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PEOPLE’S BROADCASTING (BOMBO RADYO PHILS., INC.), Petitioner, vs. THE SECRETARY OF THE DEPARTMENT OF LABOR AND EMPLOYMENT, THE REGIONAL DIRECTOR, DOLE REGION VII, and JANDELEON JUEZAN, Respondents. FACTS: The instant petition for certiorari under Rule 65 assails the decision and the resolution of the Court of Appeals. The petition traces its origins to a complaint filed by Jandeleon Juezan (respondent) against People’s Broadcasting Service, Inc. (Bombo Radyo Phils., Inc) (petitioner) for illegal deduction, non-payment of service incentive leave, 13th month pay, premium pay for holiday and rest day and illegal diminution of benefits, delayed payment of wages and non-coverage of SSS, PAG-IBIG and Philhealth (non-diminution of benefits in the amount allegedly 6K) before the Department of Labor and Employment (DOLE)Regional Office No. VII, Cebu City.2 On the basis of the complaint, the DOLE conducted a plant level inspection on 23 September 2003. Labor Inspector wrote under the heading “Findings/Recommendations” “nondiminution of benefits” and “Note: Respondent deny employer-employee relationship with the complainant- see Notice of Inspection results.” PETITIONER’S POSITION: Management representative informed that complainant is a drama talent hired on a per drama ” participation basis” hence no employer-employeeship [sic] existed between them. As proof of this, management presented photocopies of cash vouchers, billing statement, employments of specific undertaking (a contract between the talent director & the complainant), summary of billing of drama production etc. They (mgt.) has [sic] not control of the talent if he ventures into another contract w/ other broadcasting industries. RULING OF DOLE REGIONAL DIRECTOR: respondent is an employee of petitioner, and that the former is entitled to his money claims amounting toP203,726.30. MR denied; Appeal with the DOLE Secretary, dismissed the appeal on the ground that petitioner did not post a cash or surety bond and instead submitted a Deed of Assignment of Bank Deposit. APPEAL WITH THE CA: claiming that it was denied due process when the DOLE Secretary disregarded the evidence it presented and failed to give it the opportunity to refute the claims of respondent. Petitioner maintained that there is no employer-employee relationship had ever existed between it and respondent because it was the drama directors and producers who paid, supervised and disciplined respondent. It also added that the case was beyond the jurisdiction of the DOLE and should have been considered by the labor arbiter because respondent’s claim exceeded P5,000.00. CA denied.

WITH THE SC: petitioner argues that the National Labor Relations Commission (NLRC), and not the DOLE Secretary, has jurisdiction over respondent’s claim, in view of Articles 217 and 128 of the Labor Code. RESPONDENT’S POSITION: respondent posits that the Court of Appeals did not abuse its discretion. He invokes Republic Act No. 7730, which “removes the jurisdiction of the Secretary of Labor and Employment or his duly authorized representatives, from the effects of the restrictive provisions of Article 129 and 217 of the Labor Code, regarding the confinement of jurisdiction based on the amount of claims.”; and wrong mode of appeal. ISSUE: WON the Secretary of Labor have the power to determine the existence of an employer-employee relationship.

HELD: No To resolve this pivotal issue, one must look into the extent of the visitorial and enforcement power of the DOLE found in Article 128 (b) of the Labor Code, as amended by Republic Act 7730. It reads: Article 128 (b) Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases where the relationship of employeremployee still exists, the Secretary of Labor and Employment or his duly authorized representatives shall have the power to issue compliance orders to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection xxx The provision is quite explicit that the visitorial and enforcement power of the DOLE comes into play only “in cases when the relationship of employer-employee still exists.” Of course, a person’s entitlement to labor standard benefits under the labor laws presupposes the existence of employer-employee relationship in the first place.The clause signifies that the employer-employee relationship must have existed even before the emergence of the controversy. Necessarily, the DOLE’s power does not apply in two instances, namely: (a) where the employer-employee relationship has ceased; and (b) where no such relationship has ever existed. The first situation is categorically covered by Sec. 3, Rule 11 of the Rules on the Disposition of Labor Standards Cases15 issued by the DOLE Secretary. It reads: Rule II MONEY CLAIMS ARISING FROM COMPLAINT/ROUTINE INSPECTION

