2ND QUESTION:

From the information you have declared to me, I have identifies the ffg issues: 1) Whether you are an ee of
your uncle bernardo or partner; and 2) whther you are entitled to 13th mon pay, SIL and overtime pay for the
services you performed in excess of 8 hours.

With regard to the 1st issue, you are neither an employee nor a partner of your uncle. It has been
held in a long line of cases that in order to determine if there exists en er-ee relationship the four fold
test must be used. The case of VIAÑA vs. PIGA discussed about the four fold test by stating that “In
determining the existence of employer-employee relationship, the following elements are generally considered,
namely: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of
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dismissal; and (4) the power to control the employees’ conduct — although the latter is the most important element”.
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In the issue at hand, it can be considered that the 1st two req are present since you were hired by your uncle
bernardo to be the captain of Derek 1 boat and the share in the profits can be regarded as wages. But the fourth
requirement, which is power of control, is not present and this element is the most important one. As stated in the
case of CONTINENTAL MARBLE CORP. ET AL. vs. NATIONAL LABOR RELATIONS COMMISSION “Absent
the power to control the employee with respect to the means and methods by which his work was to be
accomplished, there was no employer-employee relationship between the parties.” Thus without this element then
no er-ee rel. Exists.

In the instant case, your uncle does not have any power of control over you since you have the discretion to
go about your island hopping business. This can be viewed from the fact that you were able to choose your
own crew, canvass your own passengers and you have no definite time as to when to end your trip.

You cannot also be considerd as a partner since, as stated in VIAÑA vs. PIGA “sharing profits in lieu of wages is not a
partnership. There is no true contribution”. Based on the foregoing it cannot be deduced immediately that you are a
partner simply because you shared in the profits of the business with your uncle.

Thus it more exact to define you as a field personnel. Art. 82 of the LC states that "Field personnel" shall refer to non-
agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and
whose actual hours of work in the field cannot be determined with reasonable certainty.”. You stated to me that you perform your duties
on board which is away from the branch office and your actual hours of work cannot be determined since your time of arrival at the port
changes and is not exact.

As to the 2nd issue, the answer is stil in the negative since those benefits can only be acquired by an employee and as I
have explained before you are not employee of your uncle Bernanrdo. It has also been stated in Art. 82 of the Labor
Code that “The provisions of this Title shall apply to employees in all establishments and undertakings whether for profit
or not, but not to ... field personnel”. The title being referred to in Art.82 is Title I: WORKING CONDITIONS AND REST PERIODS of the
labor code. As I have also stated in the precious para you are considered a field personnel. Hence, you are not entitled to
the benefits you mentioned.

CASE # 3
From the facts that you have told me, I have gathered that these are the problems that we need to resolve: 1) Whether
you are an employee of the Beauty Salon; 2) What is the effect of your forced resignation; 3) Do you have a cause of
action against Beauty Parlor ; and 4) Whether you are entitled to the 13th month pay.

In order to resolve the other issues it is necessary that we resolve the question of whether er-ee rel exists. The answer
is in the affirmative. The case of CORPORAL vs NATIONAL LABOR RELATIONS
COMMISSION states that “The following elements must be present for an employer-
employee relationship to exist: (1) the selection and engagement of the workers; (2) power
of dismissal; (3) the payment of wages by whatever means; and (4) the power to control
the worker's conduct, with the latter assuming primacy in the overall consideration. It
further states that “The power to control refers to the existence of the power and not
necessarily to the actual exercise thereof, nor is it essential for the employer to actually
supervise the performance of duties of the employee. It is enough that the employer has
the right to wield that power” The first two requisites can be affirmed from the fact that you
were hired as a hairstylist in Beauty Parlor on Sept 10, 2010 and you were paid basic
salary plus commission. The fourth and most important requisite, which is the power of
control, can be affirmed from the fact that you rendered service in Beauty Parlor from
10:00 AM to 10:00 PM and you have been continuously working there for almost 6 years.
Hence Beauty Parlor had a power of control over you.

Since it has now been estb that you are a ee of Beauty Parlor, we can now resolve the
2nd issue. Your forced resignation is tantamount to illegal dismissal. Article 279 (Security of
Tenure) of the LC states that “ An employee who is unjustly dismissed from work shall be entitled to reinstatement
without loss of seniority rights and to his backwages computed from the time his compensation was withheld from him
up to time of his reinstatement.” The case of COCA-COLA BOTTLERS PHILS., INC at al. vs. DANIEL has also stated that
“Illegally dismissed employees are entitled to both 1) reinstatement without loss of seniority rights and other
privileges; and 2) full back wages.” It also stated that “The payment of separation pay has been considered an
acceptable alternative to reinstatement when the latter is no longer desirable or viable because of the parties
strained relations as a consequence of the litigation. Thus the effect of your forced resignation is that you are
either entitled to reinstatement without loss of seniority rights and other privileges and full backwages or separation pay
and full backwages.

On the third issue, your cause of action would be illegal dismissal. Article 279 (Security of Tenure) of the LC states that
“In case of regular employment, the employer shall not terminate the services of an employee except for a just
cause or when authorized by this Title”. PAGUIO vs NATIONAL LABOR RELATIONS
COMMISSION has stated that “in the dismissal of employees, the twin requirements of
notice and hearing are essential elements of due process”. The aforesaid case has also
stated that “The employer must furnish the worker two written notices: [1] one to
apprise him of the particular acts or omissions for which his dismissal is sought; and [2]
the other to inform him of his employer's decision to dismiss him. As to the requirement
of a hearing, the essence of due process lies simply in an opportunity to be heard, and
not always and indispensably in an actual hearing”.

