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G.R. No.

167622 June 29, 2010



This resolves the Motion for Reconsideration1 dated December 3, 2008 filed by respondent The Manufacturers Life
Insurance Co. (Phils.), Inc. (Manulife) to set aside our Decision of November 7, 2008. In the assailed decision, we found
that an employer-employee relationship existed between Manulife and petitioner Gregorio Tongko and ordered
Manulife to pay Tongko backwages and separation pay for illegal dismissal.

The following facts have been stated in our Decision of November 7, 2008, now under reconsideration, but are
repeated, simply for purposes of clarity.

The contractual relationship between Tongko and Manulife had two basic phases. The first or initial phase began on July
1, 1977, under a Career Agent’s Agreement (Agreement) that provided:

It is understood and agreed that the Agent is an independent contractor and nothing contained herein shall be
construed or interpreted as creating an employer-employee relationship between the Company and the Agent.


a) The Agent shall canvass for applications for Life Insurance, Annuities, Group policies and other products offered by
the Company, and collect, in exchange for provisional receipts issued by the Agent, money due to or become due to the
Company in respect of applications or policies obtained by or through the Agent or from policyholders allotted by the
Company to the Agent for servicing, subject to subsequent confirmation of receipt of payment by the Company as
evidenced by an Official Receipt issued by the Company directly to the policyholder.


The Company may terminate this Agreement for any breach or violation of any of the provisions hereof by the Agent by
giving written notice to the Agent within fifteen (15) days from the time of the discovery of the breach. No waiver,
extinguishment, abandonment, withdrawal or cancellation of the right to terminate this Agreement by the Company
shall be construed for any previous failure to exercise its right under any provision of this Agreement.

Either of the parties hereto may likewise terminate his Agreement at any time without cause, by giving to the other
party fifteen (15) days notice in writing.2

Tongko additionally agreed (1) to comply with all regulations and requirements of Manulife, and (2) to maintain a
standard of knowledge and competency in the sale of Manulife’s products, satisfactory to Manulife and sufficient to
meet the volume of the new business, required by his Production Club membership.3

The second phase started in 1983 when Tongko was named Unit Manager in Manulife’s Sales Agency Organization. In
1990, he became a Branch Manager. Six years later (or in 1996), Tongko became a Regional Sales Manager.4

Tongko’s gross earnings consisted of commissions, persistency income, and management overrides. Since the beginning,
Tongko consistently declared himself self-employed in his income tax returns. Thus, under oath, he declared his gross
business income and deducted his business expenses to arrive at his taxable business income. Manulife withheld the
corresponding 10% tax on Tongko’s earnings.5

In 2001, Manulife instituted manpower development programs at the regional sales management level. Respondent
Renato Vergel de Dios wrote Tongko a letter dated November 6, 2001 on concerns that were brought up during the
October 18, 2001 Metro North Sales Managers Meeting. De Dios wrote:

The first step to transforming Manulife into a big league player has been very clear – to increase the number of agents to
at least 1,000 strong for a start. This may seem diametrically opposed to the way Manulife was run when you first joined
the organization. Since then, however, substantial changes have taken place in the organization, as these have been
influenced by developments both from within and without the company.


The issues around agent recruiting are central to the intended objectives hence the need for a Senior Managers’
meeting earlier last month when Kevin O’Connor, SVP-Agency, took to the floor to determine from our senior agency
leaders what more could be done to bolster manpower development. At earlier meetings, Kevin had presented
information where evidently, your Region was the lowest performer (on a per Manager basis) in terms of recruiting in
2000 and, as of today, continues to remain one of the laggards in this area.
While discussions, in general, were positive other than for certain comments from your end which were perceived to be
uncalled for, it became clear that a one-on-one meeting with you was necessary to ensure that you and management,
were on the same plane. As gleaned from some of your previous comments in prior meetings (both in group and one-
on-one), it was not clear that we were proceeding in the same direction.

Kevin held subsequent series of meetings with you as a result, one of which I joined briefly. In those subsequent
meetings you reiterated certain views, the validity of which we challenged and subsequently found as having no basis.

With such views coming from you, I was a bit concerned that the rest of the Metro North Managers may be a bit
confused as to the directions the company was taking. For this reason, I sought a meeting with everyone in your
management team, including you, to clear the air, so to speak.

This note is intended to confirm the items that were discussed at the said Metro North Region’s Sales Managers meeting
held at the 7/F Conference room last 18 October.


Issue # 2: "Some Managers are unhappy with their earnings and would want to revert to the position of agents."

This is an often repeated issue you have raised with me and with Kevin. For this reason, I placed the issue on the table
before the rest of your Region’s Sales Managers to verify its validity. As you must have noted, no Sales Manager came
forward on their own to confirm your statement and it took you to name Malou Samson as a source of the same, an
allegation that Malou herself denied at our meeting and in your very presence.

This only confirms, Greg, that those prior comments have no solid basis at all. I now believe what I had thought all along,
that these allegations were simply meant to muddle the issues surrounding the inability of your Region to meet its
agency development objectives!

Issue # 3: "Sales Managers are doing what the company asks them to do but, in the process, they earn less."


All the above notwithstanding, we had your own records checked and we found that you made a lot more money in the
Year 2000 versus 1999. In addition, you also volunteered the information to Kevin when you said that you probably will
make more money in the Year 2001 compared to Year 2000. Obviously, your above statement about making "less
money" did not refer to you but the way you argued this point had us almost believing that you were spouting the
gospel of truth when you were not. x x x


All of a sudden, Greg, I have become much more worried about your ability to lead this group towards the new direction
that we have been discussing these past few weeks, i.e., Manulife’s goal to become a major agency-led distribution
company in the Philippines. While as you claim, you have not stopped anyone from recruiting, I have never heard you
proactively push for greater agency recruiting. You have not been proactive all these years when it comes to agency


I cannot afford to see a major region fail to deliver on its developmental goals next year and so, we are making the
following changes in the interim:

1. You will hire at your expense a competent assistant who can unload you of much of the routine tasks which can be
easily delegated. This assistant should be so chosen as to complement your skills and help you in the areas where you
feel "may not be your cup of tea."

You have stated, if not implied, that your work as Regional Manager may be too taxing for you and for your health. The
above could solve this problem.


2. Effective immediately, Kevin and the rest of the Agency Operations will deal with the North Star Branch (NSB) in
autonomous fashion. x x x

I have decided to make this change so as to reduce your span of control and allow you to concentrate more fully on
overseeing the remaining groups under Metro North, your Central Unit and the rest of the Sales Managers in Metro
North. I will hold you solely responsible for meeting the objectives of these remaining groups.

The above changes can end at this point and they need not go any further. This, however, is entirely dependent upon
you. But you have to understand that meeting corporate objectives by everyone is primary and will not be
compromised. We are meeting tough challenges next year, and I would want everybody on board. Any resistance or
holding back by anyone will be dealt with accordingly.6

Subsequently, de Dios wrote Tongko another letter, dated December 18, 2001, terminating Tongko’s services:

It would appear, however, that despite the series of meetings and communications, both one-on-one meetings between
yourself and SVP Kevin O’Connor, some of them with me, as well as group meetings with your Sales Managers, all these
efforts have failed in helping you align your directions with Management’s avowed agency growth policy.


On account thereof, Management is exercising its prerogative under Section 14 of your Agents Contract as we are now
issuing this notice of termination of your Agency Agreement with us effective fifteen days from the date of this letter.7

Tongko responded by filing an illegal dismissal complaint with the National Labor Relations Commission (NLRC)
Arbitration Branch. He essentially alleged – despite the clear terms of the letter terminating his Agency Agreement –
that he was Manulife’s employee before he was illegally dismissed.8

Thus, the threshold issue is the existence of an employment relationship. A finding that none exists renders the question
of illegal dismissal moot; a finding that an employment relationship exists, on the other hand, necessarily leads to the
need to determine the validity of the termination of the relationship.

