20. Ushio Marketing vs.

NLRC and Severino Antonio

G.R. No. 124551, 28 August 1998
Facts:
Private respondent Severino Antonio was an electrician wo wor!ed witin te pre"ises o# petitioner $sio%s car accessor&
sop in 'anawe, (ue)on *it&. +n August 22, 1994, private respondent #iled a co"plaint #or illegal dis"issal, non,pa&"ent o#
overti"e pa&, olida& pa&, and oter -ene#its against petitioner $sio .ar!eting.
$sio .ar!eting denies tat Severino was its e"plo&ee. /t descri-es Severino as one o# tose independent, #ree,lance
operators wo o##er services to custo"ers o# auto parts sops along 'anawe Street, (.*.
Petitioner argues tat it was a recogni)ed and accepted trade practice peculiar to te auto spare parts sop industr& operating
along te stretc o# 'anawe Street, (ue)on *it&, tat sop owners would collect te service #ees #ro" its custo"ers and
dis-urse te sa"e to te independent contractor at te end o# a wee!.

/n #ine, te sop owner and te independent contractor were partners in trade, 0-ot -ene#iting #ro" te proceeds o# teir 1oint
e##orts.2
Issue:
34N e"plo&ee,e"plo&er relationsip e5ists.
Hed:
No. Petition granted. *allenged decision reversed.
Ratio:
6e #actors to -e considered in deter"ining te e5istence o# an e"plo&er,e"plo&ee relationsip are7 819 te selection and
engage"ent o# te e"plo&ee: 829 te pa&"ent o# wages: 8;9 te power o# dis"issal: and 849 te power to control te
e"plo&ee%s conduct. 6e so,called <control test< is co""onl& regarded as te "ost crucial and deter"inative indicator o# te
presence or a-sence o# an e"plo&er,e"plo&ee relationsip.
$nder te control test, an e"plo&er,e"plo&ee relationsip e5ists were te person #or wo" te services are per#or"ed
reserves te rigt to control not onl& te end acieved, -ut also te "anner and "eans to -e used in reacing tat end.
/n te case at -ar, te power to control te e"plo&ee%s conduct, i.e., te conduct o# private respondent, is a-sent.
/# it is true tat private respondent was an e"plo&ee o# petitioner, e would ave used e=uip"ent or tools supplied and owned
-& is e"plo&er. >owever, private respondent #ailed to allege and present proo# tat petitioner supplied i" e=uip"ent and
tools.
6e conduct o# private respondent was not su-1ect to te control and supervision o# petitioner or an& o# its personnel. Private
respondent i"sel# decided ow e would render electrical services to custo"ers.
Private respondent was #ree to o##er is services to oter stores along 'anaue, (ue)on *it&. /# private respondent was an
e"plo&ee o# petitioner, it was untin!a-le #or petitioner to allow private respondent to render electrical services to tree oter
stores selling auto"o-ile spare parts and accessories wo were its co"petitors.
/t is clear tat petitioner did not ave te power to control private respondent wit respect to te "eans and "etods -& wic
is wor! was to -e acco"plised.
?astl&, private respondent allowed petitioner to collect service #ees #ro" is custo"ers. >e received said #ees on a wee!l&
-asis. 6is arrange"ent, al-eit peculiar, does not prove te e5istence o# an e"plo&er,e"plo&ee relationsip.