LVN PICTURES, INC. vs. PHILIPPINE MUSICIANS Guild (FFW) & COURT

OFINDUSTRIALRELATIONSSAMPAGUITA PICTURES, INC. vs. PHILIPPINE MUSICIANS Guild (FFW) &

COURT OFINDUSTRIALRELATIONS

FACTS:

Respondent Philippine Musicians Guild (FFW) is a duly registered legitimate labor organization.

LVN Pictures, Inc., Sampaguita Pictures, Inc., and Premiere Productions, Inc. are corporations, duly organized

under the Philippine laws, engaged in the making of motion pictures and in the processing and distribution

thereof. Petitioner companies employ musicians for the purpose of making music recordings for title

music, background music, musical numbers, finale music and other incidental music, without which a

motion picture is incomplete. Ninety-five(95%) percent of all the musicians playing for the musical

recordings of said companies are members of the Guild. The Guild has no knowledge of the

existence of any other legitimate labor organization representing musicians in said companies.

Premised upon these allegations, the Guild prayed that it be certified as the sole and exclusive

bargaining agency for all musicians working in the aforementioned companies. In their respective

answers, the latter denied that they have any musicians as employees, and alleged that the musical

numbers in the filing of the companies are furnished by independent contractors. The lower court sustained the Guilds

theory. Are consideration of the order complained of having been denied by the Court en banc, LVN

Pictures, inc., and Sampaguita Pictures, Inc., filed these petitions for review for certiorari.

ISSUE:

Whether the musicians in question (Guild members) are employees of the petitioner film

companies.

RULING:

YES The Court agreed with the lower courts decision, to wit: Lower court resorted to apply R.A. 875 and US

Laws and jurisprudence from which said Act was patterned after. (Since statutes are to be construed in

the light of purposes achieved and the evils sought to be remedied). It ruled that the work of the

musical director and musicians is a functional and integral part of the enterprise performed at the same studio

substantially under the direction and control of the company. In other words, to determine whether a

person who performs work for another is the latter's employee or an independent contractor, the

National Labor Relations relies on 'the right to control' test . Under this test an employer-employee

relationship exist where the person for whom the services are performed reserves the right to

control not only the end to be achieved, but also the manner and means to be used in reaching the

end. (United InsuranceCompany, 108, NLRB No. 115.).Notwithstanding that the employees are

called independent contractors', the Boardwill hold them to be employees under the Act where the

extent of the employer'scontrol over them indicates that the relationship is in reality one of

employment.(John Hancock Insurance Co., 2375-D, 1940, Teller, Labor Dispute Collective Bargaining,

Vol.). The right of control of the film company over the musicians is shown (1) by calling the

musicians through 'call slips' in 'the name of the company; (2) by arranging schedules in its studio for

recording sessions; (3) by furnishing transportation and meals to musicians; and(4) by supervising

and directing in detail, through the motion picture director, the performance of the musicians before

the camera, in order to suit the music they are playing to the picture which is being flashed on the

screen. The musical directors have no such control over the musicians involved in the present

case. Said musical directors control neither the music to be played, nor the musicians playing it. The

Premier Production did not appeal the decision of the Court en banc (thats why its not one of the

petitioners in the case) film companies summon the musicians to work, through the musical

directors. The film companies, through the musical directors, fix the date, the time and the place of

work. The film companies, not the musical directors, provide the transportation to and from the

studio. The film companies furnish meal at dinner time. It is well settled that "an employer-

employee relationship exists . . .where the person for whom the services are performed reserves a

right to control not only the end to be achieved but also the means to be used in reaching such end .

. . ." The decisive nature of said control over the "means to be used", is illustrated in the case of

Gilchrist Timber Co., et al., in which, by reason of said control, the employer-employee relationship

was held to exist between the management and the workers, notwithstanding the intervention of an

alleged independent contractor, who had, and exercise, the power to hire and fire said workers. The

aforementioned control over the means to be used" in reading the desired end is possessed and

exercised by the film companies over the musicians in the cases before us. WHEREFORE, the order

appealed from is hereby affirmed, with costs against petitioners herein. It is so ordered