A. Tongko’s Case for Employment Relationship

Tongko asserted that as Unit Manager, he was paid an annual over-rider not exceeding ₱50,000.00, regardless of
production levels attained and exclusive of commissions and bonuses. He also claimed that as Regional Sales Manager,
he was given a travel and entertainment allowance of ₱36,000.00 per year in addition to his overriding commissions; he
was tasked with numerous administrative functions and supervisory authority over Manulife’s employees, aside from
merely selling policies and recruiting agents for Manulife; and he recommended and recruited insurance agents subject
to vetting and approval by Manulife. He further alleges that he was assigned a definite place in the Manulife offices
when he was not in the field – at the 3rd Floor, Manulife Center, 108 Tordesillas corner Gallardo Sts., Salcedo Village,
Makati City – for which he never paid any rental. Manulife provided the office equipment he used, including tables,
chairs, computers and printers (and even office stationery), and paid for the electricity, water and telephone bills. As
Regional Sales Manager, Tongko additionally asserts that he was required to follow at least three codes of conduct.9

B. Manulife’s Case – Agency Relationship with Tongko

Manulife argues that Tongko had no fixed wage or salary. Under the Agreement, Tongko was paid commissions of
varying amounts, computed based on the premium paid in full and actually received by Manulife on policies obtained
through an agent. As sales manager, Tongko was paid overriding sales commission derived from sales made by agents
under his unit/structure/branch/region. Manulife also points out that it deducted and withheld a 10% tax from all
commissions Tongko received; Tongko even declared himself to be self-employed and consistently paid taxes as such—
i.e., he availed of tax deductions such as ordinary and necessary trade, business and professional expenses to which a
business is entitled.

Manulife asserts that the labor tribunals have no jurisdiction over Tongko’s claim as he was not its employee as
characterized in the four-fold test and our ruling in Carungcong v. National Labor Relations Commission.10

The Conflicting Rulings of the Lower Tribunals

The labor arbiter decreed that no employer-employee relationship existed between the parties. However, the NLRC
reversed the labor arbiter’s decision on appeal; it found the existence of an employer-employee relationship and
concluded that Tongko had been illegally dismissed. In the petition for certiorari with the Court of Appeals (CA), the
appellate court found that the NLRC gravely abused its discretion in its ruling and reverted to the labor arbiter’s decision
that no employer-employee relationship existed between Tongko and Manulife.

Our Decision of November 7, 2008

In our Decision of November 7, 2008, we reversed the CA ruling and found that an employment relationship existed
between Tongko and Manulife. We concluded that Tongko is Manulife’s employee for the following reasons:

1. Our ruling in the first Insular11 case did not foreclose the possibility of an insurance agent becoming an employee of
an insurance company; if evidence exists showing that the company promulgated rules or regulations that effectively
controlled or restricted an insurance agent’s choice of methods or the methods themselves in selling insurance, an
employer-employee relationship would be present. The determination of the existence of an employer-employee
relationship is thus on a case-to-case basis depending on the evidence on record.
2. Manulife had the power of control over Tongko, sufficient to characterize him as an employee, as shown by the
following indicators:

2.1 Tongko undertook to comply with Manulife’s rules, regulations and other requirements, i.e., the different codes of
conduct such as the Agent Code of Conduct, the Manulife Financial Code of Conduct, and the Financial Code of Conduct

2.2 The various affidavits of Manulife’s insurance agents and managers, who occupied similar positions as Tongko,
showed that they performed administrative duties that established employment with Manulife;12 and

2.3 Tongko was tasked to recruit some agents in addition to his other administrative functions. De Dios’ letter harped on
the direction Manulife intended to take, viz., greater agency recruitment as the primary means to sell more policies;
Tongko’s alleged failure to follow this directive led to the termination of his employment with Manulife.

The Motion for Reconsideration

Manulife disagreed with our Decision and filed the present motion for reconsideration on the following GROUNDS:

1. The November 7[, 2008] Decision violates Manulife’s right to due process by: (a) confining the review only to the issue
of "control" and utterly disregarding all the other issues that had been joined in this case; (b) mischaracterizing the
divergence of conclusions between the CA and the NLRC decisions as confined only to that on "control"; (c) grossly
failing to consider the findings and conclusions of the CA on the majority of the material evidence, especially [Tongko’s]
declaration in his income tax returns that he was a "business person" or "self-employed"; and (d) allowing [Tongko] to
repudiate his sworn statement in a public document.

2. The November 7[, 2008] Decision contravenes settled rules in contract law and agency, distorts not only the legal
relationships of agencies to sell but also distributorship and franchising, and ignores the constitutional and policy
context of contract law vis-à-vis labor law.

3. The November 7[, 2008] Decision ignores the findings of the CA on the three elements of the four-fold test other than
the "control" test, reverses well-settled doctrines of law on employer-employee relationships, and grossly misapplies the
"control test," by selecting, without basis, a few items of evidence to the exclusion of more material evidence to support
its conclusion that there is "control."

4. The November 7[, 2008] Decision is judicial legislation, beyond the scope authorized by Articles 8 and 9 of the Civil
Code, beyond the powers granted to this Court under Article VIII, Section 1 of the Constitution and contravenes through
judicial legislation, the constitutional prohibition against impairment of contracts under Article III, Section 10 of the

5. For all the above reasons, the November 7[, 2008] Decision made unsustainable and reversible errors, which should
be corrected, in concluding that Respondent Manulife and Petitioner had an employer-employee relationship, that
Respondent Manulife illegally dismissed Petitioner, and for consequently ordering Respondent Manulife to pay
Petitioner backwages, separation pay, nominal damages and attorney’s fees.13


A. The Insurance and the Civil Codes;

the Parties’ Intent and Established

Industry Practices

We cannot consider the present case purely from a labor law perspective, oblivious that the factual antecedents were
set in the insurance industry so that the Insurance Code primarily governs. Chapter IV, Title 1 of this Code is wholly
devoted to "Insurance Agents and Brokers" and specifically defines the agents and brokers relationship with the
insurance company and how they are governed by the Code and regulated by the Insurance Commission.

The Insurance Code, of course, does not wholly regulate the "agency" that it speaks of, as agency is a civil law matter
governed by the Civil Code. Thus, at the very least, three sets of laws – namely, the Insurance Code, the Labor Code and
the Civil Code – have to be considered in looking at the present case. Not to be forgotten, too, is the Agreement (partly
reproduced on page 2 of this Dissent and which no one disputes) that the parties adopted to govern their relationship
for purposes of selling the insurance the company offers. To forget these other laws is to take a myopic view of the
present case and to add to the uncertainties that now exist in considering the legal relationship between the insurance
company and its "agents."

The main issue of whether an agency or an employment relationship exists depends on the incidents of the relationship.
The Labor Code concept of "control" has to be compared and distinguished with the "control" that must necessarily exist
in a principal-agent relationship. The principal cannot but also have his or her say in directing the course of the principal-
agent relationship, especially in cases where the company-representative relationship in the insurance industry is an

a. The laws on insurance and agency

The business of insurance is a highly regulated commercial activity in the country, in terms particularly of who can be in
the insurance business, who can act for and in behalf of an insurer, and how these parties shall conduct themselves in
the insurance business. Section 186 of the Insurance Code provides that "No person, partnership, or association of
persons shall transact any insurance business in the Philippines except as agent of a person or corporation authorized to
do the business of insurance in the Philippines." Sections 299 and 300 of the Insurance Code on Insurance Agents and
Brokers, among other provisions, provide:

Section 299. No insurance company doing business in the Philippines, nor any agent thereof, shall pay any commission
or other compensation to any person for services in obtaining insurance, unless such person shall have first procured
from the Commissioner a license to act as an insurance agent of such company or as an insurance broker as hereinafter

No person shall act as an insurance agent or as an insurance broker in the solicitation or procurement of applications for
insurance, or receive for services in obtaining insurance, any commission or other compensation from any insurance
company doing business in the Philippines or any agent thereof, without first procuring a license so to act from the
Commissioner x x x The Commissioner shall satisfy himself as to the competence and trustworthiness of the applicant
and shall have the right to refuse to issue or renew and to suspend or revoke any such license in his

Section 300. Any person who for compensation solicits or obtains insurance on behalf of any insurance company or
transmits for a person other than himself an application for a policy or contract of insurance to or from such company or
offers or assumes to act in the negotiating of such insurance shall be an insurance agent within the intent of this section
and shall thereby become liable to all the duties, requirements, liabilities and penalties to which an insurance agent is

The application for an insurance agent’s license requires a written examination, and the applicant must be of good moral
character and must not have been convicted of a crime involving moral turpitude.14 The insurance agent who collects
premiums from an insured person for remittance to the insurance company does so in a fiduciary capacity, and an
insurance company which delivers an insurance policy or contract to an authorized agent is deemed to have authorized
the agent to receive payment on the company’s behalf.15 Section 361 further prohibits the offer, negotiation, or
collection of any amount other than that specified in the policy and this covers any rebate from the premium or any
special favor or advantage in the dividends or benefit accruing from the policy.

