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[G.R. No. 167638.� June 22, 2005]
ABS-CBN vs. MARQUEZ
THIRD DIVISION
Sirs/Mesdames:
Quoted hereunder, for your information, is a resolution of this Court dated JUN 22 2005 .
G.R. No. 167638 (ABS-CBN Broadcasting Corporation vs. Henrie Marquez, et al.)
Before us is this petition for review on certiorari assailing the December 20, 2004 decision [1] cralaw of the Court of Appeals in CA-G.R. SP No. 81750, reversing and setting aside an earlier decision [2] cralaw of National Labor Relations Commission (NLRC), 4th Division, Cebu City in Case No. V-000967-00 which, in turn, reversed the decision [3] cralaw of the Labor Arbiter in a complaint for illegal dismissal commenced by the herein respondents against petitioner ABS-CBN Broadcasting Corporation.
Petitioner hired the services of respondents on various dates
starting December, 1994 to undertake the production in the Cebuano dialect of
television serial programs for petitioner's week-day afternoon time slots in Cebu.
Respondents were assigned among three (3) production groups, each with its own
set of directors, writers, videographers, lightsmen, editors, actors and
utility personnel. Each production group was given a weekly budget, initially
at P30,000.00, which was later increased to P40,000.00 a week.
The television-series did so well that several more were subsequently produced. The production groups were continuously engaged to film succeeding programs to replace the concluded ones.
On June 15, 1999, respondents addressed a letter to petitioner asking for a 25% increase in their weekly budget, but the same was denied by petitioner's AVP for the Visayas Cluster, Ma. Luisa L. Ascalon. Instead, respondents were informed of the termination of their services effective August 13, 1999.
On August 27, 1999, respondents filed with the Regional Arbitration Branch (RAB) at Region VII of the Department of Labor and Employment their consolidated complaint for illegal dismissal; illegal deduction; non-payment of overtime and holiday pay; premium pay for holiday, rest day and night shift differential; non-payment of 13th month� pay, service incentive leave, separation pay, backwages; and attorney's fees.
On June 15, 2000, the Executive Labor Arbiter of RAB VII rendered a decision [4] cralaw in favor of respondents and ordered petitioner to pay to them their money claims.
However, on petitioner's appeal, the NLRC'S 4th Division at Cebu City reversed the decision of the Labor Arbiter, thus:
WHEREFORE, premises considered, judgment is hereby rendered granting the appeal of [petitioner], reversing and setting aside the Decision of the Executive Labor Arbiter dated 15 June 2000 and promulgating a new one dismissing all the consolidated complaints for lack of merit.
SO ORDERED.
Respondents moved for a reconsideration but their motion was denied by the NLRC's 4th Division in its resolution of July 30, 2003.
From there, respondents went to the Court of Appeals via a petition for certiorari, thereat docketed as CA-G.R. SP No. 81750, imputing grave abuse of discretion on the part of the NLRC's 4th Division in setting aside the Labor Arbiter's findings and in ruling that they were hired as contractual or project employees, i.e. as "talents" engaged for specific projects, under the special work arrangements with the petitioner, and in upholding the legality of their dismissal.
Respondents asserted that they are petitioner's regular employees and emphasized the fact of their continuous� work after each tele-series program and the very nature of their work, which is "necessary and desirable" to the business or trade of their employer [5] cralaw . They also asseverated that the application of the "four-fold test" in labor laws clearly shows the existence of an employer-employee relationship between the parties.
For its part, petitioner insisted that respondents were hired as program employees in the nature of contractual or project employment; that respondents were mere "talents", i.e. they were contracted because of their expertise or talents as program employees; and that respondents were, in effect, mere program employees under Policy Instruction No. 40, series of 1979 whom petitioner contracted due to their expertise for particular projects, in this case the production of the Visayan tele-series programs.
In the herein assailed decision [6] cralaw dated December 20, 2004, the Court of Appeals reversed that of the NLRC and reinstated the earlier decision of the Labor Arbiter, to wit:
WHEREFORE, the Petition for Certiorari is GRANTED, and the assailed Decision and Resolution of the National Labor Relation Commission (NLRC), 4th Division, Cebu City, in Case No. V-000050-02, are hereby REVERSED and SET ASIDE. The Decision of Executive Labor Arbiter of 15 June 2000 finding an employer-employee relationship between [respondents] and [petitioner] ABS-CBN Broadcasting Corporation and ordering the latter to pay [respondents'] money claims is REINSTATED in toto except that the computation of the backwages thereof should be reckoned until the finality of this decision. No pronouncement as to costs.
