Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 157214 June 7, 2005
PHILIPPINE GLOBAL COMMUNICATIONS, INC., petitioner,
vs.
RICARDO DE ERA, respondent.
D ! I S I O N
GARCIA, J.:
"efore us is this appeal b# $a# of a petition for revie$ on certiorari fro% the &' Septe%ber
'((' Decision
&
and the &) *ebruar# '(() Resolution
'
of the !ourt of +ppeals in !+,-.R. SP
No. ./&01, upholdin2 the findin2 of ille2al dis%issal b# the National 3abor Relations
!o%%ission a2ainst petitioner.
+s culled fro% the records, the pertinent facts are4
Petitioner Philippine -lobal !o%%unications, Inc. 5Phil!o%6, is a corporation en2a2ed in the
business of co%%unication services and allied activities, $hile respondent Ricardo De Vera is a
ph#sician b# profession $ho% petitioner enlisted to attend to the %edical needs of its e%plo#ees.
+t the cru7 of the controvers# is Dr. De Vera8s status vis a vis petitioner $hen the latter
ter%inated his en2a2e%ent.
It appears that on &/ Ma# &91&, De Vera, via a letter dated &/ Ma# &91&,
)
offered his services to
the petitioner, therein proposin2 his plan of $or:s re;uired of a practitioner in industrial
%edicine, to include the follo$in24
&. +pplication of preventive %edicine includin2 periodic chec:,up of e%plo#ees<
'. Holdin2 of clinic hours in the %ornin2 and afternoon for a total of five 5/6 hours dail#
for consultation services to e%plo#ees<
). Mana2e%ent and treat%ent of e%plo#ees that %a# necessitate hospitali=ation
includin2 e%er2enc# cases and accidents<
>. !onduct pre,e%plo#%ent ph#sical chec:,up of prospective e%plo#ees $ith no
additional %edical fee<
/. !onduct ho%e visits $henever necessar#<
.. +ttend to certain %edical ad%inistrative function such as acco%plishin2 %edical
for%s, evaluatin2 conditions of e%plo#ees appl#in2 for sic: leave of absence and
subse;uentl# issuin2 proper certification, and all %atters referred $hich are %edical in
nature.
The parties a2reed and for%ali=ed respondent8s proposal in a docu%ent deno%inated as
RETAINERSHIP CONTRACT
>
$hich $ill be for a period of one #ear sub?ect to rene$al, it
bein2 %ade clear therein that respondent $ill cover @the retainership the !o%pan# previousl#
had $ith Dr. A. ulau@ and that respondent8s @retainer fee@ $ill be at P>,(((.(( a %onth. Said
contract $as rene$ed #earl#.
/
The retainership arran2e%ent $ent on fro% &91& to &99> $ith
chan2es in the retainer8s fee. Ho$ever, for the #ears &99/ and &99., rene$al of the contract $as
onl# %ade verball#.
The turnin2 point in the parties8 relationship surfaced in Dece%ber &99. $hen Philco%, thru a
letter
.
bearin2 on the sub?ect boldl# $ritten as @TRMIN+TION B RT+INRSHIP
!ONTR+!T@, infor%ed De Vera of its decision to discontinue the latter8s @retainer8s contract
$ith the !o%pan# effective at the close of business hours of Dece%ber )&, &99.@ because
%ana2e%ent has decided that it $ould be %ore practical to provide %edical services to its
e%plo#ees throu2h accredited hospitals near the co%pan# pre%ises.
On '' Canuar# &990, De Vera filed a co%plaint for ille2al dis%issal before the National 3abor
Relations !o%%ission 5N3R!6, alle2in2 that that he had been actuall# e%plo#ed b# Philco% as
its co%pan# ph#sician since &91& and $as dis%issed $ithout due process. He averred that he
$as desi2nated as a @co%pan# ph#sician on retainer basis@ for reasons alle2edl# :no$n onl# to
Philco%. He li:e$ise professed that since he $as not conversant $ith labor la$s, he did not 2ive
%uch attention to the desi2nation as an#$a# he $or:ed on a full,ti%e basis and $as paid a basic
%onthl# salar# plus frin2e benefits, li:e an# other re2ular e%plo#ees of Philco%.