Thus, under the Insurance Code, the agent must, as a matter of qualification, be licensed and must also act within the
parameters of the authority granted under the license and under the contract with the principal. Other than the need
for a license, the agent is limited in the way he offers and negotiates for the sale of the company’s insurance products, in
his collection activities, and in the delivery of the insurance contract or policy. Rules regarding the desired results (e.g.,
the required volume to continue to qualify as a company agent, rules to check on the parameters on the authority given
to the agent, and rules to ensure that industry, legal and ethical rules are followed) are built-in elements of control
specific to an insurance agency and should not and cannot be read as elements of control that attend an employment
relationship governed by the Labor Code.

On the other hand, the Civil Code defines an agent as a "person [who] binds himself to render some service or to do
something in representation or on behalf of another, with the consent or authority of the latter."16 While this is a very
broad definition that on its face may even encompass an employment relationship, the distinctions between agency and
employment are sufficiently established by law and jurisprudence.

Generally, the determinative element is the control exercised over the one rendering service. The employer controls the
employee both in the results and in the means and manner of achieving this result. The principal in an agency
relationship, on the other hand, also has the prerogative to exercise control over the agent in undertaking the assigned
task based on the parameters outlined in the pertinent laws.

Under the general law on agency as applied to insurance, an agency must be express in light of the need for a license
and for the designation by the insurance company. In the present case, the Agreement fully serves as grant of authority
to Tongko as Manulife’s insurance agent.17 This agreement is supplemented by the company’s agency practices and
usages, duly accepted by the agent in carrying out the agency.18 By authority of the Insurance Code, an insurance
agency is for compensation,19 a matter the Civil Code Rules on Agency presumes in the absence of proof to the
contrary.20 Other than the compensation, the principal is bound to advance to, or to reimburse, the agent the agreed
sums necessary for the execution of the agency.21 By implication at least under Article 1994 of the Civil Code, the
principal can appoint two or more agents to carry out the same assigned tasks,22 based necessarily on the specific
instructions and directives given to them.
With particular relevance to the present case is the provision that "In the execution of the agency, the agent shall act in
accordance with the instructions of the principal."23 This provision is pertinent for purposes of the necessary control
that the principal exercises over the agent in undertaking the assigned task, and is an area where the instructions can
intrude into the labor law concept of control so that minute consideration of the facts is necessary. A related article is
Article 1891 of the Civil Code which binds the agent to render an account of his transactions to the principal.

B. The Cited Case

The Decision of November 7, 2008 refers to the first Insular and Grepalife cases to establish that the company rules and
regulations that an agent has to comply with are indicative of an employer-employee relationship.24 The Dissenting
Opinions of Justice Presbitero Velasco, Jr. and Justice Conchita Carpio Morales also cite Insular Life Assurance Co. v.
National Labor Relations Commission (second Insular case)25 to support the view that Tongko is Manulife’s employee.
On the other hand, Manulife cites the Carungcong case and AFP Mutual Benefit Association, Inc. v. National Labor
Relations Commission (AFPMBAI case)26 to support its allegation that Tongko was not its employee.

A caveat has been given above with respect to the use of the rulings in the cited cases because none of them is on all
fours with the present case; the uniqueness of the factual situation of the present case prevents it from being directly
and readily cast in the mold of the cited cases. These cited cases are themselves different from one another; this
difference underscores the need to read and quote them in the context of their own factual situations.

The present case at first glance appears aligned with the facts in the Carungcong, the Grepalife, and the second Insular
Life cases. A critical difference, however, exists as these cited cases dealt with the proper legal characterization of a
subsequent management contract that superseded the original agency contract between the insurance company and its
agent. Carungcong dealt with a subsequent Agreement making Carungcong a New Business Manager that clearly
superseded the Agreement designating Carungcong as an agent empowered to solicit applications for insurance. The
Grepalife case, on the other hand, dealt with the proper legal characterization of the appointment of the Ruiz brothers
to positions higher than their original position as insurance agents. Thus, after analyzing the duties and functions of the
Ruiz brothers, as these were enumerated in their contracts, we concluded that the company practically dictated the
manner by which the Ruiz brothers were to carry out their jobs. Finally, the second Insular Life case dealt with the
implications of de los Reyes’ appointment as acting unit manager which, like the subsequent contracts in the
Carungcong and the Grepalife cases, was clearly defined under a subsequent contract. In all these cited cases, a
determination of the presence of the Labor Code element of control was made on the basis of the stipulations of the
subsequent contracts.

In stark contrast with the Carungcong, the Grepalife, and the second Insular Life cases, the only contract or document
extant and submitted as evidence in the present case is the Agreement – a pure agency agreement in the Civil Code
context similar to the original contract in the first Insular Life case and the contract in the AFPMBAI case. And while
Tongko was later on designated unit manager in 1983, Branch Manager in 1990, and Regional Sales Manager in 1996, no
formal contract regarding these undertakings appears in the records of the case. Any such contract or agreement, had
there been any, could have at the very least provided the bases for properly ascertaining the juridical relationship
established between the parties.

These critical differences, particularly between the present case and the Grepalife and the second Insular Life cases,
should therefore immediately drive us to be more prudent and cautious in applying the rulings in these cases.

C. Analysis of the Evidence

c.1. The Agreement

The primary evidence in the present case is the July 1, 1977 Agreement that governed and defined the parties’ relations
until the Agreement’s termination in 2001. This Agreement stood for more than two decades and, based on the records
of the case, was never modified or novated. It assumes primacy because it directly dealt with the nature of the parties’
relationship up to the very end; moreover, both parties never disputed its authenticity or the accuracy of its terms.

By the Agreement’s express terms, Tongko served as an "insurance agent" for Manulife, not as an employee. To be sure,
the Agreement’s legal characterization of the nature of the relationship cannot be conclusive and binding on the courts;
as the dissent clearly stated, the characterization of the juridical relationship the Agreement embodied is a matter of law
that is for the courts to determine. At the same time, though, the characterization the parties gave to their relationship
in the Agreement cannot simply be brushed aside because it embodies their intent at the time they entered the
Agreement, and they were governed by this understanding throughout their relationship. At the very least, the provision
on the absence of employer-employee relationship between the parties can be an aid in considering the Agreement and
its implementation, and in appreciating the other evidence on record.

The parties’ legal characterization of their intent, although not conclusive, is critical in this case because this intent is not
illegal or outside the contemplation of law, particularly of the Insurance and the Civil Codes. From this perspective, the
provisions of the Insurance Code cannot be disregarded as this Code (as heretofore already noted) expressly envisions a
principal-agent relationship between the insurance company and the insurance agent in the sale of insurance to the
public.1awph!1 For this reason, we can take judicial notice that as a matter of Insurance Code-based business practice,
an agency relationship prevails in the insurance industry for the purpose of selling insurance. The Agreement, by its
express terms, is in accordance with the Insurance Code model when it provided for a principal-agent relationship, and
thus cannot lightly be set aside nor simply be considered as an agreement that does not reflect the parties’ true intent.
This intent, incidentally, is reinforced by the system of compensation the Agreement provides, which likewise is in
accordance with the production-based sales commissions the Insurance Code provides.

Significantly, evidence shows that Tongko’s role as an insurance agent never changed during his relationship with
Manulife. If changes occurred at all, the changes did not appear to be in the nature of their core relationship. Tongko
essentially remained an agent, but moved up in this role through Manulife’s recognition that he could use other agents
approved by Manulife, but operating under his guidance and in whose commissions he had a share. For want of a better
term, Tongko perhaps could be labeled as a "lead agent" who guided under his wing other Manulife agents similarly
tasked with the selling of Manulife insurance.

