ERA R.

GASPER
COMPILATION OF PARTNERSHIP CASES

JO VS. NLRC
324 SCRA 20 October 4, 2000

Ponente: Quisumbing, J.:

FACTS:

Peter Mejila worked as barber on a piece rate basis at Dina's Barber Shop. In 1970, the owner, Dina
Tan, sold the barbershop to petitioners Paz Martin Jo and Cesar Jo. All the employees, including
private respondent, were absorbed by the new owners. The name of the barbershop was changed to
Windfield Barber Shop. The owners and the barbers shared in the earnings of the barber shop. The
barbers got two-thirds (2/3) of the fee paid for every haircut or shaving job done, while one-third (1/3)
went to the owners of the shop.

Private respondent left his job voluntarily because of his misunderstanding with his co-worker and
demanded separation pay and other monetary benefits. Petitioner’s contends that respondent was not
their employee but their “partner in trade” whose compensation was based on a sharing arrangement
per haircut or shaving job done.

ISSUE:

Whether or not there exist an employer-employee relationship

HELD:

In determining the existence of an employer-employee relationship, the following elements are

considered: (1) the selection and engagement of the workers; (2) power of dismissal; (3) the payment
of wages by whatever means; and (4) the power to control the worker's conduct, with the latter
assuming primacy in the overall consideration. The power of control refers to the existence of the
power and not necessarily to the actual exercise thereof. It is not essential for the employer to actually
supervise the performance of duties of the employee; it is enough that the employer has the right to
wield that power.

Absent a clear showing that petitioners and private respondent had intended to pursue a relationship
of industrial partnership, we entertain no doubt that private respondent was employed by petitioners
as caretaker-barber.