On '& Dece%ber &991, 3abor +rbiter Ra%on Valentin !. Re#es ca%e out $ith a decision
0

dis%issin2 De Vera8s co%plaint for lac: of %erit, on the rationale that as a @retained ph#sician@
under a valid contract %utuall# a2reed upon b# the parties, De Vera $as an @independent
contractor@ and that he @$as not dis%issed but rather his contract $ith DPHI3!OME ended $hen
said contract $as not rene$ed after Dece%ber )&, &99.@.
On De Vera8s appeal to the N3R!, the latter, in a decision
1
dated ') October '(((, reversed 5the
$ord used is @%odified@6 that of the 3abor +rbiter, on a findin2 that De Vera is Philco%8s
@re2ular e%plo#ee@ and accordin2l# directed the co%pan# to reinstate hi% to his for%er position
$ithout loss of seniorit# ri2hts and privile2es and $ith full bac:$a2es fro% the date of his
dis%issal until actual reinstate%ent. Fe ;uote the dispositive portion of the decision4
FHR*OR, the assailed decision is %odified in that respondent is ordered to reinstate
co%plainant to his for%er position $ithout loss of seniorit# ri2hts and privile2es $ith full
bac:$a2es fro% the date of his dis%issal until his actual reinstate%ent co%puted as follo$s4
"ac:$a2es4
a6 "asic Salar#
*ro% Dec. )&, &99. to +pr. &(, '((( G )9.)) %os.
P>>,>((.(( 7 )9.)) %os. P&,0/(,&1/.((
b6
&)th Month Pa#4
&H&' of P&,0/(,&1/.((
&>/,1>1.0/
c6
Travellin2 allo$ance4
P&,(((.(( 7 )9.)) %os.
)9,))(.((
-R+ND TOT+3 P&,9)/,).).0/
The decision stands in other aspects.
SO ORDRD.
Fith its %otion for reconsideration havin2 been denied b# the N3R! in its order of '0 *ebruar#
'((&,
9
Philco% then $ent to the !ourt of +ppeals on a petition for certiorari, thereat doc:eted as
CA!G.R. SP No. "517#, i%putin2 2rave abuse of discretion a%ountin2 to lac: or e7cess of
?urisdiction on the part of the N3R! $hen it reversed the findin2s of the labor arbiter and
a$arded thirteenth %onth pa# and travelin2 allo$ance to De Vera even as such a$ard had no
basis in fact and in la$.
On &' Septe%ber '((', the !ourt of +ppeals rendered a decision,
&(
%odif#in2 that of the N3R!
b# deletin2 the a$ard of travelin2 allo$ance, and orderin2 pa#%ent of separation pa# to De Vera
in lieu of reinstate%ent, thus4
$HERE%ORE, pre%ises considered, the assailed ?ud2%ent of public respondent, dated ')
October '(((, is MODI%IED. The a$ard of travelin2 allo$ance is deleted as the sa%e is hereb#
D3TD. Instead of reinstate%ent, private respondent shall be paid separation pa# co%puted
at one 5&6 %onth salar# for ever# #ear of service co%puted fro% the ti%e private respondent
co%%enced his e%plo#%ent in &91& up to the actual pa#%ent of the bac:$a2es and separation
pa#. The a$ards of bac:$a2es and &)th %onth pa# ST+ND.
SO ORDRD.
In ti%e, Philco% filed a %otion for reconsideration but $as denied b# the appellate court in its
resolution of &) *ebruar# '(().
&&
Hence, Philco%8s present recourse on its %ain sub%ission that ,
TH !OIRT O* +PP+3S RRD IN SIST+ININ- TH D!ISION O* TH N+TION+3
3+"OR R3+TIONS !OMMISSION +ND RNDRIN- TH JISTIOND D!ISION
+ND RSO3ITION IN + F+K TH+T IS NOT IN +!!ORD FITH TH *+!TS +ND
+PP3I!+"3 3+FS +ND CIRISPRIDN! FHI!H DISTIN-IISH 3-ITIM+T CO"
!ONTR+!TIN- +-RMNTS *ROM TH MP3OKR,MP3OK R3+TIONSHIP.
Fe GRANT.
