securities and Exchange Commission.
service agreement with FGSI, the petitioner executed a  Applying the four-fold test used in determining an employer-
Quitclaim and Release on October 28, 2003 after he was paid employee relationship:
his 13th month pay and service incentive leave pay. 1. The selection and engagement of employee
It was FGSI which hired the petitioner and assigned him to
Marilag work at Allied Bank.
 Manifested that on December 21, 2002, the petitioner also 2. The payment of wages
executed a quitclaim in its favor, after its service contract with The petitioner collected his pay and benefits from FGSI. In
Allied Bank was terminated. his Quitclaim and Release dated October 28, 2003, he also
 The LA dismissed the petitioner’s complaint for illegal dismissal for acknowledged the release and payment of all his monetary
failing to prove that he was an employee of Allied Bank. On appeal, benefits by FGSI.
the NLRC reinstated the decision of the LA, finding that the 3. The power of dismissal
petitioner was an employee of a legitimate job contractor. On By signing the quitclaim, the petitioner acknowledged that it
petition for certiorari under Rule 65, the CA upheld the NLRC, was FGSI which hired him and had the power to terminate
finding that FGSI is a legitimate job contractor. his services.
4. The power to control the employee’s conduct
ISSUES w/ HOLDING AND RATIO FGSI through its Personnel Officer Marysol Gongona
WoN Abing was illegally dismissed. [NO] regularly visited Allied Bank’s premises. It also had the
power to reassign the petitioner to other clients.
 The petitioner in his petition mostly described his tasks in Allied
Bank as those of a messenger or runner, with clerical functions
assigned to him from time to time, such as “skip tracer, checker
and verifier of properties, and receiving clerk/vault keeper.” But
without a clear and full description of his actual tasks as well as
his alleged “promotions” in the bank’s plantilla, the Court is
unable to determine if, to the extent that he performed these
tasks, they are usually necessary or desirable in Allied Bank’s
banking business.
 All told, the petitioner is clearly not an employee of Allied Bank
and his complaint for illegal dismissal filed against the
respondents has no merit.

RULING

WHEREFORE, premises considered, the instant petition is hereby


DENIED.