Like Tongko, the evidence suggests that these other agents operated under their own agency agreements. Thus, if
Tongko’s compensation scheme changed at all during his relationship with Manulife, the change was solely for purposes
of crediting him with his share in the commissions the agents under his wing generated. As an agent who was recruiting
and guiding other insurance agents, Tongko likewise moved up in terms of the reimbursement of expenses he incurred
in the course of his lead agency, a prerogative he enjoyed pursuant to Article 1912 of the Civil Code. Thus, Tongko
received greater reimbursements for his expenses and was even allowed to use Manulife facilities in his interactions
with the agents, all of whom were, in the strict sense, Manulife agents approved and certified as such by Manulife with
the Insurance Commission.

That Tongko assumed a leadership role but nevertheless wholly remained an agent is the inevitable conclusion that
results from the reading of the Agreement (the only agreement on record in this case) and his continuing role
thereunder as sales agent, from the perspective of the Insurance and the Civil Codes and in light of what Tongko himself
attested to as his role as Regional Sales Manager. To be sure, this interpretation could have been contradicted if other
agreements had been submitted as evidence of the relationship between Manulife and Tongko on the latter’s expanded
undertakings. In the absence of any such evidence, however, this reading – based on the available evidence and the
applicable insurance and civil law provisions – must stand, subject only to objective and evidentiary Labor Code tests on
the existence of an employer-employee relationship.

In applying such Labor Code tests, however, the enforcement of the Agreement during the course of the parties’
relationship should be noted. From 1977 until the termination of the Agreement, Tongko’s occupation was to sell
Manulife’s insurance policies and products. Both parties acquiesced with the terms and conditions of the Agreement.
Tongko, for his part, accepted all the benefits flowing from the Agreement, particularly the generous commissions.

Evidence indicates that Tongko consistently clung to the view that he was an independent agent selling Manulife
insurance products since he invariably declared himself a business or self-employed person in his income tax returns.
This consistency with, and action made pursuant to the Agreement were pieces of evidence that were never mentioned
nor considered in our Decision of November 7, 2008. Had they been considered, they could, at the very least, serve as
Tongko’s admissions against his interest. Strictly speaking, Tongko’s tax returns cannot but be legally significant because
he certified under oath the amount he earned as gross business income, claimed business deductions, leading to his net
taxable income. This should be evidence of the first order that cannot be brushed aside by a mere denial. Even on a
layman’s view that is devoid of legal considerations, the extent of his annual income alone renders his claimed
employment status doubtful.27

Hand in hand with the concept of admission against interest in considering the tax returns, the concept of estoppel – a
legal and equitable concept28 – necessarily must come into play. Tongko’s previous admissions in several years of tax
returns as an independent agent, as against his belated claim that he was all along an employee, are too diametrically
opposed to be simply dismissed or ignored. Interestingly, Justice Velasco’s dissenting opinion states that Tongko was
forced to declare himself a business or self-employed person by Manulife’s persistent refusal to recognize him as its
employee.29 Regrettably, the dissent has shown no basis for this conclusion, an understandable omission since no
evidence in fact exists on this point in the records of the case. In fact, what the evidence shows is Tongko’s full
conformity with, and action as, an independent agent until his relationship with Manulife took a bad turn.

Another interesting point the dissent raised with respect to the Agreement is its conclusion that the Agreement negated
any employment relationship between Tongko and Manulife so that the commissions he earned as a sales agent should
not be considered in the determination of the backwages and separation pay that should be given to him. This part of
the dissent is correct although it went on to twist this conclusion by asserting that Tongko had dual roles in his
relationship with Manulife; he was an agent, not an employee, in so far as he sold insurance for Manulife, but was an
employee in his capacity as a manager. Thus, the dissent concluded that Tongko’s backwages should only be with
respect to his role as Manulife’s manager.

The conclusion with respect to Tongko’s employment as a manager is, of course, unacceptable for the legal, factual and
practical reasons discussed in this Resolution. In brief, the factual reason is grounded on the lack of evidentiary support
of the conclusion that Manulife exercised control over Tongko in the sense understood in the Labor Code. The legal
reason, partly based on the lack of factual basis, is the erroneous legal conclusion that Manulife controlled Tongko and
was thus its employee. The practical reason, on the other hand, is the havoc that the dissent’s unwarranted conclusion
would cause the insurance industry that, by the law’s own design, operated along the lines of principal-agent
relationship in the sale of insurance.

c.2. Other Evidence of Alleged Control

A glaring evidentiary gap for Tongko in this case is the lack of evidence on record showing that Manulife ever exercised
means-and-manner control, even to a limited extent, over Tongko during his ascent in Manulife’s sales ladder. In 1983,
Tongko was appointed unit manager. Inexplicably, Tongko never bothered to present any evidence at all on what this
designation meant. This also holds true for Tongko’s appointment as branch manager in 1990, and as Regional Sales
Manager in 1996. The best evidence of control – the agreement or directive relating to Tongko’s duties and
responsibilities – was never introduced as part of the records of the case. The reality is, prior to de Dios’ letter, Manulife
had practically left Tongko alone not only in doing the business of selling insurance, but also in guiding the agents under
his wing. As discussed below, the alleged directives covered by de Dios’ letter, heretofore quoted in full, were policy
directions and targeted results that the company wanted Tongko and the other sales groups to realign with in their own
selling activities. This is the reality that the parties’ presented evidence consistently tells us.

What, to Tongko, serve as evidence of labor law control are the codes of conduct that Manulife imposes on its agents in
the sale of insurance. The mere presentation of codes or of rules and regulations, however, is not per se indicative of
labor law control as the law and jurisprudence teach us.

As already recited above, the Insurance Code imposes obligations on both the insurance company and its agents in the
performance of their respective obligations under the Code, particularly on licenses and their renewals, on the
representations to be made to potential customers, the collection of premiums, on the delivery of insurance policies, on
the matter of compensation, and on measures to ensure ethical business practice in the industry.

The general law on agency, on the other hand, expressly allows the principal an element of control over the agent in a
manner consistent with an agency relationship. In this sense, these control measures cannot be read as indicative of
labor law control. Foremost among these are the directives that the principal may impose on the agent to achieve the
assigned tasks, to the extent that they do not involve the means and manner of undertaking these tasks. The law
likewise obligates the agent to render an account; in this sense, the principal may impose on the agent specific
instructions on how an account shall be made, particularly on the matter of expenses and reimbursements. To these
extents, control can be imposed through rules and regulations without intruding into the labor law concept of control
for purposes of employment.

From jurisprudence, an important lesson that the first Insular Life case teaches us is that a commitment to abide by the
rules and regulations of an insurance company does not ipso facto make the insurance agent an employee. Neither do
guidelines somehow restrictive of the insurance agent’s conduct necessarily indicate "control" as this term is defined in
jurisprudence. Guidelines indicative of labor law "control," as the first Insular Life case tells us, should not merely relate
to the mutually desirable result intended by the contractual relationship; they must have the nature of dictating the
means or methods to be employed in attaining the result, or of fixing the methodology and of binding or restricting the
party hired to the use of these means. In fact, results-wise, the principal can impose production quotas and can
determine how many agents, with specific territories, ought to be employed to achieve the company’s objectives. These
are management policy decisions that the labor law element of control cannot reach. Our ruling in these respects in the
first Insular Life case was practically reiterated in Carungcong. Thus, as will be shown more fully below, Manulife’s codes
of conduct,30 all of which do not intrude into the insurance agents’ means and manner of conducting their sales and
only control them as to the desired results and Insurance Code norms, cannot be used as basis for a finding that the
labor law concept of control existed between Manulife and Tongko.

The dissent considers the imposition of administrative and managerial functions on Tongko as indicative of labor law
control; thus, Tongko as manager, but not as insurance agent, became Manulife’s employee. It drew this conclusion
from what the other Manulife managers disclosed in their affidavits (i.e., their enumerated administrative and
managerial functions) and after comparing these statements with the managers in Grepalife. The dissent compared the
control exercised by Manulife over its managers in the present case with the control the managers in the Grepalife case
exercised over their employees by presenting the following matrix:31

Duties of Manulife’s Manager Duties of Grepalife’s Managers/Supervisors

- to render or recommend prospective agents to be licensed, trained and contracted to sell Manulife products and who
will be part of my Unit

- train understudies for the position of district manager

- to coordinate activities of the agents under [the managers’] Unit in [the agents’] daily, weekly and monthly selling
activities, making sure that their respective sales targets are met;
- to conduct periodic training sessions for [the] agents to further enhance their sales skill; and

- to assist [the] agents with their sales activities by way of joint fieldwork, consultations and one-on-one evaluation and
analysis of particular accounts

- properly account, record and document the company’s funds, spot-check and audit the work of the zone supervisors, x
x x follow up the submission of weekly remittance reports of the debit agents and zone supervisors

- direct and supervise the sales activities of the debit agents under him, x x x undertake and discharge the functions of
absentee debit agents, spot-check the record of debit agents, and insure proper documentation of sales and collections
of debit agents.