Inder Rule >/ of the Rules of !ourt, onl# ;uestions of la$ %a# be revie$ed b# this !ourt in
decisions rendered b# the !ourt of +ppeals. There are instances, ho$ever, $here the !ourt
departs fro% this rule and revie$s findin2s of fact so that substantial ?ustice %a# be served. The
e7ceptional instances are $here4
@777 777 777 5&6 the conclusion is a findin2 2rounded entirel# on speculation, sur%ise and
con?ecture< 5'6 the inference %ade is %anifestl# %ista:en< 5)6 there is 2rave abuse of discretion<
5>6 the ?ud2%ent is based on a %isapprehension of facts< 5/6 the findin2s of fact are conflictin2<
5.6 the !ourt of +ppeals $ent be#ond the issues of the case and its findin2s are contrar# to the
ad%issions of both appellant and appellees< 506 the findin2s of fact of the !ourt of +ppeals are
contrar# to those of the trial court< 516 said findin2s of facts are conclusions $ithout citation of
specific evidence on $hich the# are based< 596 the facts set forth in the petition as $ell as in the
petitioner8s %ain and repl# briefs are not disputed b# the respondents< and 5&(6 the findin2s of
fact of the !ourt of +ppeals are pre%ised on the supposed absence of evidence and contradicted
b# the evidence on record.@
&'
+s $e see it, the parties8 respective sub%issions revolve on the pri%ordial issue of $hether an
e%plo#er,e%plo#ee relationship e7ists bet$een petitioner and respondent, the e7istence of $hich
is, in itself, a ;uestion of fact
&)
$ell $ithin the province of the N3R!. Nonetheless, 2iven the
realit# that the N3R!8s findin2s are at odds $ith those of the labor arbiter, the !ourt, consistent
$ith its rulin2 in Jimenez vs. National Labor Relations Commission,
&>
is constrained to loo:
deeper into the attendant circu%stances obtainin2 in this case, as appearin2 on record.
In a lon2 line of decisions,
&/
the !ourt, in deter%inin2 the e7istence of an e%plo#er,e%plo#ee
relationship, has invariabl# adhered to the four,fold test, to $it4 D&E the selection and en2a2e%ent
of the e%plo#ee< D'E the pa#%ent of $a2es< D)E the po$er of dis%issal< and D>E the po$er to
control the e%plo#ee8s conduct, or the so,called @control test@, considered to be the %ost
i%portant ele%ent.
+ppl#in2 the four,fold test to this case, $e initiall# find that it $as respondent hi%self $ho sets
the para%eters of $hat his duties $ould be in offerin2 his services to petitioner. This is borne b#
no less than his &/ Ma# &91& letter
&.
$hich, in full, reads4
@Ma# &/, &91&
Mrs. +dela 3. Vicente
Vice President, Industrial Relations
Phil!o%, Paseo de Ro7as
Ma:ati, Metro Manila
M a d a % 4
I shall have the ti%e and effort for the position of !o%pan# ph#sician $ith #our corporation if
#ou dee%ed it necessar#. I have the necessar# ;ualifications, trainin2 and e7perience re;uired b#
such position and I a% confident that I can serve the best interests of #our e%plo#ees, %edicall#.
M# plan of $or:s and tar2ets shall cover the duties and responsibilities re;uired of a practitioner
in industrial %edicine $hich includes the follo$in24
&. +pplication of preventive %edicine includin2 periodic chec:,up of e%plo#ees<
'. Holdin2 of clinic hours in the %ornin2 and afternoon for a total of five 5/6
hours dail# for consultation services to e%plo#ees<
). Mana2e%ent and treat%ent of e%plo#ees that %a# necessitate hospitali=ation
includin2 e%er2enc# cases and accidents<
>. !onduct pre,e%plo#%ent ph#sical chec:,up of prospective e%plo#ees $ith no
additional %edical fee<
/. !onduct ho%e visits $henever necessar#<
.. +ttend to certain %edical ad%inistrative functions such as acco%plishin2
%edical for%s, evaluatin2 conditions of e%plo#ees appl#in2 for sic: leave of
absence and subse;uentl# issuin2 proper certification, and all %atters referred
$hich are %edical in nature.