Dy Keh Beng vs. Intl Labor and Maritime Union FACTS: A charge of unfair labor practice was filed against Dy Keh Beng, a proprietor of a basket factory, bydismissing Solano and Tudla for their union activities. Dy Keh Beng contended that he did not know Tudla and Solano was not his employee because the latter came to the establishment only when there was work which he did on pakiaw basis. Dy Keh Beng countered with a special defense of simple extortion committed by the head of the labor union. ISSUE: W/N there existed an employee-employer relation between petitioner and respondents HELD: Yes. Evidence showed that the work of Solano and Tudla was continuous except in the event of il lness, although their services were compensated on piece basis. The control test calls for the existence of the right to control the manner of doing the work, not the actual exercise of the right considering that Dy Keh Beng is engaged in the manufacture of baskets known as kaing, those working under Dy would be subject to Dys specifications such as the size and quality of the kaing. And since the laborers are done at Dys establishments, i t could beinferred that Dy could easily exercise control upon them. As to the contention that Solano was not an employee because he worked on piece basis, the court ruled that it should be determined that if indeed payment by piece is just a method of compensation and does not define the essence of the relation. Payment cannot be construed by piece where work is done in such establishment so as to put the worker completely at liberty to turn him out and take it another at pleasure Justice Perfecto also contended that pakyaw system is a labor contract between employers and employees between capitalists and laborers. Wherefore, the award of backwages is modified to an award of backwages for 3 years at the rated of compensation the employees were receiving at the time of dismissal.

ABS-CBN BROADCASTING CORPORATION vs. MARLYN NAZARENO, MERLOU GERZON, JENNIFER

DEIPARINE, and JOSEPHINE LERASAN (G.R. No. 164156, September 26, 2006)

Facts:

Petitioner ABS-CBN Broadcasting Corporation (ABS-CBN) is engaged in the broadcasting business and

owns a network of television and radio stations, whose operations revolve around the broadcast,

transmission, and relay of telecommunication signals. The respondents Nazareno, Gerzon,

Deiparine, and Lerasan as production assistants (PAs) on different dates were employed by the

Petitioner, assigned at the news and public affairs, for various radio programs in the Cebu

Broadcasting Station, with a monthly compensation of P4,000. They were issued ABS-CBN

employees identification cards and were required to work for a minimum of eight hours a day,

including Sundays and holidays. They were under the control and supervision of Assistant Station

Manager Dante J. Luzon, and News Manager Leo Lastimosa.

On December 19, 1996, petitioner and the ABS-CBN Rank-and-File Employees executed a Collective

Bargaining Agreement (CBA) to be effective during the period from December 11, 1996 to December

11, 1999. However, since petitioner refused to recognize PAs as part of the bargaining unit,

respondents were not included to the CBA.

On October 12, 2000, respondents filed a Complaint for Recognition of Regular Employment Status,

Underpayment of Overtime Pay, Holiday Pay, Premium Pay, Service Incentive Pay, Sick Leave Pay,

and 13th Month Pay with Damages against the petitioner before the NLRC. The Labor Arbiter

directed the parties to submit their respective position paper however they failed to file their

position papers within the reglementary period, Labor Arbiter Jose G. Gutierrez dismissed the

complaint without prejudice for lack of interest to pursue the case. Respondents received a copy of

the Order on May 16, 2001. Instead of re-filing their complaint with the NLRC within 10 days from

May 16, 2001, they filed, on June 11, 2001, an Earnest Motion to Refile Complaint with Motion to

Admit Position Paper and Motion to Submit Case for Resolution. The Labor Arbiter granted this

motion in an Order dated June 18, 2001, and forthwith admitted the position paper of the

complainants.

On July 30, 2001, the Labor Arbiter rendered judgment in favor of the respondents, and declared

that they were regular employees of petitioner; as such, they were awarded monetary benefits. On

appeal to the NLRC, it ruled that respondents were entitled to the benefits under the CBA because

they were regular employees who contributed to the profits of petitioner through their

labor. Petitioner thus filed a petition for certiorari under Rule 65 of the Rules of Court before the CA,

raising both procedural and substantive issues. CA Affirmed the ruling of the NLRC.

ISSUE

Whether the appellate court committed palpable and serious error of law when it affirmed the

rulings of the NLRC, and entertained respondents appeal from the decision of the Labor Arbiter

despite the admitted lapse of the reglementary period within which to perfect the appeal.