Sec. 3. Complaints where no employer-employee relationship actually exists. Where employer-employee relationship no longer exists by reason of the fact that it has already been severed, claims for payment of monetary benefits fall within the exclusive and original jurisdiction of the labor arbiters. Accordingly, if on the face of the complaint, it can be ascertained that employer-employee relationship no longer exists, the case, whether accompanied by an allegation of illegal dismissal, shall immediately be endorsed by the Regional Director to the appropriate branch of the National Labor Relations Commission (NLRC). Clearly the law accords a prerogative to the NLRC over the claim when the employer-employee relationship has terminated or such relationship has not arisen at all. The reason is obvious. In the second situation especially, the existence of an employer-employee relationship is a matter which is not easily determinable from an ordinary inspection, necessarily so, because the elements of such a relationship are not verifiable from a mere ocular examination. The determination of which should be comprehensive and intensive and therefore best left to the specialized quasi-judicial body that is the NLRC. It can be assumed that the DOLE in the exercise of its visitorial and enforcement power somehow has to make a determination of the existence of an employer-employee relationship. Such prerogatival determination, however, cannot be coextensive with the visitorial and enforcement power itself. Indeed, such determination is merely preliminary, incidental and collateral to the DOLE’s primary function of enforcing labor standards provisions. The determination of the existence of employer-employee relationship is still primarily lodged with the NLRC. Thus, before the DOLE may exercise its powers under Article 128, two important questions must be resolved: (1) Does the employer-employee relationship still exist, or alternatively, was there ever an employer-employee relationship to speak of; and (2) Are there violations of the Labor Code or of any labor law? A mere assertion of absence of employer-employee relationship does not deprive the DOLE of jurisdiction over the claim under Article 128 of the Labor Code. At least a prima facie showing of such absence of relationship, as in this case, is needed to preclude the DOLE from the exercise of its power. Without a doubt, petitioner, since the inception of this case had been consistent in maintaining that respondent is not its employee. Certainly, a preliminary determination, based on the evidence offered, and noted by the Labor Inspector during the inspection as well as submitted during the proceedings before the Regional Director puts in genuine doubt the existence of employer-employee relationship. From that point on, the

prudent recourse on the part of the DOLE should have been to refer respondent to the NLRC for the proper dispensation of his claims.Furthermore, as discussed earlier, even the evidence relied on by the Regional Director in his order are mere self-serving declarations of respondent, and hence cannot be relied upon as proof of employer-employee relationship. Petition GRANTED. Other Issues (Just in case it will be asked, mahaba2 ung case) 

Aside from lack of jurisdiction, there is another cogent reason to to set aside the Regional Director’s 27 February 2004 Order. A careful study of the case reveals that the said Order, which found respondent as an employee of petitioner and directed the payment of respondent’s money claims, is not supported by substantial evidence, and was even made in disregard of the evidence on record.  Even if the labor inspector had noted petitioner’s manifestation and documents in the Notice of Inspection Results, it is clear that he did not give much credence to said evidence, as he did not find the need to investigate the matter further. The labor inspector could have exerted a bit more effort and looked into petitioner’s payroll, for example, or its roll of employees, or interviewed other employees in the premises.  The Court further examined the records and discovered to its dismay that even the Regional Director turned a blind eye to the evidence presented by petitioner and relied instead on the self-serving claims of respondent. REPONDENT’S CLAIM IN HIS POSITION PAPER: hired by petitioner in September 1996 as a radio talent/spinner, working from 8:00 am until 5 p.m., six days a week, on a gross rate of P60.00 per script, earning an average of P15,0000.00 per month, payable on a semi-monthly basis xxx In support of his position paper, respondent attached a photocopy of an identification card purportedly issued by petitioner, bearing respondent’s picture and name with the designation “Spinner”; at the back of the I.D., the following is written: ” This certifies that the card holder is a duly Authorized MEDIA Representative of BOMBO RADYO PHILIPPINES … Certificates were also submitted by respondent to support his claim. EXISTENCE OF EMPLOYER-EMPLOYEE RELATIONSHIP: Furthermore, respondent’s pieces of evidence—the identification card and the certification issued by petitioner’s Greman Solante— are not even determinative of an employer-employee relationship. The certification, issued upon the request of respondent, specifically stated that “MR. JANDELEON JUEZAN is a program employee of PEOPLE’S

BROADCASTING SERVICES, INC. (DYMF- Bombo Radyo Cebu),” it is not therefore “crystal clear that complainant is a station employee rather than a program employee hence entitled to all the benefits appurtenant thereto,”26 as found by the DOLE Regional Director. Respondent should be bound by his own evidence. Moreover, the classification as to whether one is a “station employee” and “program employee,” as lifted from Policy Instruction No. 40,27 dividing the workers in the broadcast industry into only two groups is not binding on this Court, especially when the classification has no basis either in law or in fact.28 Even the identification card purportedly issued by petitioner is not proof of employer-employee relationship since it only identified respondent as an “Authorized Representative of Bombo Radyo…,” and not as an employee. SUBSTANTIAL EVIDENCE: It has long been established that in administrative and quasi-judicial proceedings, substantial evidence is sufficient as a basis for judgment on the existence of employer-employee relationship. Substantial evidence, which is the quantum of proof required in labor cases, is “that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.”  In the instant case, save for respondent’s self-serving allegations and self-defeating evidence, there is no substantial basis to warrant the Regional Director’s finding that respondent is an employee of petitioner. RE APPEAL BOND: The purpose of an appeal bond is to ensure, during the period of appeal, against any occurrence that would defeat or diminish recovery by the aggrieved employees under the judgment if subsequently affirmed.40 The Deed of Assignment in the instant case, like a cash or surety bond, serves the same purpose. First, the Deed of Assignment constitutes not just a partial amount, but rather the entire award in the appealed Order. Second, it is clear from the Deed of Assignment that the entire amount is under the full control of the bank, and not of petitioner, and is in fact payable to the DOLE Regional Office, to be withdrawn by the same office after it had issued a writ of execution. For all intents and purposes, the Deed of Assignment in tandem with the Letter Agreement and Cash Voucher is as good as cash. Third, the Court finds that the execution of the Deed of Assignment, the Letter Agreement and the Cash Voucher were made in good faith, and constituted clear manifestation of petitioner’s willingness to pay the judgment amount. MODE OF APPEAL: it is settled, as a general proposition, that the availability of an appeal does not foreclose recourse to the extraordinary remedies, such as certiorari and prohibition, where appeal is not adequate or equally beneficial, speedy and sufficient xxx This Court has even recognized that a recourse to certiorari is proper not only where there is a clear deprivation of petitioner’s fundamental right to due