Aside from these affidavits however, no other evidence exists regarding the effects of Tongko’s additional roles in
Manulife’s sales operations on the contractual relationship between them.

To the dissent, Tongko’s administrative functions as recruiter, trainer, or supervisor of other sales agents constituted a
substantive alteration of Manulife’s authority over Tongko and the performance of his end of the relationship with
Manulife. We could not deny though that Tongko remained, first and foremost, an insurance agent, and that his
additional role as Branch Manager did not lessen his main and dominant role as insurance agent; this role continued to
dominate the relations between Tongko and Manulife even after Tongko assumed his leadership role among agents.
This conclusion cannot be denied because it proceeds from the undisputed fact that Tongko and Manulife never altered
their July 1, 1977 Agreement, a distinction the present case has with the contractual changes made in the second Insular
Life case. Tongko’s results-based commissions, too, attest to the primacy he gave to his role as insurance sales agent.

The dissent apparently did not also properly analyze and appreciate the great qualitative difference that exists between:

the Manulife managers’ role is to coordinate activities of the agents under the managers’ Unit in the agents’ daily,
weekly, and monthly selling activities, making sure that their respective sales targets are met.

the District Manager’s duty in Grepalife is to properly account, record, and document the company's funds, spot-check
and audit the work of the zone supervisors, conserve the company's business in the district through "reinstatements,"
follow up the submission of weekly remittance reports of the debit agents and zone supervisors, preserve company
property in good condition, train understudies for the position of district managers, and maintain his quota of sales (the
failure of which is a ground for termination).

the Zone Supervisor’s (also in Grepalife) has the duty to direct and supervise the sales activities of the debit agents
under him, conserve company property through "reinstatements," undertake and discharge the functions of absentee
debit agents, spot-check the records of debit agents, and insure proper documentation of sales and collections by the
debit agents.

These job contents are worlds apart in terms of "control." In Grepalife, the details of how to do the job are specified and
pre-determined; in the present case, the operative words are the "sales target," the methodology being left undefined
except to the extent of being "coordinative." To be sure, a "coordinative" standard for a manager cannot be indicative of
control; the standard only essentially describes what a Branch Manager is – the person in the lead who orchestrates
activities within the group. To "coordinate," and thereby to lead and to orchestrate, is not so much a matter of control
by Manulife; it is simply a statement of a branch manager’s role in relation with his agents from the point of view of
Manulife whose business Tongko’s sales group carries.

A disturbing note, with respect to the presented affidavits and Tongko’s alleged administrative functions, is the selective
citation of the portions supportive of an employment relationship and the consequent omission of portions leading to
the contrary conclusion. For example, the following portions of the affidavit of Regional Sales Manager John Chua, with
counterparts in the other affidavits, were not brought out in the Decision of November 7, 2008, while the other portions
suggesting labor law control were highlighted. Specifically, the following portions of the affidavits were not brought

1.a. I have no fixed wages or salary since my services are compensated by way of commissions based on the computed
premiums paid in full on the policies obtained thereat;

1.b. I have no fixed working hours and employ my own method in soliticing insurance at a time and place I see fit;

1.c. I have my own assistant and messenger who handle my daily work load;

1.d. I use my own facilities, tools, materials and supplies in carrying out my business of selling insurance;


6. I have my own staff that handles the day to day operations of my office;
7. My staff are my own employees and received salaries from me;


9. My commission and incentives are all reported to the Bureau of Internal Revenue (BIR) as income by a self-employed
individual or professional with a ten (10) percent creditable withholding tax. I also remit monthly for professionals.

These statements, read with the above comparative analysis of the Manulife and the Grepalife cases, would have readily
yielded the conclusion that no employer-employee relationship existed between Manulife and Tongko.

Even de Dios’ letter is not determinative of control as it indicates the least amount of intrusion into Tongko’s exercise of
his role as manager in guiding the sales agents. Strictly viewed, de Dios’ directives are merely operational guidelines on
how Tongko could align his operations with Manulife’s re-directed goal of being a "big league player." The method is to
expand coverage through the use of more agents. This requirement for the recruitment of more agents is not a means-
and-method control as it relates, more than anything else, and is directly relevant, to Manulife’s objective of expanded
business operations through the use of a bigger sales force whose members are all on a principal-agent relationship. An
important point to note here is that Tongko was not supervising regular full-time employees of Manulife engaged in the
running of the insurance business; Tongko was effectively guiding his corps of sales agents, who are bound to Manulife
through the same Agreement that he had with Manulife, all the while sharing in these agents’ commissions through his
overrides. This is the lead agent concept mentioned above for want of a more appropriate term, since the title of Branch
Manager used by the parties is really a misnomer given that what is involved is not a specific regular branch of the
company but a corps of non-employed agents, defined in terms of covered territory, through which the company sells
insurance. Still another point to consider is that Tongko was not even setting policies in the way a regular company
manager does; company aims and objectives were simply relayed to him with suggestions on how these objectives can
be reached through the expansion of a non-employee sales force.

Interestingly, a large part of de Dios’ letter focused on income, which Manulife demonstrated, in Tongko’s case, to be
unaffected by the new goal and direction the company had set. Income in insurance agency, of course, is dependent on
results, not on the means and manner of selling – a matter for Tongko and his agents to determine and an area into
which Manulife had not waded. Undeniably, de Dios’ letter contained a directive to secure a competent assistant at
Tongko’s own expense. While couched in terms of a directive, it cannot strictly be understood as an intrusion into
Tongko’s method of operating and supervising the group of agents within his delineated territory. More than anything
else, the "directive" was a signal to Tongko that his results were unsatisfactory, and was a suggestion on how Tongko’s
perceived weakness in delivering results could be remedied. It was a solution, with an eye on results, for a consistently
underperforming group; its obvious intent was to save Tongko from the result that he then failed to grasp – that he
could lose even his own status as an agent, as he in fact eventually did.

The present case must be distinguished from the second Insular Life case that showed the hallmarks of an employer-
employee relationship in the management system established. These were: exclusivity of service, control of assignments
and removal of agents under the private respondent’s unit, and furnishing of company facilities and materials as well as
capital described as Unit Development Fund. All these are obviously absent in the present case. If there is a commonality
in these cases, it is in the collection of premiums which is a basic authority that can be delegated to agents under the
Insurance Code.

As previously discussed, what simply happened in Tongko’s case was the grant of an expanded sales agency role that
recognized him as leader amongst agents in an area that Manulife defined. Whether this consequently resulted in the
establishment of an employment relationship can be answered by concrete evidence that corresponds to the following

as lead agent, what were Tongko’s specific functions and the terms of his additional engagement;

was he paid additional compensation as a so-called Area Sales Manager, apart from the commissions he received from
the insurance sales he generated;

what can be Manulife’s basis to terminate his status as lead agent;

can Manulife terminate his role as lead agent separately from his agency contract; and

to what extent does Manulife control the means and methods of Tongko’s role as lead agent?

The answers to these questions may, to some extent, be deduced from the evidence at hand, as partly discussed above.
But strictly speaking, the questions cannot definitively and concretely be answered through the evidence on record. The
concrete evidence required to settle these questions is simply not there, since only the Agreement and the anecdotal
affidavits have been marked and submitted as evidence.

Given this anemic state of the evidence, particularly on the requisite confluence of the factors determinative of the
existence of employer-employee relationship, the Court cannot conclusively find that the relationship exists in the
present case, even if such relationship only refers to Tongko’s additional functions. While a rough deduction can be
made, the answer will not be fully supported by the substantial evidence needed.

Under this legal situation, the only conclusion that can be made is that the absence of evidence showing Manulife’s
control over Tongko’s contractual duties points to the absence of any employer-employee relationship between Tongko
and Manulife. In the context of the established evidence, Tongko remained an agent all along; although his subsequent
duties made him a lead agent with leadership role, he was nevertheless only an agent whose basic contract yields no
evidence of means-and-manner control.