On the sub?ect of co%pensation for the services that I propose to render to the corporation, #ou
%a# state an offer based on #our belief that I can ver# $ell ;ualif# for the ?ob havin2 $or:ed
$ith #our or2ani=ation for so%eti%e no$.
I shall be ver# 2rateful for $hatever :ind attention #ou %a# e7tend on this %atter and hopin2
that it $ill %erit acceptance, I re%ain
Ver# trul# #ours,
5si2ned6
RI!+RDO V. D VR+, M.D.@
Si2nificantl#, the fore2oin2 letter $as substantiall# the basis of the labor arbiter8s findin2 that
there e7isted no e%plo#er,e%plo#ee relationship bet$een petitioner and respondent, in addition
to the follo$in2 factual settin2s4
The fact that the co%plainant $as not considered an e%plo#ee $as reco2ni=ed b# the
co%plainant hi%self in a si2ned letter to the respondent dated +pril '&, &91' attached as +nne7
- to the respondent8s Repl# and Re?oinder. Juotin2 the pertinent portion of said letter4
LTo carr# out #our %e%o effectivel# and to provide a s#ste%atic and $or:able ti%e schedule
$hich $ill serve the best interests of both the present and absent e%plo#ee, %a# I propose an
e7tended t$o,hour service 5&4((,)4(( P.M.6 durin2 $hich period I can devote a%ple ti%e to both
2roups dependin2 upon the ur2enc# of the situation. I shall read?ust %# private schedule to be
available for the herein proposed e7tended hours, should #ou consider this proposal.
+s re2ards co%pensation for the additional ti%e and services that I shall render to the e%plo#ees,
it is dependent on #our evaluation of the %erit of %# proposal and #our confidence on %# abilit#
to carr# out efficientl# said proposal.8
The tenor of this letter indicates that the co%plainant $as proposin2 to e7tend his ti%e $ith the
respondent and see:in2 additional co%pensation for said e7tension. This sho$s that the
respondent PHI3!OM did not have control over the schedule of the co%plainant as it DisE the
co%plainant $ho is proposin2 his o$n schedule and as:in2 to be paid for the sa%e. This is proof
that the co%plainant understood that his relationship $ith the respondent PHI3!OM $as a
retained ph#sician and not as an e%plo#ee. If he $ere an e%plo#ee he could not ne2otiate as to
his hours of $or:.
The co%plainant is a Doctor of Medicine, and presu%abl#, a $ell,educated person. Ket, the
co%plainant, in his position paper, is clai%in2 that he is not conversant $ith the la$ and did not
2ive %uch attention to his ?ob title, on a Lretainer basis8. "ut the sa%e co%plainant ad%its in his
affidavit that his service for the respondent $as covered b# a retainership contract D$hichE $as
rene$ed ever# #ear fro% &91' to &99>. Ipon readin2 the contract dated Septe%ber ., &91',
si2ned b# the co%plainant hi%self 5+nne7 L!8 of Respondent8s Position Paper6, it clearl# states
that is a retainership contract. The retainer fee is indicated thereon and the duration of the
contract for one #ear is also clearl# indicated in para2raph / of the Retainership !ontract. The
co%plainant cannot clai% that he $as una$are that the Lcontract8 $as 2ood onl# for one #ear, as
he si2ned the sa%e $ithout an# ob?ections. The co%plainant also accepted its rene$al ever# #ear
thereafter until &99>. +s a literate person and educated person, the co%plainant cannot clai% that
he does not :no$ $hat contract he si2ned and that it $as rene$ed on a #ear to #ear basis.
&0
The labor arbiter added the indicia, not disputed b# respondent, that fro% the ti%e he started to
$or: $ith petitioner, he never $as included in its pa#roll< $as never deducted an# contribution
for re%ittance to the Social Securit# S#ste% 5SSS6< and $as in fact sub?ected b# petitioner to the
ten 5&(M6 percent $ithholdin2 ta7 for his professional fee, in accordance $ith the National
Internal Revenue !ode, %atters $hich are si%pl# inconsistent $ith an e%plo#er,e%plo#ee
relationship. In the precise $ords of the labor arbiter4
@777 777 777 +fter %ore than ten #ears of services to PHI3!OM, the co%plainant $ould have
noticed that no SSS deductions $ere %ade on his re%uneration or that the respondent $as
deductin2 the &(M ta7 for his fees and he surel# $ould have co%plained about the% if he had
considered hi%self an e%plo#ee of PHI3!OM. "ut he never raised those issues. +n ordinar#
e%plo#ee $ould consider the SSS pa#%ents i%portant and thus %a:e sure the# $ould be paid.
