THIRD DIVISION
[G.R. No. 197753. February 15, 2017.]
LIGHTSCAPE, INC. and EDUARDO TUVIERA, petitioners,vs. NORMAN S. SALVADOR, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedFebruary 15, 2017,which reads as follows:
"G.R. No. 197753 — LIGHTSCAPE, INC. and EDUARDO TUVIERA, Petitioners, v. NORMAN S. SALVADOR, Respondent.
Petitioners Lightscape, Inc. (Lightscape) and Eduardo Tuviera (Tuviera) hereby appeal the decision promulgated by the Court of Appeals (CA) on April 15, 2011 finding the existence of an employer-employee relationship between Lightscape and respondent Norman S. Salvador (Salvador), 1 thereby reversing the decision of the National Labor Relations Commission 2 (NLRC) dated January 30, 2009 declaring that Salvador was not a regular employee of Lightscape.
Antecedents
Lightscape, Inc. — a domestic corporation engaged in the supply, lease and repair of lighting and sound equipment used in the broadcast industry 3 — hired Salvador on January 13, 2000 as a member of its technical crew tasked to assist the cameramen in the preparation and handling of cables and cameras. His services were eventually terminated by Lightscape on December 29, 2005 on the ground of his poor performance. 4 On January 6, 2006, he filed a complaint for illegal dismissal, non-payment of wages, service incentive leave, 13th month pay, separation pay and damages in the National Capital Arbitration Branch of the National Labor Relations Commission (NLRC). 5
In his position paper, Salvador alleged that he was summarily dismissed by the petitioners without cause and due process. 6
In contrast, the petitioner moved to dismiss the complaint, 7 alleging that Salvador had only been an independent contractor possessing the necessary skill, training and qualification needed in the production of programs for television; and that he had been a program employee whose services were not subject to the regular office hours and who was not precluded from entering into a service contract with another entity. CAIHTE
Opposing the petitioners' motion to dismiss, Salvador submitted that he was a regular employee of Lightscape; that the petitioners had hired him, and he had then received his salary "every fifteen days of the month;" that they had held the power to hire and dismiss him; and that they had exercised control over him by dictating when and where he rendered his work, the equipment he would use, and the number of hours he would work on any given day. 8
Decision of the Labor Arbiter
On March 31, 2006, Labor Arbiter Lilia S. Savari issued an order granting the petitioners' motion to dismiss for lack of jurisdiction, 9 disposing thusly:
WHEREFORE, the motion is hereby granted. The instant case is ordered dismissed for want of employer-employer (sic) relationship resulting to lack of jurisdiction of this Office.
SO ORDERED.10
Decision of the NLRC
On appeal, Salvador reiterated his contention that he was a regular employee of Lightscape.
On June 21, 2006, the NLRC dismissed the appeal for not having been perfected in accordance with its rules. 11
Accordingly, Salvador timely moved for reconsideration. The NLRC, although giving due course to the motion, eventually denied the motion for lack of merit. In its decision dated January 30, 2009, 12 the NLRC disposed:
WHEREFORE, premises considered, complainant Salvador's Motion for Reconsideration is hereby GRANTED. While complainant's appeal is hereby DENIED for lack of merit. Consequently, the Order appealed from is hereby AFFIRMED in toto.
SO ORDERED. 13
The NLRC opined that there was no employer-employee relationship between the parties because there was no showing by Salvador that Lightscape had exercised control over him; 14 that he was a program employee under DOLE Policy Instruction No. 40, as evidenced by his payslips showing that he did not observe regular working hours and was not prohibited by petitioners to work for another company. 15
Upon the denial of his motion for reconsideration, Salvador brought a petition for certiorari in the CA.
Decision of the CA
On April 15, 2011, the CA promulgated its assailed decision 16 granting the petition for certiorari, decreeing as follows:
WHEREFORE, premises considered, the instant Petition is hereby GRANTED. The assailed NLRC Decision dated January 30, 2009 is hereby REVERSED. Private respondents are ordered to pay petitioner full backwages and separation pay in lieu of reinstatement.
SO ORDERED.17
The CA concluded that Salvador was a regular employee of Lightscape; and that he had been illegally dismissed due to the petitioners' failure to exercise due process in the termination of his services.
