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G.R. No. 153511, July 18, 2012
- This labor case for illegal dismissal involves a pianist employed to perform in the restaurant
of a hotel.- August 9, 1999: Realuyo, whose stage name was Joey R. Roa, filed a complaint for alleged
unfair labor practice,constructive illegal dismissal, and the underpayment/nonpayment of his premium pay
for holidays, separationpay, service incentive leave pay, and 13

month pay. He prayed for attorney’s fees, moral damages of

P100,000.00 and exemplary damages for P100,000.00- Roa averred that he had worked as a

at the Legend Hotel’s Tanglaw Restaurant from September 1992

with an initial rate of P400.00/night; and that it had increased to P750.00/night. During his employment,
he couldnot choose the time of performance, which had been fixed from 7:00PM to 10:00pm for three to
six times a week.- July 9, 1999: the management had notified him that as a cost-cutting measure,
his services as a pianist would nolonger be required effective July 30, 1999.- In its defense, petitioner
the existence of an employer-employee relationship with Roa, insisting that he
had been only a talent engaged to provide live music at Legend Hotel’s Madison Coffee Shop for three
on two days each week; and stated that the economic crisis that had hit the country constrained
management todispense with his services.- December 29,1999: the Labor Arbiter (LA) dismissed
the complaint for lack of merit upon finding that the partieshad no employer-employee relationship,
because Roa was receiving
talent fee and not salary
, which wasreinforced by the fact that Roa received his talent fee nightly, unlike the regular employees of
the hotel who arepaid monthly.-
NLRC affirmed the LA’s decision on May 31, 2001.
- CA set aside the decision of the NLRC, saying CA failed to take into cons
ideration that in Roa’s line of work, hewas supervised and controlled by the hotel’s restaurant manager
who at certain times would require him to
perform only tagalong songs or music, or wear barong tagalong to conform with the Filipinana motif of the
placeand the time of his performance is fixed. As to the status of Roa, he is considered a regular
employee of the hotelsince his job was
in furtherance of the restaurant business of the hotel
. Granting that Roa was initially acontractual employee, by the sheer length of service he had rendered
for the company, he had been convertedinto a regular employee.- CA held that the dismissal was due
to retrenchment in order to avoid or minimize business losses, which isrecognized by law under Art. 283
of the Labor Code.
- WON there was employer-
employee relationship between the two, and if so,- WON Roa was validly terminated
YES. Employer-employee relationship existed between the parties.
Roa was undeniably employed as a pianist of the restaurant. The hotel wielded the power of
selection atthe time it entered into the service contract dated Sept. 1, 1992 with Roa. The hotel could not
seek refugebehind the service contract entered into with Roa. It is the law that defines and governs an
employmentrelationship, whose terms are not restricted to those fixed in the written contract, for other
factors, like thenature of the work the employee has been called upon to perform, are also considered.
The law affords protection to an employee, and does not countenance any attempt to subvert its spirit
andintent. Any stipulation in writing can be ignored when the employer utilizes the stipulation to deprive
theemployee of his security of tenure
. The inequality that characterizes employer-employee relationshipgenerally tips the scales in
favor of the employer, such that the employee is often scarcelyprovided real and better options.
The argument that Roa was receiving talent fee and not salary is baseless. There is no denying that
theremuneration denominated as talent fees was fixed on the basis of his talent, skill, and the quality of
music he played during the hours of his performance. Roa’s remuneration, albeit denominated as talent
fees, was still considered as included in the term wage in the sense and context of the Labor
Code,regardless of how petitioner chose to designate the remuneration, as per Article 97(f) of the Labor
The power of the employer to control the work of the employee is considered the
most significantdeterminant of the existence of an employer-employee relationship. This is the so-called
control test
,and is premised on whether the person for whom the services are performed reserves the right to
controlboth the end achieved and the manner and means used to achieve that end.