The co%plainant never bothered to as: the respondent to re%it his SSS contributions. This
clearl# sho$s that the co%plainant never considered hi%self an e%plo#ee of PHI3!OM and
thus, respondent need not re%it an#thin2 to the SSS in favor of the co%plainant.@
&1
!learl#, the ele%ents of an e%plo#er,e%plo#ee relationship are $antin2 in this case. Fe %a# add
that the records are replete $ith evidence sho$in2 that respondent had to bill petitioner for his
%onthl# professional fees.
&9
It si%pl# runs a2ainst the 2rain of co%%on e7perience to i%a2ine
that an ordinar# e%plo#ee has #et to bill his e%plo#er to receive his salar#.
Fe note, too, that the po$er to ter%inate the parties8 relationship $as %utuall# vested on both.
ither %a# ter%inate the arran2e%ent at $ill, $ith or $ithout cause.
'(
*inall#, re%ar:abl# absent fro% the parties8 arran2e%ent is the ele%ent of control, $hereb# the
e%plo#er has reserved the ri2ht to control the e%plo#ee not onl# as to the result of the $or: done
but also as to the %eans and %ethods b# $hich the sa%e is to be acco%plished.
'&
Here, petitioner had no control over the %eans and %ethods b# $hich respondent $ent about
perfor%in2 his $or: at the co%pan# pre%ises. He could even e%bar: in the private practice of
his profession, not to %ention the fact that respondent8s $or: hours and the additional
co%pensation therefor $ere ne2otiated upon b# the parties.
''
In fine, the parties the%selves
practicall# a2reed on ever# ter%s and conditions of respondent8s en2a2e%ent, $hich thereb#
ne2ates the ele%ent of control in their relationship. *or sure, respondent has never cited even a
sin2le instance $hen petitioner interfered $ith his $or:.
Ket, despite the fore2oin2, all of $hich are e7tant on record, both the N3R! and the !ourt of
+ppeals ruled that respondent is petitioner8s re2ular e%plo#ee at the ti%e of his separation.
Partl# sa#s the appellate court in its assailed decision4
"e that as it %a#, it is ad%itted that private respondent8s $ritten Lretainer contract8 $as rene$ed
annuall# fro% &91& to &99> and the alle2ed Lrene$al8 for &99/ and &99., $hen it $as alle2edl#
ter%inated, $as verbal.
+rticle '1( of the 3abor code 5sic6 provides4
LThe provisions of $ritten a2ree%ent to the contrar# no&'(&)*&+n,(n- +n, .e-+.,/e** o0 &)e
o.+/ +-.ee1en&* o0 &)e 2+.&(e*, an e%plo#%ent shall be dee%ed to be re2ular $here the
e%plo#ee has been en2a2ed to perfor% in the usual business or trade of the e%plo#er, e7cept
$here the e%plo#%ent has been fi7ed for a specific pro?ect or underta:in2 the co%pletion or
ter%ination of $hich has been deter%ined at the ti%e of the en2a2e%ent of the e%plo#ee or
$here the $or: or services to be perfor%ed is seasonal in nature and the e%plo#%ent is for the
duration of the season.8
3An e12/o41en& *)+// 5e ,ee1e, &o 5e 6+*u+/ (0 (& (* no& 6o7e.e, 54 &)e 2.e6e,(n-
2+.+-.+2)8 P.o7(,e,, T)+&, +n4 e12/o4ee ')o )+* .en,e.e, +& /e+*& one 91: 4e+. o0 *e.7(6e,
$hether such is continuous or bro:en, *)+// 5e 6on*(,e.e, + .e-u/+. '(&) .e*2e6& &o &)e
+6&(7(&4 (n ')(6) )e (* e12/o4e, and his e%plo#%ent shall continue $hile such activit# e7ists.8
Parentheticall#, the position of co%pan# ph#sician, in the case of petitioner, is usuall# necessar#
and desirable because the need for %edical attention of e%plo#ees cannot be foreseen, hence, it
is necessar# to have a ph#sician at hand. In fact, the i%portance and desirabilit# of a ph#sician in
a co%pan# pre%ises is reco2ni=ed b# +rt. &/0 of the 3abor !ode, $hich re;uires the presence of
a ph#sician dependin2 on the nu%ber of e%plo#ees and in the case at bench, in petitioner8s case,
as found b# public respondent, petitioner e%plo#s %ore than /(( e%plo#ees.