SO ORDERED.
Applying the "four-fold test" to determine the existence of an employer-employee relationship between the parties, the Court of Appeals viewed respondents as regular employees of petitioner and not independent contractors.
Respondents' employment with petitioner passed the "four-fold test" on employer-employee relations, namely: (1) the selection and engagement of the employee, or the power to hire; (2) the payment of wages; (3) the power to dismiss; and (4) the power to control the employee [7] cralaw .
Petitioner never denied having engaged the services of respondents. Neither did it controvert the fact that respondents received their pay from petitioner twice a month thru automated teller machines (ATM) and respondents were issued payslips bearing petitioner's corporate name on the heading. The payment of wages clearly rests upon petitioner. While a weekly budget is given and the directors are ostensibly given a free hand on how to spend the same subject only to petitioner's budgetary limitation, the hard reality is that such payments were done by the petitioner itself.
As correctly observed by the Labor Arbiter, the elements of control and supervision over the respondents were evident. Petitioner employed production supervisors who monitored and saw to it that the filming of the series shall be finished within a time-frame and the production output to conform to petitioner's standards. These were bolstered by various memoranda issued by petitioner relative to production work-approval of filming and editing schedule, new assignments of production crew and reminders to tele-series directors and editors regarding the standard policy on editing services. Respondents have to follow company rules in the work done in company premises. An overseer, in the person of an executive producer, is assigned by petitioner over each production crew to make sure that the end result is acceptable to petitioner, and the executive producer can dictate the work to be re-done. Petitioner also has control in the assignments of crew members and can thus re-assign or transfer any of them to another production group, thereby belying petitioner's contention that the directors are the ones that control the whole production. All these, taken together, unmistakably show petitioner's power of control over respondents' work.
Anent the power of dismissal and suspension, it cannot be denied that petitioner exercised such. The records clearly show that petitioner sanctioned disciplinary measures on some of the respondents for some infraction of company rules thru disciplinary measures on erring employees. For sure, respondent Orlando Carillo was suspended for one week by his production head on January 25, 1999 for failure to edit an episode which was to be sent to petitioner's Zamboanga station for airing.
Additionally, the fact that petitioner itself provided the production equipment such as video cameras, lights, microphone and TV monitors, largely discounts petitioner's claim that respondents were independent contractors.
It may be so that respondents were assigned to a particular tele-series. However, petitioner can and did immediately reassign them to a new production upon completion of a previous one. Hence, they were continuously employed, the tele-series being a regular feature in petitioner's network programs. Petitioner's continuous engagement of respondents from one production after another, for more than five years, made the latter part of petitioner's workpool who cannot be separated from the service without cause as they are considered regular. A project employee or a member of a workpool may acquire the status of a regular employee when the following concur: there is continuous rehiring of project employees even after the cessation of the project; [8] cralaw and the tasks performed by the alleged "project employee" are vital, necessary, and indispensable to the usual business or trade of his employer. [9] cralaw It cannot be denied that the services of respondents as members of a crew in the production of a tele-series are undoubtedly connected with the business of the petitioner. This Court has held that the primary standard in determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the business or trade of his employer. [10] cralaw Here, the activity performed by respondents is, without doubt, vital to petitioner's trade or business.
We agree with the Court of Appeals when it upheld the conclusion of the Labor Arbiter that petitioner broadcasts and produces its own television series and other programs, whether in Cebu or in Manila; and that there is no distinction between its Cebu station and the mother station because they are one and the same, more so due to lack of showing by the petitioner that its Cebu station is independent from its mother station. It cannot thus be said that petitioner is primarily just involved in mere broadcasting from satellite feeds or other sources. That the production of the television series is vital, necessary and desirable to petitioner's usual business is beyond question.
It is a matter of record that respondents have rendered almost five (5) years of continuous service to petitioner, doing work that is necessary and desirable to the usual business of the latter. Hence, even granting on the extreme that respondents were not performing work that is vital, necessary and indispensable to the usual business of petitioner, nonetheless the second paragraph of Article 280 of the Labor Code still applies. It reads:
ART. 280. REGULAR AND CASUAL EMPLOYMENT
xxx��� xxx������ xxx
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 while such activity exists. (Emphasis supplied).
