HYDRO RESOURCES CONTRACTORS CORPORATION, PETITIONER, VS. LABOR ARBITER ADRIAN N. PAGALILAUAN AND THE NATIONAL LABOR RELATIONS COMMISSION, PUBLIC RESPONDENTS, AND ROGELIO A. ABAN…

This is a petition to review on certiorari the resolution of the National Labor Relations
Commission (NLRC) which affirmed the labor arbiter’s decision ordering herein
petitioner, Hydro Resources Contractors Corporation to reinstate Rogelio A. Aban to his former position without loss of seniority
rights, to pay him 12 months backwages in the amount of P18,000.00
and to pay attorney’s fees in the amount of P1,800.00.

On October
24, 1978, petitioner corporation hired the private respondent Aban as its “Legal Assistant.” He received a
basic monthly salary of P1,500.00 plus an initial
living allowance of P50.00 which gradually increased to P320.00.

On September 4, 1980,
Aban received a letter from the corporation informing
him that he would be con­sidered terminated effective October 4,1980 because
of his alleged failure to perform his duties well.

On October 6, 1980,
Aban filed a complaint against the petitioner for
illegal dismissal.

The labor arbiter ruled that Aban was
illegally dismissed.  This ruling was
affirmed by the NLRC on appeal.

Hence, this present
petition.

The only issue raised by
the petitioner is whether or not there was an employer-employee relationship
between the petitioner corporation and Aban.  The petitioner questions the jurisdiction of the public respondents
considering the alleged absence of an employer-employee relationship.

The petitioner contends
that its relationship with Aban is that of a client
with his lawyer.  It is its position that
“(a) lawyer as long as he is acting as such, as long as he is performing
acts constituting practice of law, can never be considered an employee.  His relationship with those to whom he
renders services, as such lawyer, can never be governed by the labor laws.  For a lawyer to so argue is not only
demeaning to himself (sic), but also his profession and to his brothers in the
profession.” Thus, the petitioner argues that the labor arbiter and NLRC
have no juris­diction over the instant case.

The contention is without
merit.

A lawyer, like any other
professional, may very well be an employee of a private corporation or even of
the government.  It is not unusual for a
big corporation to hire a staff of lawyers as its in-house counsel, pay them
regular salaries, rank them in its table of organization, and otherwise treat
them like its other officers and employees. 
At the same time, it may also contract with a law firm to act as outside
counsel on a retainer basis.  The two
classes of lawyers often work closely together but one group is made up of
employees while the other is not.  A
similar arrange­ment may exist as to doctors, nurses, dentists, public
relations practitioners, and other professionals.

This Court is not without
a guide in deciding whether or not an employer-employee relation exists between
the contending parties or whether or not the private respondent was hired on a
retainer basis.

As stated in the case of Tabas v. California Manufacturing Co., (G.R. No. 80680, January
26, 1989):

“This Court has consistently ruled
that the determination of whether or not there is an employer-employee relation
depends upon four standards: (1) the manner of selection and engagement of the
putative employee; (2) the mode of payment of wages; (.3) the presence or
absence of a power of dismissal; and (4) the presence or absence of a power to
control the putative employee’s conduct. 
Of the four, the right-of-control test has been held to be the decisive
factor.”

Aban was employed by the petitioner to be its
Legal Assistant as evidenced by his appointment paper (Exhibit
“A”).  The petitioner paid him
a basic salary plus living allowance. 
Thereafter, Aban was dismissed on his alleged
failure to perform his duties well. 
(Exhibit “B”)

Aban worked solely for the petitioner and dealt
only with legal matters involving the said corporation and its employees.  He also assisted the Personnel Officer in
processing appointment papers of employees. 
This latter duty is not an act of a lawyer in the exercise of his
profession but rather a duty for the benefit of the corporation.

The above-mentioned facts
show that the petitioner paid Aban’s wages, exercised
its power to hire and fire the respondent employee and more important,
exercised control over Aban by defining the duties
and functions of his work.

Moreover, estoppel lies against the
petitioner.  It may no longer question
the jurisdiction of the labor arbiter and NLRC.

The petitioner presented documents (Exhibits “2” to
“19”) before the Labor Arbiter to prove that Aban
was a managerial employee.  Now, it is
disclaiming that Aban was ever its employee.  The proper procedure was for the petitioner
to prove its allegations that Aban drank heavily, violated company policies, spent
company funds and properties for personal ends, and otherwise led the employer
to lose trust and confidence in him.  The
real issue was due process, not the specious argument raised in this petition.

The new theory presented
before this Court is a last-ditch effort by the petitioner to cover up for the
unwarranted dismissal of its employee. 
This Court frowns upon such delaying tactics.

The findings of fact of
the Labor Arbiter being supported by substantial evidence are binding on this
Court.  (See Industrial
Timber Corp. v. National Labor Relations Commission, G.R. No. 83616, January 20, 1989).

Considering
that the private respondent was illegally dismissed from his employment in
1980, he is entitled to reinstatement to his former or similar posi­tion
without loss of seniority rights, if it is still feasible, to backwages without qualification or deduction for three
years, (D.M. Consunjo, Inc. v. Pucan,
159 SCRA 107 (1988); Flores v. Nuestro, G.R. No.
66890, April 15, 1988), and to reasonable attorney’s fees in the amount of P5,000.00.  Should
reinstatement prove no longer feasible, the petitioner will pay him separation
pay in lieu of reinstatement.  (City Trust Finance Corp. v. NLRC, 157 SCRA
87; Santos v. NLRC, 154 SCRA 166; Metro Drug v. NLRC, et al., 143 SCRA 132;
Luzon Brokerage v. Luzon Labor Union, 7 SCRA 116).  The amount of such separation pay as may be
provided by law or the collective bargaining agreement is to be computed based
on the period from 24 October 1978 (date of first employment) to 4 October 1983
(three years after date of illegal dismissal). 
/Manila Midtown Commercial Corporation v. Nuwhrain,
159 SCRA 212 (1988)_/.

WHEREFORE, the petition is hereby DISMISSED for lack of
merit.  The petitioner is ordered to
reinstate the private respondent to his former or a similar position without
loss of seniority rights and to pay three (3) years backwages
without qualification or deduction and P5,000.00 in
attorney’s fees.  Should reinstatement
not be feasible, the petitioner shall pay the private respondent termination benefits in addition to the above stated
three years backpay and P5,000.00
attorney’s fees.

SO ORDERED.

Fernan, C.J., (Chairman), Feliciano, Bidin, and Cortes, JJ., concur.