-oin2 bac: to +rt. '1( of the 3abor !ode, it $as %ade therein clear that the provisions of a
$ritten a2ree%ent to the contrar# not$ithstandin2 or the e7istence of a %ere oral a2ree%ent, if
the e%plo#ee is en2a2ed in the usual business or trade of the e%plo#er, %ore so, that he rendered
service for at least one #ear, such e%plo#ee shall be considered as a .e-u/+. e%plo#ee. Private
respondent herein has been $ith petitioner since &91& and his e%plo#%ent $as not for a specific
pro?ect or underta:in2, the period of $hich $as pre,deter%ined and neither the $or: or service
of private respondent seasonal. 5%phasis b# the !+ itself6.
Fe disa2ree to the fore2oin2 ratiocination.
The appellate court8s pre%ise that re2ular e%plo#ees are those $ho perfor% activities $hich are
desirable and necessar# for the business of the e%plo#er is not deter%inative in this case. *or, $e
ta:e it that an# a2ree%ent %a# provide that one part# shall render services for and in behalf of
another, no %atter ho$ necessar# for the latter8s business, e7en '(&)ou& 5e(n- )(.e, +* +n
e12/o4ee. This set,up is precisel# true in the case of an independent contractorship as $ell as in
an a2enc# a2ree%ent. Indeed, +rticle '1( of the 3abor !ode, ;uoted b# the appellate court, is not
the #ardstic: for deter%inin2 the e7istence of an e%plo#%ent relationship. +s it is, the provision
%erel# distin2uishes bet$een t$o 5'6 :inds of e%plo#ees, i.e., re2ular and casual. It does not
appl# $here, as here, the ver# e7istence of an e%plo#%ent relationship is in dispute.
')
"uttressin2 his contention that he is a re2ular e%plo#ee of petitioner, respondent invo:es +rticle
&/0 of the 3abor !ode, and ar2ues that he satisfies all the re;uire%ents thereunder. The provision
relied upon reads4
+RT. &/0. Emergency medical and dental services. B It shall be the dut# of ever# e%plo#er to
furnish his e%plo#ees in an# localit# $ith free %edical and dental attendance and facilities
consistin2 of4
5a6 The services of a full,ti%e re2istered nurse $hen the nu%ber of e%plo#ees e7ceeds
fift# 5/(6 but not %ore than t$o hundred 5'((6 e7cept $hen the e%plo#er does not
%aintain ha=ardous $or:places, in $hich case the services of a 2raduate first,aider shall
be provided for the protection of the $or:ers, $here no re2istered nurse is available. The
Secretar# of 3abor shall provide b# appropriate re2ulations the services that shall be
re;uired $here the nu%ber of e%plo#ees does not e7ceed fift# 5/(6 and shall deter%ine
b# appropriate order ha=ardous $or:places for purposes of this +rticle<
5b6 The services of a full,ti%e re2istered nurse, a part,ti%e ph#sician and dentist, and an
e%er2enc# clinic, $hen the nu%ber of e%plo#ees e7ceeds t$o hundred 5'((6 but not
%ore than three hundred 5)((6< and
5c6 The services of a full,ti%e ph#sician, dentist and full,ti%e re2istered nurse as $ell as
a dental clinic, and an infir%ar# or e%er2enc# hospital $ith one bed capacit# for ever#
one hundred 5&((6 e%plo#ees $hen the nu%ber of e%plo#ees e7ceeds three hundred
5)((6.