This conclusion renders unnecessary any further discussion of the question of whether an agent may simultaneously
assume conflicting dual personalities. But to set the record straight, the concept of a single person having the dual role
of agent and employee while doing the same task is a novel one in our jurisprudence, which must be viewed with
caution especially when it is devoid of any jurisprudential support or precedent. The quoted portions in Justice Carpio-
Morales’ dissent,33 borrowed from both the Grepalife and the second Insular Life cases, to support the duality approach
of the Decision of November 7, 2008, are regrettably far removed from their context – i.e., the cases’ factual situations,
the issues they decided and the totality of the rulings in these cases – and cannot yield the conclusions that the
dissenting opinions drew.

The Grepalife case dealt with the sole issue of whether the Ruiz brothers’ appointment as zone supervisor and district
manager made them employees of Grepalife. Indeed, because of the presence of the element of control in their contract
of engagements, they were considered Grepalife’s employees. This did not mean, however, that they were
simultaneously considered agents as well as employees of Grepalife; the Court’s ruling never implied that this situation
existed insofar as the Ruiz brothers were concerned. The Court’s statement – the Insurance Code may govern the
licensing requirements and other particular duties of insurance agents, but it does not bar the application of the Labor
Code with regard to labor standards and labor relations – simply means that when an insurance company has exercised
control over its agents so as to make them their employees, the relationship between the parties, which was otherwise
one for agency governed by the Civil Code and the Insurance Code, will now be governed by the Labor Code. The reason
for this is simple – the contract of agency has been transformed into an employer-employee relationship.

The second Insular Life case, on the other hand, involved the issue of whether the labor bodies have jurisdiction over an
illegal termination dispute involving parties who had two contracts – first, an original contract (agency contract), which
was undoubtedly one for agency, and another subsequent contract that in turn designated the agent acting unit
manager (a management contract). Both the Insular Life and the labor arbiter were one in the position that both were
agency contracts. The Court disagreed with this conclusion and held that insofar as the management contract is
concerned, the labor arbiter has jurisdiction. It is in this light that we remanded the case to the labor arbiter for further
proceedings. We never said in this case though that the insurance agent had effectively assumed dual personalities for
the simple reason that the agency contract has been effectively superseded by the management contract. The
management contract provided that if the appointment was terminated for any reason other than for cause, the acting
unit manager would be reverted to agent status and assigned to any unit.

The dissent pointed out, as an argument to support its employment relationship conclusion, that any doubt in the
existence of an employer-employee relationship should be resolved in favor of the existence of the relationship.34 This
observation, apparently drawn from Article 4 of the Labor Code, is misplaced, as Article 4 applies only when a doubt
exists in the "implementation and application" of the Labor Code and its implementing rules; it does not apply where no
doubt exists as in a situation where the claimant clearly failed to substantiate his claim of employment relationship by
the quantum of evidence the Labor Code requires.

On the dissent’s last point regarding the lack of jurisprudential value of our November 7, 2008 Decision, suffice it to
state that, as discussed above, the Decision was not supported by the evidence adduced and was not in accordance with
controlling jurisprudence. It should, therefore, be reconsidered and abandoned, but not in the manner the dissent
suggests as the dissenting opinions are as factually and as legally erroneous as the Decision under reconsideration.

In light of these conclusions, the sufficiency of Tongko’s failure to comply with the guidelines of de Dios’ letter, as a
ground for termination of Tongko’s agency, is a matter that the labor tribunals cannot rule upon in the absence of an
employer-employee relationship. Jurisdiction over the matter belongs to the courts applying the laws of insurance,
agency and contracts.

WHEREFORE, considering the foregoing discussion, we REVERSE our Decision of November 7, 2008, GRANT Manulife’s
motion for reconsideration and, accordingly, DISMISS Tongko’s petition. No costs.

GREGORIO V. TONGKO,Petitioner, - versus -
G.R. No. 167622
January 25, 2011



We resolve petitioner Gregorio V. Tongkos bid, through his Motion for Reconsideration,[1] to set aside our June 29, 2010
Resolution that reversed our Decision of November 7, 2008.[2] With the reversal, the assailed June 29, 2010 Resolution
effectively affirmed the Court of Appeals ruling[3] in CA-G.R. SP No. 88253 that the petitioner was an insurance agent,
not the employee, of the respondent The Manufacturers Life Insurance Co. (Phils.), Inc. (Manulife).

In his Motion for Reconsideration, petitioner reiterates the arguments he had belabored in his petition and various other
submissions. He argues that for 19 years, he performed administrative functions and exercised supervisory authority
over employees and agents of Manulife, in addition to his insurance agent functions.[4] In these 19 years, he was
designated as a Unit Manager, a Branch Manager and a Regional Sales Manager, and now posits that he was not only an
insurance agent for Manulife but was its employee as well.

We find no basis or any error to merit the reconsideration of our June 29, 2010 Resolution.

A. Labor Law Control = Employment Relationship

Control over the performance of the task of one providing service both with respect to the means and manner, and the
results of the service is the primary element in determining whether an employment relationship exists. We resolve the
petitioners Motion against his favor since he failed to show that the control Manulife exercised over him was the control
required to exist in an employer-employee relationship; Manulifes control fell short of this norm and carried only the
characteristic of the relationship between an insurance company and its agents, as defined by the Insurance Code and
by the law of agency under the Civil Code.

The petitioner asserts in his Motion that Manulifes labor law control over him was demonstrated (1) when it set the
objectives and sales targets regarding production, recruitment and training programs; and (2) when it prescribed the
Code of Conduct for Agents and the Manulife Financial Code of Conduct to govern his activities.[5] We find no merit in
these contentions.

In our June 29, 2010 Resolution, we noted that there are built-in elements of control specific to an insurance agency,
which do not amount to the elements of control that characterize an employment relationship governed by the Labor
Code. The Insurance Code provides definite parameters in the way an agent negotiates for the sale of the companys
insurance products, his collection activities and his delivery of the insurance contract or policy.[6] In addition, the Civil
Code defines an agent as a person who binds himself to do something in behalf of another, with the consent or
authority of the latter.[7] Article 1887 of the Civil Code also provides that in the execution of the agency, the agent shall
act in accordance with the instructions of the principal.

All these, read without any clear understanding of fine legal distinctions, appear to speak of control by the insurance
company over its agents. They are, however, controls aimed only at specific results in undertaking an insurance agency,
and are, in fact, parameters set by law in defining an insurance agency and the attendant duties and responsibilities an
insurance agent must observe and undertake. They do not reach the level of control into the means and manner of
doing an assigned task that invariably characterizes an employment relationship as defined by labor law. From this
perspective, the petitioners contentions cannot prevail.

To reiterate, guidelines indicative of labor law control do not merely relate to the mutually desirable result intended by
the contractual relationship; they must have the nature of dictating the means and methods to be employed in attaining
the result.[8] Tested by this norm, Manulifes instructions regarding the objectives and sales targets, in connection with
the training and engagement of other agents, are among the directives that the principal may impose on the agent to
achieve the assigned tasks. They are targeted results that Manulife wishes to attain through its agents. Manulifes codes
of conduct, likewise, do not necessarily intrude into the insurance agents means and manner of conducting their sales.
Codes of conduct are norms or standards of behavior rather than employer directives into how specific tasks are to be
done. These codes, as well as insurance industry rules and regulations, are not per se indicative of labor law control
under our jurisprudence.[9]

The duties[10] that the petitioner enumerated in his Motion are not supported by evidence and, therefore, deserve
scant consideration. Even assuming their existence, however, they mostly pertain to the duties of an insurance agent
such as remitting insurance fees to Manulife, delivering policies to the insured, and after-sale services. For agents
leading other agents, these include the task of overseeing other insurance agents, the recruitment of other insurance
agents engaged by Manulife as principal, and ensuring that these other agents comply with the paperwork necessary in
selling insurance. That Manulife exercises the power to assign and remove agents under the petitioners supervision is in
keeping with its role as a principal in an agency relationship; they are Manulife agents in the same manner that the
petitioner had all along been a Manulife agent.