HELD

We agree with petitioners contention that the perfection of an appeal within the statutory or

reglementary period is not only mandatory, but also jurisdictional; failure to do so renders the

assailed decision final and executory and deprives the appellate court or body of the legal authority

to alter the final judgment, much less entertain the appeal. However, this Court has time and again

ruled that in exceptional cases, a belated appeal may be given due course if greater injustice may

occur if an appeal is not given due course than if the reglementary period to appeal were strictly

followed. The Court resorted to this extraordinary measure even at the expense of sacrificing order

and efficiency if only to serve the greater principles of substantial justice and equity.

In the case at bar, the NLRC did not commit a grave abuse of its discretion in giving Article 223 of the

Labor Code a liberal application to prevent the miscarriage of justice. Technicality should not be

allowed to stand in the way of equitably and completely resolving the rights and obligations of the

parties. We have held in a catena of cases that technical rules are not binding in labor cases and are

not to be applied strictly if the result would be detrimental to the workingman.

WPP Marketing Communications, Inc., et al. vs. Jocelyn M. Galera GR No. 169207; March 25, 2010 Facts: Petitioner Jocelyn M. Galera is an American citizen, who was hired by respondent John Steedman, Chairman of WPP Worldwide and Chief Executive Officer of Mindshare, Co., a corporation based in Hong Kong, China, to work in the Philippines for private respondent WPP Marketing Communications, Inc. (WPP), a corporation registered and operating under the laws of Philippines. Under the employment contract, Galera would commence employment on September 1, 1999, with the position of Managing Director of Mindshare Philippines. Thus, without obtaining an alien employment permit, Galera commenced her employment with WPP Philippines on the said date. It was only after four months from the time she commenced employment that private respondent WPP filed before the Bureau of Immigration an application for petitioner Galera to receive a working visa. In the application, she was designated as Vice-President of WPP. Petitioner alleged that she was constrained to sign the application in order that she could remain in the Philippines and retain her employment. On December 14, 2000, private respondent Galera was verbally informed by Steedman that her

employment had been terminated. She received her termination letter the following day. Her termination prompted Galera to commence a complaint for illegal dismissal before the labor arbiter. The labor arbiter found WPP, Steedman, Webster, and Lansang liable for illegal dismissal and damages. Furthermore the labor arbiter stated that Galera was not only illegally dismissed but was also not accorded due process, saying that Galera was not given an opportunity by WPP to defend herself and explain her side. Thus, WPP did not observe both substantive and procedural due process in terminating Galeras employment. The labor arbiter ordered WPP to reinstate Galera and to pay her backwages, transportation and housing benefits, and moral and exemplary damages, among others. On appeal, the NLRC reversed the labor arbiters ruling. The NLRC ruled that Galera was WPPs Vice-President, and therefore, a corporate officer at the time she was removed by the Board of Directors on 14 December 2000. The NLRC ruled that the labor arbiter had no jurisdiction over the case because being a corporate officer, a case arising from her termination is considered as an intra-corporate dispute, which was cognizable by the Securities and Exchange Commission under P.D. 902-A (but now by the Regional Trial Courts designated as Commercial Courts by the Supreme Court pursuant to Section 5.2 of RA No.8799). The Court of Appeals reversed the NLRC. It ruled that Galeras appointment by the Board of Directors of the WPP as Vice President for Media had no legal effect as WPPs by-laws provided for only one Vice-President, which at that time was occupied. Furthermore, WPPs by-laws did not include a managing director as among its corporate officers. The Court of Appeals ordered WPP to pay Galera backwages and separation pay, as well as housing benefits, moral and exemplary damages, and attorneys fees, among others. The case was subsequently elevated to the Supreme Court. Issues: 1. Is Galera an employee or a corporate officer of WPP? 2. Did the labor arbiter have jurisdiction over the case? 3. Was Galera illegally dismissed? 4. Is Galera entitled to collect the award of backwages and damages even if she did not have an alien employment permit when she commenced her employment in the Philippines? Ruling (First Issue): Galera is an employee of WPP. She is not a corporate officer of WPP. An examination of WPPs by-laws resulted in a finding that Galeras appointment as a corporate officer (Vice-President with the operational title of Managing Director of Mindshare) during a special meeting of WPPs Board of Directors is an appointment to a non-existent corporate office. WPPs by-laws provided for only one Vice-President. At the time of Galeras appointment on December 31, 1999, WPP already had one