In cases of ha=ardous $or:places, no e%plo#er shall en2a2e the services of a ph#sician or dentist
$ho cannot sta# in the pre%ises of the establish%ent for at least t$o 5'6 hours, in the case of
those en2a2ed on part,ti%e basis, and not less than ei2ht 516 hours in the case of those e%plo#ed
on full,ti%e basis. Fhere the underta:in2 is nonha=ardous in nature, the ph#sician and dentist
%a# be en2a2ed on retained basis, sub?ect to such re2ulations as the Secretar# of 3abor %a#
prescribe to insure i%%ediate availabilit# of %edical and dental treat%ent and attendance in case
of e%er2enc#.
Had onl# respondent read carefull# the ver# statutor# provision invo:ed b# hi%, he $ould have
noticed that in non,ha=ardous $or:places, the e%plo#er %a# en2a2e the services of a ph#sician
@on retained basis.@ +s correctl# observed b# the petitioner, $hile it is true that the provision
re;uires e%plo#ers to en2a2e the services of %edical practitioners in certain establish%ents
dependin2 on the nu%ber of their e%plo#ees, nothin2 is there in the la$ $hich sa#s that %edical
practitioners so en2a2ed be actuall# hired as e%plo#ees,
'>
addin2 that the la$, as $ritten, onl#
re;uires the e%plo#er @to retain@, not e%plo#, a part,ti%e ph#sician $ho needed to sta# in the
pre%ises of the non,ha=ardous $or:place for t$o 5'6 hours.
'/
Respondent ta:es no issue on the fact that petitioner8s business of teleco%%unications is not
ha=ardous in nature. +s such, $hat applies here is the last para2raph of +rticle &/0 $hich, to
stress, provides that the e%plo#er %a# en2a2e the services of a ph#sician and dentist @on
retained basis@, sub?ect to such re2ulations as the Secretar# of 3abor %a# prescribe. The
successive @retainership@ a2ree%ents of the parties definitel# hue to the ver# statutor# provision
relied upon b# respondent.
Deepl# e%bedded in our ?urisprudence is the rule that courts %a# not construe a statute that is
free fro% doubt. Fhere the la$ is clear and una%bi2uous, it %ust be ta:en to %ean e7actl# $hat
it sa#s, and courts have no choice but to see to it that the %andate is obe#ed.
'.
+s it is, +rticle
&/0 of the 3abor !ode clearl# and une;uivocall# allo$s e%plo#ers in non,ha=ardous
establish%ents to en2a2e @on retained basis@ the service of a dentist or ph#sician. No$here does
the la$ provide that the ph#sician or dentist so en2a2ed thereb# beco%es a re2ular e%plo#ee.
The ver# phrase that the# %a# be en2a2ed @on retained basis@, revolts a2ainst the idea that this
en2a2e%ent 2ives rise to an e%plo#er,e%plo#ee relationship.
Fith the reco2nition of the fact that petitioner consistentl# en2a2ed the services of respondent on
a retainer basis, as sho$n b# their various @retainership contracts@, so can petitioner put an end,
$ith or $ithout cause, to their retainership a2ree%ent as therein provided.
'0
Fe note, ho$ever, that even as the contracts entered into b# the parties invariabl# provide for a
.(,da# notice re;uire%ent prior to ter%ination, the sa%e $as not co%plied $ith b# petitioner
$hen it ter%inated on &0 Dece%ber &99. the verball#,rene$ed retainership a2ree%ent, effective
at the close of business hours of )& Dece%ber &99..
"e that as it %a#, the record sho$s, and this is ad%itted b# both parties,
'1
that e7ecution of the
N3R! decision had alread# been %ade at the N3R! despite the pendenc# of the present
recourse. *or sure, accounts of petitioner had alread# been 2arnished and released to respondent
despite the previous Status Juo Order
'9
issued b# this !ourt. To all intents and purposes,
therefore, the .(,da# notice re;uire%ent has beco%e %oot and acade%ic if not $aived b# the
respondent hi%self.
$HERE%ORE, the petition is -R+NTD and the challen2ed decision of the !ourt of +ppeals
RVRSD and ST +SID. The '& Dece%ber &991 decision of the labor arbiter is
RINST+TD.
No pronounce%ent as to costs.
SO ORDRD.