process, but so also where other special circumstances warrant immediate and more direct action. After all, this Court has previously ruled that the extraordinary writ of certiorari will lie if it is satisfactorily1avvphiestablished that the tribunal had acted capriciously and whimsically in total disregard of evidence material to or even decisive of the controversy CASE DIGEST: ZIALCITA V. PHILIPPINE AIRLINES, INC. (Case No. RO4-3-3398-76; February 20, 1977) FACTS: Zialcita is a stewardess of PAL. She was fired from work because she had gotten married. PAL argued and cited its policy that stewardesses must be single. The policy also states that subsequent marriage of a stewardess shall automatically terminate employment. Zialcita anchored on Article 136 of the Labor Code. PAL sought refuge from Article 132. Article 132 provides, "Article 132. Facilities for women. The Secretary of Labor and Employment shall establish standards that will ensure the safety and health of women employees. In appropriate cases, he shall, by regulations, require any employer to: To determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the like." Article 136 provides, "Article 136. Stipulation against marriage. It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage." ISSUE: Was Zialcita's termination proper?

HELD: The termination was improper. First of all, during the time Zialcita was terminated, no regulation had yet been issued by the Secretary of Labor to implement Article 132. Second, even assuming that the Secretary of Labor had already issued such a regulation and to the effect that stewardesses should remain single, such would be in violation of Article 136 of the Labor Code. Article 136's protection of women is broader and more powerful than the regulation provided under Article 132. Star Paper Corporation vs. Simbol 487 SCRA 228 FACTS: Petitioner was the employer of the respondents. Under the policy of Star Paper the employees are: 1. New applicants will not be allowed to be hired if in case he/she has a relative, up to the 3rd degree of relationship, already employed by the company. 2. In case of two of our employees (singles, one male and another female) developed a friendly relationship during the course of their employment and then decided to get married, one of them should resign to preserve the policy stated above. Respondents Comia and Simbol both got married to their fellow employees. Estrella on the other hand had a relationship with a co-employee resulting to her pregnancy on the belief that such was separated. The respondents allege that they were forced to resign as a result of the implementation of the said assailed company policy. The Labor Arbiter and the NLRC ruled in favor of petitioner. The decision was appealed to the Court of Appeals which reversed the decision. ISSUE: Whether the prohibition to marry in the contract of employment is valid HELD: It is significant to note that in the case at bar, respondents were hired after they were found fit for the job, but were asked to resign when they married a co-employee. Petitioners failed to show how the marriage of Simbol, then a Sheeting Machine Operator, to Alma Dayrit, then an employee of the Repacking Section, could be detrimental to its business

operations. Neither did petitioners explain how this detriment will happen in the case of Wilfreda Comia, then a Production Helper in the Selecting Department, who married Howard Comia, then a helper in the cuttermachine. The policy is premised on the mere fear that employees married to each other will be less efficient. If we uphold the questioned rule without valid justification, the employer can create policies based on an unproven presumption of a perceived danger at the expense of an employee’s right to security of tenure. Petitioners contend that their policy will apply only when one employee marries a co-employee, but they are free to marry persons other than coemployees. The questioned policy may not facially violate Article 136 of the Labor Code but it creates a disproportionate effect and under the disparate impact theory, the only way it could pass judicial scrutiny is a showing that it is reasonable despite the discriminatory, albeit disproportionate, effect. The failure of petitioners to prove a legitimate business concern in imposing the questioned policy cannot prejudice the employee’s right to be free from arbitrary discrimination based upon stereotypes of married persons working together in one company. Lastly, the absence of a statute expressly prohibiting marital discrimination in our jurisdiction cannot benefit the petitioners. The protection given to labor in our jurisdiction is vast and extensive that we cannot prudently draw inferences from the legislature’s silence that married persons are not protected under our Constitution and declare valid a policy based on a prejudice or stereotype. Thus, for failure of petitioners to present undisputed proof of a reasonable business necessity, we rule that the questioned policy is an invalid exercise of management prerogative. Corollary, the issue as to whether respondents Simbol and Comia resigned voluntarily has become moot and academic. In the case of Estrella, the petitioner failed to adduce proof to justify her dismissal. Hence, the Court ruled that it was illegal. Petition was denied.