Almirante: The control test in employment | SunStar

Almirante: The control test in employment

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Almirante: The control test in employment

Friday, August 18, 2017

IN a case for illegal dismissal with monetary claims, respondent Carlos A. Ruizol alleged that he was a mechanic at Norkis Distributors, Inc. (NDI) assigned at its Surigao City branch where petitioner Allan Bazar was the manager. He was paid a monthly salary of P2,050 and worked from 8 a.m. to 5 p.m. with a one-hour meal break for six days in a week.

Upon the other hand, petitioner averred that NDI is a corporation engaged in the sale, wholesale and retail of Yamaha motorcycle units. Respondent is not an employee but a franchised mechanic of NDI, pursuant to a retainership agreement. Being the owner of a motor repair shop, he performed repair warranty service, back repair of Yamaha units, and ordinary repair at his own shop.

The Labor Arbiter (LA) found respondent a regular employee of NDI. The National Labor Relations Commission (NLRC) reversed the ruling of the LA finding, among others, that NDI had no power of control and supervision over the means and method by which respondent performed his job as mechanic. The Court of Appeals (CA) set aside the NLRC decision and found that there was an employer-employee relationship between respondent and NDI. Did the CA commit a reversible error?

Ruling: No.

The control test is the most crucial and determinative indicator of the presence or absence of an employer-employee relationship. Under the control test, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end achieved, but also the manner and means to be used in reaching that end.

Petitioner asserts that NDI did not exercise the power of control over respondent because he is free to use his own means and methods by which his work is to be accomplished.

The records show the contrary. It was shown that respondent had to abide by the standards sets by NDI in conducting repair work on Yamaha motorbikes done in NDI’s service shop.

As a matter of fact, on allegations that respondent failed to live up to the demands of the work, he was sent several memoranda by NDI.

We agree with the Labor Arbiter that the presence of control is evident thus:

This Branch agree with the complainants’ contention that there is no contract and that he is a regular employee as shown in Annexes “2” & “3” respectively of the respondents position paper, as follows:

“Furthermore, you are directed and advice to religiously follow orders from your immediate superior x x x

Failure on your part to submit a written explanation will be construed as a waiver of your right and your case will be decided based on available information”

The above memo is so worded in a way that it unmistakably shows that it is addressed to the respondent who is an employee of NDI. It shows clearly the presence of the element of “control” by NDI and petitioner over respondent’s manner of work. (Perez, J., 3rd Division, Allan Bazar v. Carlos A. Ruizol, G.R. No. 198782, Oct. 19, 2016).

Published in the SunStar Cebu newspaper on August 19, 2017.

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