The CA later denied the petitioners' motion for reconsideration. 18
Issues:
Hence, this appeal, in which the petitioners maintain that Salvador was not a regular employee of Lightscape, but an independent contractor; that the four elements to determine the existence of an employer-employee relationship, namely: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer's power to control the employee on the means and methods by which the work is accomplished, were absent in this case; that Lightscape never hired Salvador, but it was the latter who had offered his technical services to Lightscape; that Salvador was paid a pre-agreed fee, which varied depending on the production and television project; that he had not been precluded from entering into service contracts with another entity; that he had not been subject to any disciplinary measures from Lightscape, except for inherent rules of general behavior and good conduct; that, most importantly, the means and manner by which he had rendered his services were not controlled by Lightscape; and that petitioner Tuviera should not be held solidarily liable because he had not been guilty of bad faith in dealing with Salvador.
On his part, Salvador reiterates his argument that he was a regular employee of Lightscape based on the nature of the latter's engagement of his services.
Accordingly, the twin issues for resolution are: one, whether the CA erred in ruling that Salvador was a regular employee of Lightscape; and, two, whether the CA erred in ruling that Salvador was illegally dismissed.
Ruling of the Court
The petition for review lacks merit. DETACa
The determination of the existence of an employer-employee relationship is a question of fact that is beyond the scope of an appeal by petition for review under Rule 45 of the Rules of Court, which is expressly limited to resolving questions of law. However, among the recognized exceptions is when the factual findings of the Labor Arbiter and the NLRC, on the one hand, and those of the CA, on the other, are conflicting. 19 Such exception obtains herein.
The petitioners primarily maintain that Salvador was not an employee of Lightscape but an independent contractor whose services had been engaged by Lightscape because of his special skills, training and expertise in the performance of the job as a member of the technical team. Accordingly, Salvador was not illegally dismissed because compliance with the two-notice requirement in case of dismissal was not applicable to him as an independent contractor.
We are not persuaded.
A judicious review of the records indicates that even Lightscape itself was not certain on how to classify Salvador. It categorized Salvador to be both an independent contractor and a program employee. A program employee is different from an independent contractor because no employer-employee relationship exists as to the latter, unlike as to the former. 20
In any case, Salvador was neither a program employee nor an independent contractor. Policy Instruction No. 40 issued by the Department of Labor and Employment (DOLE) defines program employees as — HEITAD
...those whose skills, talents or services are engaged by the station for a particular or specific program or undertaking and who are not required to observe normal working hours such that on some days they work for less than eight (8) hours and on other days beyond the normal work hours observed by station employees and are allowed to enter into employment contracts with other persons, stations, advertising agencies or sponsoring companies. The engagement of program employees, including those hired by advertising or sponsoring companies, shall be under a written contract specifying, among other things, the nature of the work to be performed, rates of pay and the programs in which they will work. The contract shall be duly registered by the station with the Broadcast Media Council within three (3) days from its consummation. 21
Lightscape did not present any written contract specifying the nature and extent of the work to be performed, the rates of pay, and the programs in which Salvador was expected to perform his work. Accordingly, it did not comply with the requirement of contract registration. More significantly, to categorize him as a program employee ran contrary to the petitioners' submission that no employer-employee relationship existed between Lightscape and Salvador.
Neither was classifying Salvador an independent contractor warranted. A legitimate job contractor has substantial capital and investment, and "carries on a distinct and independent business and undertakes to perform the job, work or service on its own account and under its own responsibility according to its own manner and method, and free from the control and direction of the principal in all matters connected with the performance of the work except as to the results thereof." 22 However, the petitioners did not submit sufficient evidence to establish that Salvador had substantial capital and investment so that he could be considered an independent contractor. In the first place, they did not present any contract between Lightscape and Salvador specifying the terms and nature of the latter's engagement. It was even undisputed that Salvador had used the equipment provided by the petitioners in performing his assigned tasks.
Verily, in arguing that Salvador was an independent contractor, the petitioners simply relied on their self-serving statements to the effect that his manner and method of performing his assigned task were beyond their control.
Nevertheless, it was really even immaterial that the petitioners might have engaged Salvador either as an independent contractor or a program employee. Whether he was paid a pre-agreed fee denoted as "talent fee" instead of a salary, or was supposedly not required to observe fixed working hours, or was allowed to render services to other persons or entities was not conclusive of the nature of his employment. 23 As held in ABS-CBN Broadcasting Corporation v. Nazareno, 24 it was the character of the activities performed with regard to a specific trade or business considering all the attendant circumstances that defined the nature of employment, not the employer's unilateral determination, or the hiring procedure, or the manner of paying the salary of employee.