We thus rule and so hold that respondents are petitioner's regular employees, at least with respect to the production of petitioner's Visayan tele-series programs and until such activity exists.
Petitioner relied upon and took undue advantage of Policy Instruction No. 40, by treating herein respondents as talents and classifying them as independent contractors and freelancers.
Policy Instruction No. 40 pertinently provides:
Program employees are 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 days from its consummation. (Emphasis supplied)
Ironically, however, petitioner failed to adduce an iota proof that the requirements for program employment were even complied with by it. It is basic that project or contractual employees are appraised of the project they will work under a written contract, specifying, inter alia, the nature of work to be performed and the rates of pay and the program in which they will work. Sadly, however, no such written contract was ever presented by the petitioner. Petitioner is in the best of position to present these documents. And because none was presented, we have every reason to surmise that no such written contract was ever accomplished by the parties, thereby belying petitioner's posture.
Worse, there was no showing of compliance with the requirement that after every engagement or production of a particular television series, the required reports were filed with the proper government agency, as provided no less under the very Policy Instruction invoked by the petitioner, nor under the Omnibus Implementing Rules of the Labor Code for project employees. This alone bolsters respondents' contention that they were indeed petitioner's regular employees since their employment was not only for a particular program.
To recapitulate, respondents, due to their length of service, had already attained the status of regular employment and are thus entitled to security of tenure provided for under our labor laws. Consequently, they may only be validly dismissed from service upon petitioner's compliance with the legal requisites for termination, both in their substantive and procedural aspects. In this connection, it bears emphasis that under the Labor Code and its Omnibus Implementing Rules, not only must the dismissal be for a just or authorized cause [11] cralaw , but that the rudimentary requirements of due process: notice and hearing, [12] cralaw must likewise be observed before a regular employee may be dismissed. Without the concurrence of these two requisites, the termination would be, in the eyes of the law, illegal [13] cralaw .
It is incumbent upon petitioner to prove that its dismissal of respondents was for a valid cause and that they were afforded procedural due process before termination. As it is, petitioner failed to discharge this burden. Its only assertion is that the dismissal was due to the expiration or completion of contract, which is not even a ground for termination allowed by law. Worse, petitioner failed to establish that respondents were given ample opportunity to contest the legality of their dismissal. All that petitioner did was simply to furnish them with their walking papers. Inarguably, petitioner denied them of due process. In fine, with petitioner's failure to establish compliance with the legal requirements on termination of employment under the Labor Code, the appellate court was correct in declaring respondents' dismissal as tainted with illegality.
WHEREFORE, the instant petition is hereby DENIED.
SO ORDERED.
Very truly yours,
(Sgd.) LUCITA ABJELINA-SORIANO
Clerk of Court
Endnotes:
[1] cralaw Penned by Associate Justice Vicente L. Yap with Associate Justices Mercedes Gozo-dadole and Pampio A. Abarintos, concurring.
[2] cralaw Penned by Commissioner Edgardo M. Emerlan and concurred in by Commissioner Oscar S. Uy, with Presiding Commissioner Irenea E. Ceniza, dissenting.
[3] cralaw Penned by Executive Labor Arbiter Reynoso A. Belarmino.
[4] cralaw Rollo, pp. 556-578.
[5] cralaw Vide: Maraguinot, Jr. vs. NLRC, et al., G.R. No. 120969, January 22, 1998.
[6] cralaw Rollo, pp.57-69.
[7] cralaw Vinoya vs. NLRC, G.R. No. 126586, February 2, 2000, citing Rhone-Poulenc Agrochemicals, Inc. vs. NLRC, et al., 217 SCRA 249 [1993].
[8] cralaw Philippine National Construction Corporation vs. NLRC, 174 SCRA 191, 193 [1989].
[9] cralaw Capital Industrial Construction Group vs. NLRC, 221 SCRA 169, 473, 474[1993.
[10] cralaw Mgantto vs. NLRC, 185 SCRA 21 [1990].
[11] cralaw Articles 281-284 of the Labor Code.
[12] cralaw Vinoya vs. NLRC, supra, citing Shaw vs. NLRC, 202 SCRA 7 [1991].
[13] cralaw Shaw vs. NLRC, supra, citing San Miguel Corporation vs. NLRC, 173 SCRA 314 [1989].
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