Vice-President in the person of Webster. Galera cannot be said to be a director of WPP also because all five directorship positions provided in the by-laws are already occupied. The appellate court further justified that Galera was an employee and not a corporate officer by subjecting WPP and Galeras relationship to the four-fold test: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employers power to control the employee with respect to the means and methods by which the work is to be accomplished. The appellate court found that Sections 1 and 4 of the employment contract mandate where and how often she is to perform her work; Sections 3, 5, 6 and 7 show that wages she receives are completely controlled by WPP; and Sections 10 and 11 clearly state that she is subject to the regular disciplinary procedures of WPP. (Second Issue): The Labor Arbiter had jurisdiction over the illegal dismissal complaint filed by Galera. Galera being an employee, the Labor Arbiter and the NLRC had jurisdiction over her illegal dismissal complaint. Article 217 of the Labor Code vests the Labor Arbiter with the jurisdiction to hear and decide, among others termination disputes, involving workers, whether agricultural or non-agricultural. (Third Issue): Yes, WPPs dismissal of Galera lacked both substantive and procedural due process. WPP failed to prove any just or authorized cause for Galeras dismissal. WPP was unable to substantiate the allegations of Steedmans December 15, 2000 letter to Galera, (questioning her leadership and competence). Galera, on the other hand, presented documentary evidence in the form of congratulatory letters, including one from Steedman, which contents are diametrically opposed to the December 15, 2000 letter. Also, the law requires that the employer must furnish the worker sought to be dismissed with two written notices before termination of employment can be legally effected: (1) notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice which informs the employee of the employers decision to dismiss him. Failure to comply with the requirements taints the dismissal with illegality. WPPs acts clearly show that Galeras dismissal did not comply with the two-notice rule. (Fourth Issue): No, Galera could not claim the employees benefits she is entitled under Philippine Labor Laws. The law and the rules are consistent in stating that the employment permit must be acquired prior to employment. Article 40 of the Labor Code states: "Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the Department of Labor. Section 4, Rule XIV, Book 1 of the Implementing Rules and Regulations provides, among others, that if an alien enters the country under a non-working visa and wishes to be employed thereafter, he may only be allowed to be employed upon presentation of a duly approved employment permit. Galera cannot come to this Court with unclean hands. To grant Galeras prayer is to sanction the violation of the Philippine labor laws requiring aliens to secure work permits before their

employment. We hold that the status quo must prevail in the present case and we leave the parties where they are. This ruling, however, does not bar Galera from seeking relief from other jurisdictions.

G.R. No. 169207/G.R. No. 169239, March 25, 2010.

WPP Marketing Communications, Inc. et al. vs. Jocelyn M. Galera/Jocelyn M. Galera vs. WPP

Marketing Communications, Inc. et al.,

Employee vs. corporate officer. Corporate officers are given such character either by the

Corporation Code or by the corporations by-laws. Under Section 25 of the Corporation Code, the

corporate officers are the president, secretary, treasurer and such other officers as may be provided

in the by-laws. Other officers are sometimes created by the charter or by-laws of a corporation, or

the board of directors may be empowered under the by-laws of a corporation to create additional

offices as may be necessary.

An examination of WPPs by-laws resulted in a finding that Galeras appointment as a corporate

officer (Vice-President with the operational title of Managing Director of Mindshare) during a special

meeting of WPPs Board of Directors is an appointment to a non-existent corporate office. WPPs

by-laws provided for only one Vice-President. At the time of Galeras appointment on 31 December

1999, WPP already had one Vice-President in the person of Webster. Galera cannot be said to be a

director of WPP also because all five directorship positions provided in the by-laws are already

occupied. Finally, WPP cannot rely on its Amended By-Laws to support its argument that Galera is a

corporate officer. The Amended By-Laws provided for more than one Vice-President and for two

additional directors. Even though WPPs stockholders voted for the amendment on 31 May 2000,

the SEC approved the amendments only on 16 February 2001. Galera was dismissed on 14

December 2000. WPP, Steedman, Webster, and Lansang did not present any evidence that Galeras

dismissal took effect with the action of WPPs Board of Directors.