It cannot now be denied that Salvador was a regular employee of the petitioners. Article 280 25 of the Labor Code provides:
Art. 280. 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 engagement of the employee or where the work or service to be performed is seasonal in nature and 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 when such activity exists.
Salvador performed the same activities in the span of five years from 2000 to 2005. His assigned task as a member of the technical crew of the petitioners was necessary or desirable in Lightscape's usual business of supplying, leasing and repairing of broadcast, lighting and sound equipment. ATICcS
Being a regular employee, Salvador could not be dismissed except for a valid cause and after due process. Poor performance — the ground alleged by petitioners to validate his dismissal — could not be considered as a just cause prescribed by law for termination of his services. To justify his dismissal on this ground, Lightscape should show that the unsatisfactory performance of duty was so grave that it would amount to gross inefficiency that was analogous to gross or habitual neglect of duty resulting to the damage or prejudice to the employer's business. 26 Such showing was not made by the petitioners. On the contrary, they even admitted that he had received commendation as Best Division Crew for Broadcast 27 for the years 2001 and 2002. 28
Anent the observance of procedural due process, the CA correctly pointed out as follows:
Private respondents clearly failed to comply with the two-notice requirement. Nothing in the records shows that they sent petitioner a written notice informing him of the ground for which his dismissal was sought. They did not conduct any hearing where he could answer the charge imputed against him. Neither did they send a written notice to him informing him that his service had been terminated and the reasons for his termination. Well-settled is the rule that in illegal dismissal cases, the onus of proving that the employee was not dismissed or, if dismissed that the dismissal was not illegal, rests on the employer, failure to discharge which would mean that the dismissal is not justified and, therefore, illegal. Certainly, a party alleging a critical fact must support his allegation with substantial evidence, for any decision based on unsubstantiated allegation cannot stand without offending due process. ETHIDa
Here, petitioner was summarily dismissed and private respondents never presented any substantial evidence to show that the dismissal was for cause and after observance of the procedural due process. 29
Nonetheless, petitioner Tuviera, the Chief Executive Officer of Lightscape, should not be held solidarily liable with Lightscape in the absence of any showing by Salvador that he had acted with malice or bad faith in his dismissal from employment. 30 For the liability to arise, Tuviera must be shown to have so acted. This requirement existed because he was then acting in the interest of Lightscape, which had a personality distinct and separate from his own. Salvador made no such showing herein.
WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals promulgated on April 15, 2011 with MODIFICATION that petitioner Lightscape, Inc. shall pay to respondent Norman S. Salvador: (a) full backwages from the time of his illegal dismissal up to the finality of this decision; (b) separation pay in lieu of reinstatement equivalent to one month for every year of service until the finality of this decision; (c) legal interest of 6% per annum on the total monetary awards computed from the finality of this decision until full satisfaction; and (d) the costs of suit. TIADCc
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1.Rollo, pp. 47-64; penned by Associate Justice Sesinando E. Villon, with Associate Justice Rebecca De Guia-Salvador (retired) and Associate Justice Amy C. Lazaro-Javier concurring.
2.Id. at 163-169.
3.Id. at 6.
4.Id. at 8.
5.Id.
6.Id. at 48.
7.Id. at 67-89.
8.Id. at 50.
9.Id. at 120-123.
10.Id. at 123.
11.Id. at 51.
12.Id. at 163-169.
13.Id. at 169.
14.Id. at 167.
15.Id. at 168.
16.Id. at 47-64.
17.Id. at 64.
18.Id. at 197-224.
19.Television and Production Exponents, Inc. v. Servaña, G.R. No. 167648, January 28, 2008, 542 SCRA 578, 584.
20.ABS-CBN Broadcasting Corporation v. Nazareno, G.R. No. 164156, September 26, 2006, 503 SCRA 204, 229.
21.Supra note 19, at 588-589.
22.Id. at 588.
23.Supra note 20, at 227.
24.Id. at 227-228.
25. Now Article 295, pursuant to Republic Act No. 10151 (see DOLE Department Advisory No. 01, Series of 2015).
26. Lim v. National Labor Relations Commission, G.R. No. 118434, July 26, 1996, 259 SCRA 485, 496-497.
27. Rollo, pp. 286-287.
28. Id. at 305.
29. Id. at 61-62.
30. Supra note 19, at 592.