The petitioner also questions Manulifes act of investing him with different titles and positions in the course of their
relationship, given the respondents position that he simply functioned as an insurance agent.[11] He also considers it an
unjust and inequitable situation that he would be unrewarded for the years he spent as a unit manager, a branch
manager, and a regional sales manager.[12]

Based on the evidence on record, the petitioners occupation was to sell Manulifes insurance policies and products from
1977 until the termination of the Career Agents Agreement (Agreement). The evidence also shows that through the
years, Manulife permitted him to exercise guiding authority over other agents who operate under their own agency
agreements with Manulife and whose commissions he shared.[13] Under this scheme an arrangement that pervades the
insurance industry petitioner in effect became a lead agent and his own commissions increased as they included his
share in the commissions of the other agents;[14] he also received greater reimbursements for expenses and was
allowed to use Manulifes facilities. His designation also changed from unit manager to branch manager and then to
regional sales manager, to reflect the increase in the number of agents he recruited and guided, as well as the increase
in the area where these agents operated.

As our assailed Resolution concluded and as we now similarly conclude, these arrangements, and the titles and positions
the petitioner was invested with, did not change his status from the insurance agent that he had always been (as
evidenced by the Agreement that governed his relationship with Manulife from the start to its disagreeable end). The
petitioner simply progressed from his individual agency to being a lead agent who could use other agents in selling
insurance and share in the earnings of these other agents.

In sum, we find absolutely no evidence of labor law control, as extensively discussed in our Resolution of June 29, 2010,
granting Manulifes motion for reconsideration. The Dissent, unfortunately, misses this point.

B. No Resulting Inequity

We also do not agree that our assailed Resolution has the effect of fostering an inequitable or unjust situation. The
records show that the petitioner was very amply paid for his services as an insurance agent, who also shared in the
commissions of the other agents under his guidance. In 1997, his income was P2,822,620; in 1998, P4,805,166.34; in
1999, P6,797,814.05; in 2001, P6,214,737.11; and in 2002, P8,003,180.38. All these he earned as an insurance agent, as
he failed to ever prove that he earned these sums as an employee. In technical terms, he could not have earned all these
as an employee because he failed to provide the substantial evidence required in administrative cases to support the
finding that he was a Manulife employee. No inequity results under this legal situation; what would be unjust is an
award of backwages and separation pay amounts that are not due him because he was never an employee.

The Dissents discussion on this aspect of the case begins with the wide disparity in the status of the parties that
Manulife is a big Canadian insurance company while Tongko is but a single agent of Manulife. The Dissent then went on
to say that [i]f is but just, it is but right, that the Court interprets the relationship between Tongko and Manulife as one
of employment under labor laws and to uphold his constitutionally protected right, as an employee, to security of tenure
and entitlement to monetary award should such right be infringed.[15] We cannot simply invoke the magical formula by
creating an employment relationship even when there is none because of the unavoidable and inherently weak position
of an individual over a giant corporation.

The Dissent likewise alluded to an ambiguity in the true relationship of the parties after Tongkos successive
appointments. We already pointed out that the legal significance of these appointments had not been sufficiently
explained and that it did not help that Tongko never bothered to present evidence on this point. The Dissent recognized
this but tried to excuse Tongko from this failure in the subsequent discussion, as follows:

[o]ther evidence was adduced to show such duties and responsibilities. For one, in his letter of November 6, 2001,
respondent De Dios addressed petitioner as sales manager. And as I wrote in my Dissent to the June 29, 2010
Resolution, it is difficult to imagine that Manulife did not issue promotional appointments to petitioner as unit manager,
branch manager, and, eventually, regional sales manager. Sound management practice simply requires an appointment
for any upward personnel movement, particularly when additional functions and the corresponding increase in
compensation are involved. Then, too, the adverted affidavits of the managers of Manulife as to the duties and
responsibilities of a unit manager, such as petitioner, point to the conclusion that these managers were employees of
Manulife, applying the four-fold test.[16]

This Court (and all adjudicators for that matter) cannot and should not fill in the evidentiary gaps in a partys case that
the party failed to support; we cannot and should not take the cudgels for any party. Tongko failed to support his cause
and we should simply view him and his case as they are; our duty is to sit as a judge in the case that he and the
respondent presented.

To support its arguments on equity, the Dissent uses the Constitution and the Civil Code, using provisions and principles
that are all motherhood statements. The mandate of the Court, of course, is to decide cases based on the facts and the
law, and not to base its conclusions on fundamental precepts that are far removed from the particular case presented
before it. When there is no room for their application, of capacity of principles, reliance on the application of these
fundamental principles is misplaced.

C. Earnings were Commissions

That his earnings were agents commissions arising from his work as an insurance agent is a matter that the petitioner
cannot deny, as these are the declarations and representations he stated in his income tax returns through the years. It
would be doubly unjust, particularly to the government, if he would be allowed at this late point to turn around and
successfully claim that he was merely an employee after he declared himself, through the years, as an independent self-
employed insurance agent with the privilege of deducting business expenses. This aspect of the case alone considered
together with the probative value of income tax declarations and returns filed prior to the present controversy should
be enough to clinch the present case against the petitioners favor.

D. The Dissents Solution:

Unwieldy and Legally Infirm

The Dissent proposes that Tongko should be considered as part employee (as manager) and part insurance agent;
hence, the original decision should be modified to pertain only to the termination of his employment as a manager and
not as an insurance agent. Accordingly, the backwages component of the original award to him should not include the
insurance sales commissions. This solution, according to the line taken by the Dissent then, was justified on the view
that this was made on a case-to-case basis.

Decisions of the Supreme Court, as the Civil Code provides, form part of the law of the land. When the Court states that
the determination of the existence of an employment relationship should be on a case-to-case basis, this does not mean
that there will be as many laws on the issue as there are cases. In the context of this case, the four-fold test is the
established standard for determining employer-employee relationship and the existence of these elements, most
notably control, is the basis upon which a conclusion on the absence of employment relationship was anchored. This
simply means that a conclusion on whether employment relationship exists in a particular case largely depends on the
facts and, in no small measure, on the parties evidence vis--vis the clearly defined jurisprudential standards. Given that
the parties control what and how the facts will be established in a particular case and/or how a particular suit is to be
litigated, deciding the issues on a case-to-case basis becomes an imperative.

Another legal reality, a more important one, is that the duty of a court is to say what the law is.[17] This is the same duty
of the Supreme Court that underlies the stare decisis principle. This is how the public, in general and the insurance
industry in particular, views the role of this Court and courts in general in deciding cases. The lower courts and the bar,
most specially, look up to the rulings of this Court for guidance. Unless extremely unavoidable, the Court must, as a
matter of sound judicial policy, resist the temptation of branding its ruling pro hac vice.

The compromise solution of declaring Tongko both an employee and an agent is legally unrealistic, unwieldy and is, in
fact, legally infirm, as it goes against the above basic principles of judicial operation. Likewise, it does not and cannot
realistically solve the problem/issue in this case; it actually leaves more questions than answers.

As already pointed out, there is no legal basis (be it statutory or jurisprudential) for the part-employee/part-insurance
agent status under an essentially principal-agent contractual relation which the Dissent proposes to accord to Tongko. If
the Dissent intends to establish one, this is highly objectionable for this would amount to judicial legislation. A legal
relationship, be it one of employment or one based on a contract other than employment, exists as a matter of law
pursuant to the facts, incidents and legal consequences of the relationship; it cannot exist devoid of these legally
defined underlying facts and legal consequences unless the law itself creates the relationship an act that is beyond the
authority of this Court to do.

Additionally, the Dissents conclusion completely ignores an unavoidable legal reality that the parties are bound by a
contract of agency that clearly subsists notwithstanding the successive designation of Tongko as a unit manager, a
branch manager and a regional sales manager. (As already explained in our Resolution granting Manulifes motion for
reconsideration, no evidence on record exists to provide the Court with clues as to the precise impact of all these
designations on the contractual agency relationship.) The Dissent, it must be pointed out, concludes that Tongkos
employment as manager was illegally terminated; thus, he should be accordingly afforded relief therefor. But, can
Tongko be given the remedies incidental to his dismissal as manager separately from his status as an insurance agent? In
other words, since the respondents terminated all relationships with Tongko through the termination letter, can we
simply rule that his role as a manager was illegally terminated without touching on the consequences of this ruling on his
status as an insurance agent? Expressed in these terms, the inseparability of his contract as agent with any other
relationship that springs therefrom can thus be seen as an insurmountable legal obstacle.

