PHILIPPINE GLOBAL COMMUNICATIONS, INC., petitioner, vs. RICARDO DE VERA, respondent. G.R. No. 157214 June 7, 2005
The principle of employee-employer relationship was discussed on this case (four fold test).
Facts:
On May 15, 1981, respondent De Vera, a physician by profession, offered his services to Philcom (petitioner) and proposed his plan of works to attend to the medical needs of its employees. The parties agreed and formalized respondent’s proposal in a document denominated as RETAINERSHIP CONTRACT which will be for a period of one year subject to renewal. Said contract was renewed yearly, from 1981 to 1994. However, for the years 1995 and 1996, renewal of the contract was only made verbally.
In December 1996, Philcom, through a letter, informed De Vera of its decision to discontinue the latter’s retainer’s contract effective December 31, 1996 because management has decided that it would be more practical to provide medical services to its employees through accredited hospitals near the company premises. On January 22, 1997, De Vera filed a complaint for illegal dismissal before the NLRC, alleging that he was dismissed without due process.
The Labor Arbiter dismissed De Vera’s complaint on the rationale that as a "retained physician" under a valid contract mutually agreed upon by the parties, De Vera was an "independent contractor" and that he "was not dismissed but rather his contract with Philcom ended when such contract was not renewed after December 31, 1996. NLRC, on appeal, reversed the decision of the Labor Arbiter finding that De Vera is a regular employee and ordered his reinstatement. CA agreed with NLRC but modified its decision that instead of reinstatement, it ordered Philcom to pay the respondent a separation pay instead.
ISSUE:
W/N an employer-employee relationship exists between PhilCom and De Vera.
RULING:
NO.
Applying the four-fold test to this case, we initially find that it was respondent himself who sets the parameters of what his duties would be in offering his services to petitioner. This is borne by no less than his letter #1 which reads:
“x x x I shall have the time and effort for the position of Company physician with your corporation if you deemed it necessary. I have the necessary qualifications, training and experience required by such position and I am confident that I can serve the best interests of your employees, medically.My plan of works and targets shall cover the duties and responsibilities required of a practitioner in industrial medicine which includes the following:1. Application of preventive medicine including periodic check-up of employees;2. Holding of clinic hours in the morning and afternoon for a total of five (5) hours daily for consultation services to employees;3. Management and treatment of employees that may necessitate hospitalization including emergency cases and accidents;4. Conduct pre-employment physical check-up of prospective employees with no additional medical fee;5. Conduct home visits whenever necessary;6. Attend to certain medical administrative functions such as accomplishing medical forms, evaluating conditions of employees applying for sick leave of absence and subsequently issuing proper certification, and all matters referred which are medical in nature.On the subject of compensation for the services that I propose to render to the corporation, you may state an offer based on your belief that I can very well qualify for the job having worked with your organization for some time now. x x x”
The fact that respondent was not considered an employee was recognized by De vera himself in a signed letter #2 to the respondent:
‘To carry out your memo effectively and to provide a systematic and workable time schedule which will serve the best interests of both the present and absent employee, may I propose an extended two-hour service (1:00-3:00 P.M.) during which period I can devote ample time to both groups depending upon the urgency of the situation. I shall readjust my private schedule to be available for the herein proposed extended hours, should you consider this proposal.
The tenor of this letter indicates that the complainant was proposing to extend his time with the respondent and seeking additional compensation for said extension. This shows that the respondent PHILCOM did not have control over the schedule of the complainant as it [is] the complainant who is proposing his own schedule and asking to be paid for the same. This is proof that the complainant understood that his relationship with the respondent PHILCOM was a retained physician and not as an employee. If he were an employee he could not negotiate as to his hours of work.
SC highlighted this portion of LA’s decision:
"xxx After more than ten years of services to PHILCOM, the complainant would have noticed that no SSS deductions were made on his remuneration or that the respondent was deducting the 10% tax for his fees and he surely would have complained about them if he had considered himself an employee of PHILCOM. But he never raised those issues. An ordinary employee would consider the SSS payments important and thus make sure they would be paid. The complainant never bothered to ask the respondent to remit his SSS contributions. This clearly shows that the complainant never considered himself an employee of PHILCOM and thus, respondent need not remit anything to the SSS in favor of the complainant."
Clearly, the elements of an employer-employee relationship are wanting in this case. We may add that the records are replete with evidence showing that respondent had to bill petitioner for his monthly professional fees. It simply runs against the grain of common experience to imagine that an ordinary employee has yet to bill his employer to receive his salary.
Finally, remarkably absent from the parties’ arrangement is the element of control, whereby the employer has reserved the right to control the employee not only as to the result of the work done but also as to the means and methods by which the same is to be accomplished.
Here, PhilCom had no control over the means and methods by which Dr. De Vera went about performing his work at the company premises. He could even embark in the private practice of his profession, not to mention the fact that respondent’s work hours and the additional compensation therefor were negotiated upon by the parties. In fine, the parties themselves practically agreed on every terms and conditions of respondent’s engagement, which thereby negates the element of control in their relationship. For sure, respondent has never cited even a single instance when petitioner interfered with his work.
Had only respondent read carefully the very statutory provision invoked by him, he would have noticed that in non-hazardous workplaces, the employer may engage the services of a physician "on retained basis." As correctly observed by the petitioner, while it is true that the provision requires employers to engage the services of medical practitioners in certain establishments depending on the number of their employees, nothing is there in the law which says that medical practitioners so engaged be actually hired as employees, adding that the law, as written, only requires the employer "to retain", not employ, a part-time physician who needed to stay in the premises of the non-hazardous workplace for two (2) hours.
Respondent takes no issue on the fact that petitioner’s business of telecommunications is not hazardous in nature. As such, what applies here is the last paragraph of Article 157 which, to stress, provides that the employer may engage the services of a physician and dentist "on retained basis", subject to such regulations as the Secretary of Labor may prescribe. The successive "retainership" agreements of the parties definitely hue to the very statutory provision relied upon by respondent.