In relating the aforesaid case to your situation, Mr. Atimado, you stated to me that you were forced to
sign the resignation letter and this fact shows that you were illegally dismissed since the twin requirements of notice
and hearing are absent. Thus you can file a case against Beauty Parlor having as a cause of action you illegal
dismissal.

On the issue about the 13th month pay, the answer is also in the affirmative. The 13th Month
Pay Law states that "all rank and file employees are now entitled to a 13th month pay
regardless of the amount of basic salary that they receive in a month. Such employees are
entitled to the benefit regardless of their designation or employment status, and
irrespective of the method by which their wages are paid, provided that they have worked
for at least one (1) month during a calendar year”. Thus you can receive a 13th month
pay even though you receive commission on top of your basic monthly salary since
you have already worked for more than 1 month during a calendar year in Beauty
Parlor.
CASE # 4
From the facts you have disclosed to me, I deduced the following issues: ; 1)Whether you are an ee of the church; 2)
Whther you have a cause of action against Fr. Ramon; 3) Whether you can file a labor case before the labor tribunal
against Fr. Ramon; and 4) whether you are entitled to SIL, 13th month pay and wage differential

Before delving into the other issues, it is important that we resolve the issue of whther you are an ee of fr.
Ramon.With the facts that you have given to me I have deduced that no employer-employee relationship exists.
It has been held in a long line of cases that in order to determine if there exists en er-ee relationship
the four fold test must be used.. The case of VIAÑA vs. PIGA discussed about the four fold test by
stating that “In determining the existence of employer-employee relationship, the following elements are generally
considered, namely: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power
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of dismissal; and (4) the power to control the employees’ conduct — although the latter is the most important
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element”. The case of CONTINENTAL MARBLE CORP. ET AL. vs. NATIONAL LABOR RELATIONS
COMMISSION stated that “Absent the power to control the employee with respect to the means and methods by
which his work was to be accomplished, there was no employer-employee relationship between the parties.” Thus
without this element then no er-ee rel. Exists.

Mr Nay, the power of control is not present in your situation. You have no designated working hours and you are
free to accomplish the tasks required of you by Fr. Ramon in whatever way you wish to accomplish it. The only
control that Fr. Ramon has on your work is only with regard to the result but not as to the means and manner of
accomplishing the task. Thus you are regarded as an independent contractor and not an employee.

With regard to the 3rd issue, you cannot file a case against Fr. Ramon in the labor tribunal since the labor tribunal only
take cognizance of cases that arise out of er-ee relationship. The jurisdiction of labor arbiters and the
NLRC is specified in Article 217 of the Labor Code as follows: 1. Unfair labor practice cases;
2. Termination disputes; 3. If accompanied with a claim for reinstatement, those cases that
workers may file involving wage, rates of pay, hours of work and other terms and conditions of
employment; 4. Claims for actual, moral, exemplary and other forms of damages arising from the
employer-employee relations; 5. Cases arising from any violation of Article 264 of this Code,
including questions involving the legality of strikes and lockouts; and 6. Except claims for
Employees Compensation, Social Security, Medicare and maternity benefits, all other claims,
arising from employer-employee relations, including those of persons in domestic or household
service, involving an amount of exceeding five thousand pesos (P5,000.00) regardless of whether
accompanied with a claim for reinstatement. The NLRC is, therefore, correct in concluding that the Labor Arbiter has
no jurisdiction over the case and that the same is cognizable by the regular courts”. Thus you can file the case in a
regular court, to answer the 2nd issue, in an ordinary civil action. It is an ordinary civil action since
the case of AFP vs.NATIONAL LABOR RELATIONS COMMISSION also stated that “As an independent
contractor, his claim for unpaid commission should have been litigated in an ordinary civil action”

You are also not entitled to the benefits you mentioned since those benefits can only be enjoyed by an ee and you are
not an ee of Fr. Ramon. Art. 82 of the LC states that “The provisions of this Title shall apply to employees in all establishments and
undertakings whether for profit or not....”. The title being referred to in Art.82 is Title I: WORKING CONDITIONS AND REST PERIODS of the
labor code. Thus an independent contractor is not entitled to the benefits under the said Title since it states that it applies to employees
only.
CASE # 5

With regard your first quesry, the defences you have under the law are to maintain that no er-ee rel exist bet you and
the supposed ee; you have the right to dismiss the ee since it is founded on just and authorzed cause and it was done
with due process.

In order to determine if there exists en er-ee relationship the four fold test must be used. The case of
VIAÑA vs. PIGA discussed about the four fold test by stating that “In determining the existence of employer-
employee relationship, the following elements are generally considered, namely: (1) the selection and engagement of
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the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control the employees’
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conduct — although the latter is the most important element”. If you maintain that no ee-ee relationship exist
because the power of control is not present since you do not have control over the means and manner of how
your worker performs his task but only have control as the result thereof then the worker will be classified as
an independent contractor. And since he is not an ee then he cannot file a labor case of illegal dismissal
against you since that type of case can only be filed by an ee.

You may also state that he is your ee but he was not illegally dismissed since you have complied with the twin
requirements of notice and hearing. You have even furnished him two written notices: one to apprise
him of the particular acts or omissions for which his dismissal is sought; and the other to
inform him of his employer's decision to dismiss him.Thus there was due process in your ee’s
dismissal.

With regard to your 2nd query, in order to protect yourself from unscrupulous workers you should hire independent
contractors. If you hire independent contractors then they cannot be regarded as ees. So your workers cannot file a
labor case against you nor claim the benefits stated in Book III Title I Article 82 of the labor code.