The Dissents compromise approach would also sanction split jurisdiction. The labor tribunals shall have jurisdiction over
Tongkos employment as manager while another entity shall decide the issues/cases arising from the agency
relationship. If the managerial employment is anchored on the agency, how will the labor tribunals decide an issue that
is inextricably linked with a relationship that is outside the loop of their jurisdiction? As already mentioned in the
Resolution granting Manulifes reconsideration, the DOMINANT relationship in this case is agency and no other.

E. The Dissents Cited Cases

The Dissent cites the cases of Great Pacific Life Assurance Corporation v. National Labor Relations Commission[18] and
Insular Life Assurance Co., Ltd. v. National Labor Relations Commission[19] to support the allegation that Manulife
exercised control over the petitioner as an employer.

In considering these rulings, a reality that cannot but be recognized is that cases turn and are decided on the basis of
their own unique facts; the ruling in one case cannot simply be bodily lifted and applied to another, particularly when
notable differences exist between the cited cases and the case under consideration; their respective facts must be
strictly examined to ensure that the ruling in one applies to another. This is particularly true in a comparison of the cited
cases with the present case. Specifically, care should be taken in reading the cited cases and applying their rulings to the
present case as the cited cases all dealt with the proper legal characterization of subsequent management contracts that
superseded the original agency contract between the insurance company and the agent.

In Great Pacific Life, the Ruiz brothers were appointed to positions different from their original positions as insurance
agents, whose duties were clearly defined in a subsequent contract. Similarly, in Insular, de los Reyes, a former
insurance agent, was appointed as acting unit manager based on a subsequent contract. In both cases, the Court
anchored its findings of labor control on the stipulations of these subsequent contracts.

In contrast, the present case is remarkable for the absence of evidence of any change in the nature of the petitioners
employment with Manulife. As previously stated above and in our assailed Resolution, the petitioner had always been
governed by the Agreement from the start until the end of his relationship with Manulife. His agency status never
changed except to the extent of being a lead agent. Thus, the cited cases where changes in company-agent relationship
expressly changed and where the subsequent contracts were the ones passed upon by the Court cannot be totally relied
upon as authoritative.

We cannot give credit as well to the petitioners claim of employment based on the affidavits executed by other Manulife
agents describing their duties, because these same affidavits only affirm their status as independent agents, not as
employees. To quote these various claims:[20]

1.a. I have no fixed wages or salary since my services are compensated by way of commissions based on the computed
premiums paid in full on the policies obtained thereat;

1.b. I have no fixed working hours and employ my own method in soliciting insurance at a time and place I see fit;

1.c. I have my own assistant and messenger who handle my daily work load;

1.d. I use my own facilities, tools, materials and supplies in carrying out my business of selling insurance;


6. I have my own staff that handles day to day operations of my office;

7. My staff are my own employees and received salaries from me;


9. My commission and incentives are all reported to the Bureau of Internal Revenue (BIR) as income by a self-employed
individual or professional with a ten (10) percent creditable withholding tax. I also remit monthly for professionals.

The petitioner cannot also rely on the letter written by respondent Renato Vergel de Dios to prove that Manulife
exercised control over him. As we already explained in the assailed Resolution:

Even de Dios letter is not determinative of control as it indicates the least amount of intrusion into Tongkos exercise of
his role as manager in guiding the sales agents. Strictly viewed, de Dios directives are merely operational guidelines on
how Tongko could align his operations with Manulifes re-directed goal of being a big league player. The method is to
expand coverage through the use of more agents. This requirement for the recruitment of more agents is not a means-
and-method control as it relates, more than anything else, and is directly relevant, to Manulifes objective of expanded
business operations through the use of a bigger sales force whose members are all on a principal-agent relationship. An
important point to note here is that Tongko was not supervising regular full-time employees of Manulife engaged in the
running of the insurance business; Tongko was effectively guiding his corps of sales agents, who are bound to Manulife
through the same agreement that he had with manulife, all the while sharing in these agents commissions through his

Lastly, in assailing the Agreement between him and Manulife, the petitioner cites Paguio v. National Labor Relations
Commission[22] on the claim that the agreement that the parties signed did not conclusively indicate the legal
relationship between them.

The evidentiary situation in the present case, however, shows that despite the petitioners insistence that the Agreement
was no longer binding between him and Manulife, no evidence was ever adduced to show that their relationship
changed so that Manulife at some point controlled the means and method of the petitioners work. In fact, his evidence
only further supports the conclusion that he remained an independent insurance agent a status he admits, subject only
to the qualification that he is at the same time an employee. Thus, we can only conclude that the Agreement governed
his relations with Manulife.

Additionally, it is not lost on us that Paguio is a ruling based on a different factual setting; it involves a publishing firm
and an account executive, whose repeated engagement was considered as an indication of employment. Our ruling in
the present case is specific to the insurance industry, where the law permits an insurance company to exercise control
over its agents within the limits prescribed by law, and to engage independent agents for several transactions and within
an unlimited period of time without the relationship amounting to employment. In light of these realities, the
petitioners arguments on his last argument must also fail.

The dissent also erroneously cites eight other cases Social Security System v. Court of Appeals,[23] Cosmopolitan Funeral
Homes, Inc. v. Maalat,[24] Algon Engineering Construction Corporation v. National Labor Relations Commission,[25]
Equitable Banking Corporation v. National Labor Relations Commission,[26] Lazaro v. Social Security Commission,[27]
Dealco Farms, Inc. v. National Labor Relations Commission,[28] South Davao Development Company, Inc. v. Gamo,[29]
and Abante, Jr. v. Lamadrid Bearing & Parts Corporation.[30] The dissent cited these cases to support its allegation that
labor laws and jurisprudence should be applied in cases, to the exclusion of other laws such as the Civil Code or the
Insurance Code, even when the latter are also applicable.

In Social Security System, Cosmopolitan Funeral Homes, Dealco Farms, and South Davao Development, the issue that
repeats itself is whether complainants were employees or independent contractors; the legal relationships involved are
both labor law concepts and make no reference to the Civil Code (or even the Insurance Code). The provisions cited in
the Dissent Articles 1458-1637 of the Civil Code[31] and Articles 1713-1720 of the Civil Code [32] do not even appear in
the decisions cited.

In Algon, the issue was whether the lease contract should dictate the legal relationship between the parties, when there
was proof of an employer-employee relationship. In the cited case, the lease provisions on termination were thus
considered irrelevant because of a substantial evidence of an employment relationship. The cited case lacks the
complexity of the present case; Civil Code provisions on lease do not prescribe that lessees exercise control over their
lessors in the way that the Insurance Code and the Civil provide that insurance companies and principals exercised
control over their agents.

The issue in Equitable, on the other hand, is whether a lawyer-client relationship or an employment relationship governs
the legal relation between parties. Again, this case is inapplicable as it does not illustrate the predominance of labor laws
and jurisprudence over other laws, in general, and the Insurance Code and Civil Code, in particular. It merely weighed
the evidence in favor of an employment relationship over that of a lawyer-client relationship. Similarly in Lazaro, the
Court found ample proof of control determinative of an employer-employee relationship. Both cases are not applicable
to the present case, which is attended by totally different factual considerations as the petitioner had not offered any
evidence of the companys control in the means and manner of the performance of his work.

On the other hand, we find it strange that the dissent cites Abante as a precedent, since the Court, in this case, held that
an employee-employer relationship is notably absent in this case as the complainant was a sales agent. This case better
supports the majoritys position that a sales agent, who fails to show control in the concept of labor law, cannot be
considered an employee, even if the company exercised control in the concept of a sales agent.[33]

It bears stressing that our ruling in this case is not about which law has primacy over the other, but that we should be
able to reconcile these laws. We are merely saying that where the law makes it mandatory for a company to exercise
control over its agents, the complainant in an illegal dismissal case cannot rely on these legally prescribed control
devices as indicators of an employer-employee relationship. As shown in our discussion, our consideration of the
Insurance Code and Civil Code provisions does not negate the application of labor laws and jurisprudence; ultimately, we
dismissed the petition because of its failure to comply with the control test.

WHEREFORE, premises considered, we hereby DENY the Motion for Reconsideration WITH FINALITY for lack of merit. No
further pleadings shall be entertained. Let entry of judgment proceed in due course. SO ORDERED.