Additionally, the following provisions in her employment contract are convincing indicators that

Galera was an employee and not a corporate officer: (1) it mandates where and how often she is to

perform her work; (2) the wages she receives are completely controlled by WPP; (3) she is subject to

the regular disciplinary procedures of WPP; (4) section 14 thereof clearly states that she is a

permanent employee not a Vice-President or a member of the Board of Directors; (5) the

intellectual property rights created or discovered by petitioner during her employment shall

automatically belong to private respondent WPP [Under the Intellectual Property Code, this

condition prevails if the creator of the work subject to the laws of patent or copyright is an employee

of the one entitled to the patent or copyright]; and (6) the disciplinary procedure states that her

right of redress is through Mindshares Chief Executive Officer for the Asia-Pacific. This last

circumstance implies that she was not even under the disciplinary control of WPPs Board of

Directors, and therefore, she could not have been a WPP corporate officer as only the WPP Board of

Directors could appoint and terminate its own corporate officer.

Maraguinot v. NLRC

FACTS:

Petitioner maintains that he was employed by respondents as part of the filming crew. He was

laterpromoted as an electrician. Petitioners tasks contained of loading movie equipment in the

shoothing area.Petitioners sought the assistance of their supervisor, Cesario, to facilitate their

request that respondents adjusttheir salary in accordance with the minimum wage law. Mrs. Cesario

informed petitioners that del Rosario wouldagree to increase their salary only if they signed a blank

employment contract. As petitioner refused to sign,respondents forced Enero (the other petitioner

who worked as a crew member) to go on leave. However, when hereported to work, respondent

refused to take him back. Maraguinot was dropped from the company payroll butwhen he returned,

he was again asked to sign a blank employment contract, and when he still refused,respondents

terminated his services. Petitioners thus sued for illegal dismissal.Private respondents assert that

they contract persons called producers to produce or make movies forprivate respondents and

contend that petitioners are project employees of the associate producers, who act asindependent

contractors. Thus, there is no ER-EE relationship.However, petitioners cited that their performance

of activities is necessary in the usual trade or business of respondents and their work in continuous.

ISSUE:

W/N ER-EE relationship exists

HELD:

Yes.With regards to VIVAs contention that it does not make movies but merely distributes motion

pictures,there is no sufficient proof to prove this contention.In respect to respondents allegation

that petitioners are project employees, it is a settled rule that thecontracting out of labor is allowed

only in case of job contracting. However, assuming that the associate producersare job contactors,

they must then be engaged in the business of making motion pictures. Associate producersmust

have tools necessary to make motion pictures. However, the associate producers in this case have

none of these. The movie-making equipment are supplied to the producers and owned by VIVA.

Thus, it is clear that theassociate producer merely leases the equipment from VIVA.In addition, the

associate producers of VIVA cannot be considered labor-only contractors as they did notsupply,

recruit nor hire the workers. It was Cesario, the Shooting Supervisor of VIVA, who recruited crew

members. Thus, the relationship between VIVA and its producers or associate producers seems to be

that of agency.With regards to the issue of illegal dismissal, petitioners assert that they were regular

employees who wereillegally dismissed. Petitioners in this case had already attained the status of

regular employees in view of VIVAsconduct. Thus, petitioners are entitled to back wages.A project

employee or a member of a work pool may acquire the status of a regular employee when:a.there is

a continuous rehiring of project employees even after a cessation of projectb.the tasks performed by

the alleged project employee are vital and necessary to the business of employer The tasks of

petitioners in loading movie equipment and returning it to VIVAs warehouse and fixing thelighting

system were vital, necessary and indispensable to the usual business or trade of the

employer.Wherefore, petition is granted.

JOSE SONZA vs. ABS-CBN BROADCASTING CORPORATIONG.R. No. 138051 June 10, 2004

FACTS:

In May 1994, ABS-CBN signed an agreement with the Mel and Jay Management and Development

Corporation (MJMDC). ABS-CBN was represented by its corporate officers while MJMDC was

represented by Sonza, as President and general manager, and Tiangco as its EVP and treasurer.

Referred to in the agreement as agent, MJMDC agreed to provide Sonzas services exclusively to

ABS-CBN as talent for radio and television. ABS-CBN agreed to pay Sonza a monthly talent fee of

P310, 000 for the first year andP317, 000 for the second and third year. On April 1996, Sonza wrote a

letter to ABS-CBN's President, Eugenio Lopez III, where he irrevocably resigned in view of the recent

events concerning his program and career. The acts of the station are violative of the Agreement and

said letter will serve as notice of rescission of said contract. The letter also contained the waiver and

renunciation for recovery of the remaining amount stipulated but reserves the right to seek recovery

of the other benefits under said Agreement. After the said letter, Sonza filed with the Department of

