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Television (TAPE) v.

Servaa

Facts:
TAPE is a domestic corporation engaged in the production of television programs, such as the longrunning variety program, Eat Bulaga!. Its president is Antonio P. Tuviera (Tuviera). Respondent Roberto C. Servaa had served as a security guard for TAPE from March 1987 until he was terminated on 3 March 2000 Respondent filed a complaint for illegal dismissal and nonpayment of benefits against TAPE o He alleged that he was first connected with Agro-Commercial Security Agency but was later on absorbed by TAPE as a regular company guard and was detailed at Broadway Centrum in Quezon City where Eat Bulaga! regularly staged its productions. o On 2 March 2000, respondent received a memorandum informing him of his impending dismissal on account of TAPEs decision to contract the services of a professional security agency. o He claimed that the holiday pay, unpaid vacation and sick leave benefits and other monetary considerations were withheld from him. He further contended that his dismissal was undertaken without due process and violative of existing labor laws, aggravated by nonpayment of separation pay. o insisted that he was a regular employee having been engaged to perform an activity that is necessary and desirable to TAPEs business for thirteen In a motion to dismiss which was treated as its position paper, TAPE countered that o the labor arbiter had no jurisdiction over the case in the absence of an employer-employee relationship between the parties o that respondent was an independent contractor falling under the talent group category and was working under a special arrangement which is recognized in the industry

LABOR ARBITER NLRC reversed the Labor Arbiter and considered respondent a mere program employee Primary standard to determine regularity of employment is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. o In the business of production of television shows, security services may not be deemed necessary and desirable in the usual business of the employer. Even without the performance of such services on a regular basis, respondents companys business will not grind to a halt. Unlike a regular employee, he did not observe working hours. He worked for other companies, such as M-Zet TV Production, Inc. at the same time that he was working for respondent company. declared respondent to be a regular employee of TAPE because the nature of the work of respondent, which is securing and maintaining order in the studio, as necessary and desirable in the usual business activity of TAPE ruled that the termination was valid on the ground of redundancy

CA

Reversed the ruling of the NLRC

ISSUE: whether an employer-employee relationship exists between TAPE and respondent.

HELD:
Jurisprudence is abound with cases that recite the factors to be considered in determining the existence of employer-employee relationship, namely: a. the selection and engagement of the employee; i. The selection and hiring of petitioner was done by private respondents ii. By informing petitioner that his services will be terminated, through the memorandum, as soon as the services of the newly hired security agency begins, private respondents in effect acknowledged petitioner to be their employee. For the right to hire and fire is another important element of the employer-employee relationship. b. payment of wages; i. Payment as admitted by private respondents was given by them on a monthly basis at a rate of P5,444.44. ii. TAPE prefers to designate such amount as talent fees. Wages, as defined in the Labor Code, are remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for service rendered or to be rendered. It is beyond dispute that respondent received a fixed amount as monthly compensation for the services he rendered to TAPE. c. the power of dismissal; and d. the employer's power to control the employee with respect to the means and method by which the work is to be accomplished (control test: most important) i. there is an employer-employee relationship when the person for whom the services are performed reserves the right to control not only the end achieved but also the manner and means used to achieve that end. ! The bundy cards representing the time petitioner had reported for work are evident proofs of private respondents control over petitioner more particularly with the time he is required to report for work during the noontime program of Eat Bulaga! If it were not so, petitioner would be free to report for work anytime ! The daily time cards of petitioner are not just for mere record purposes as claimed by private respondents. It is a form of control by the management of private respondent TAPE. ii. TAPE further denies exercising control over respondent and maintains that the latter is an independent contractor ! Aside from possessing substantial capital or investment, a legitimate job contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job, work or service on its own account and under its own responsibility according to its own manner and method, and free from the control and direction of the principal in all matters connected with the performance of the work except as to the results thereof. TAPE failed to establish that respondent is an independent contractor. As found by the Court of Appeals: More importantly, respondent had been continuously under the employ of TAPE for a span of 5 years. Regardless of whether or not respondent had been performing work that is necessary or desirable to the usual business of TAPE, respondent is still considered a regular employee under Article 280 of the Labor Code. As a regular employee, respondent cannot be terminated except for just cause or when authorized by law. It is clear that respondents termination was due to redundancy, which is an authorized cause however Art. 283 of the Labor Code requires a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year or service, whichever is higher.