Power of control seals employer’s link to employee

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Persida Acosta

Persida Acosta

Dear PAO,
In one massage clinic here in Pasay City in Metro Manila, there are about 17 persons, including myself, whose job is to give people massages. The owner of the massage clinic made us report in uniform every 3:00 p.m. until 1:00 a.m. of the following day, and required us also to sign the log book at the guard every time we report and leave the premises. The owner would also suspend us whenever we do not follow his orders. At present, he suspended me for two weeks without informing me of any violations that I committed.

I am planning to file a case for illegal dismissal against him but my co-workers discouraged me, because they said only an employee can file such a case. According to them, an employee is one who is being paid with salary unlike us who are on commission basis. Moreover, I do not have any contract of employment to support the case. Is this correct?
Jen

Dear Jen,
The opinion of your co-workers stating that you cannot file a case for illegal dismissal against your employer, because you are not an employee, is not correct. An employee includes any individual employed by an employer (Article 97 (c), Title II, Presidential Decree 442, as amended).

In Lirio vs Genovia (G.R. No. 169757, November 23, 2011), the Supreme Court enumerated the elements of employer-employee relationship before one can file a case for illegal dismissal:


“Before a case for illegal dismissal can prosper, it must first be established that an employer-employee relationship existed between petitioner and respondent.

The elements to determine the existence of an employment relationship are: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power to control the employee’s conduct. The most important element is the employer’s control of the employee’s conduct, not only as to the result of the work to be done, but also as to the means and methods to accomplish it.

It is settled that no particular form of evidence is required to prove the existence of an employer-employee relationship. Any competent and relevant evidence to prove the relationship may be admitted”.

In your situation, you are all considered as employees of the owner of the massage clinic. Although payment of wages is an element that is lacking in your case, the most important element is present, which is the power of control. The owner of the massage clinic has the power of control over all of you, because he required you to report on time, in proper uniform and even suspended any one of you who violated his order. Since there is no written contract of employment to support the employer-employee relationship, you can present the log book, which you were required to sign every time you report and leave your work to bolster your claim for illegal dismissal.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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