Labor and Employment a complaint alleging that ABS-CBN did not pay his salaries, separation pay,

service incentive pay, 13th month pay, signing bonus, travel allowance and amounts under the

Employees Stock Option Plan (ESOP). ABS-CBN contended that no employee-employer relationship

existed between the parties. However, ABS-CBN continued to remit Sonzas monthly talent feesbut

opened another account for the same purpose. The Labor Arbiter dismissed the complaint and

found that there is no employee-employer relationship. The LA ruled that he is not an employee by

reason of his peculiar skill and talent as a TV host and a radio broadcaster. Unlike an ordinary

employee, he was free to perform his services in accordance with his own style. NLRC and CA

affirmed the LA. Should there be any complaint, it does not arise from an employer-employee

relationship but from a breach of contract.

ISSUE: Whether or not there was employer-employee relationship between the parties.

HELD: There is no employer-employee relationship between Sonza and ABS-CBN. Petition denied.

Judgment decision affirmed. Case law has consistently held that the elements of an employee-

employerrelationship are selection and engagement of the employee, the payment of wages, the

power of dismissal and the employers power to control the employee on the means and methods

by which the work is accomplished. The last element, the so-called "control test", is the most

important element.

Television and Production Exponents, Inc. vs Roberto Servaa

542 SCRA 578 Labor Law Labor Standards Regular Employee Employer-employee

relationship Four Fold Test

FACTS:

Servaa started out as a security for the Agro-Commercial Security Agency (ACSA) since 1987. The

agency had a contract with TV network RPN 9.

On the other hand, Television and Production Exponents, Inc (TAPE). is a company in charge of TV

programming and was handling shows like Eat Bulaga! Eat Bulaga! was then with RPN 9.

In 1995, RPN 9 severed its relations with ACSA. TAPE retained the services of Servaa as a security

guard and absorbed him.

In 2000, TAPE contracted the services of Sun Shield Security Agency. It then notified Servaa that he

is being terminated because he is now a redundant employee.

Servaa then filed a case for illegal Dismissal. The Labor Arbiter ruled that Servaas dismissal is valid

on the ground of redundancy but though he was not illegally dismissed he is still entitled to be paid a

separation pay which is amounting to one month pay for every year of service which totals to

P78,000.00.

TAPE appealed and argued that Servaa is not entitled to receive separation pay for he is considered

as a talent and not as a regular employee; that as such, there is no employee-employer relationship

between TAPE and Servaa. The National Labor Relations Commission ruled in favor of TAPE. It ruled

that Servaa is a program employee. Servaa appealed before the Court of Appeals.

The Court of Appeals reversed the NLRC and affirmed the LA. The CA further ruled that TAPE and its

president Tuviera should pay for nominal damages amounting to P10,000.00.

ISSUE:

Whether or not there is an employee-employer relationship existing between TAPE and Servaa.

HELD:

Yes. Servaa is a regular employee.

In determining Servaas nature of employment, the Supreme Court employed the Four Fold Test:

1. Whether or not employer conducted the selection and engagement of the employee.

Servaa was selected and engaged by TAPE when he was absorbed as a talent in 1995. He is not

really a talent, as termed by TAPE, because he performs an activity which is necessary and desirable

to TAPEs business and that is being a security guard. Further, the primary evidence of him being

engaged as an employee is his employee identification card. An identification card is usually

provided not just as a security measure but to mainly identify the holder thereof as a bona fide

employee of the firm who issues it.

2. Whether or not there is payment of wages to the employee by the employer.

Servaa is definitely receiving a fixed amount as monthly compensation. Hes receiving P6,000.00 a

month.

3. Whether or not employer has the power to dismiss employee.

The Memorandum of Discontinuance issued to Servaa to notify him that he is a redundant

employee evidenced TAPEs power to dismiss Servaa.

4. Whether or not the employer has the power of control over the employee.

The bundy cards which showed that Servaa was required to report to work at fixed hours of the day

manifested the fact that TAPE does have control over him. Otherwise, Servaa could have reported

at any time during the day as he may wish.

Therefore, Servaa is entitled to receive a separation pay.

On the other hand, the Supreme Court ruled that Tuviera, as president of TAPE, should not be held

liable for nominal damages as there was no showing he acted in bad faith in terminating Servaa.

Regular Employee Defined:

One having been engaged to perform an activity that is necessary and desirable to a companys

business