G.R. No. 121605 - PAZ MARTIN JO AND CESAR JO, VS. NATIONAL LABOR RELATIONS COMMISSION AND PETER MEJILA.D E C I S I O N - Supreme Court E-Library

Ruling

Accordingly, Atty. Macaraya directed petitioners counsel, Atty. Prudencio Abragan, to thresh out the problem. During the mediation meeting held at Atty. Abragans office a new twist was added. Despite the assurance that he was not being driven out as caretaker-barber, private respondent demanded payment for several thousand pesos as his separation pay and other monetary benefits. In order to give the parties enough time to cool off, Atty. Abragan set another conference but private respondent did not appear in such meeting anymore. Meanwhile, private respondent continued reporting for work at the barbershop. But, on January 2, 1993, he turned over the duplicate keys of the shop to the cashier and took away all his belongings therefrom. On January 8, 1993, he began working as a regular barber at the newly opened Goldilocks Barbershop also in Iligan City. On January 12, 1993, private respondent filed a complaint [2] for illegal dismissal with prayer for payment of separation pay, other monetary benefits, attorneys fees and damages. Significantly, the complaint did not seek reinstatement as a positive relief. In a Decision dated June 15, 1993, the Labor Arbiter found that private respondent was an employee of petitioners, and that private respondent was not dismissed but had left his job voluntarily because of his misunderstanding with his co-worker. [3] The Labor Arbiter dismissed the complaint, but ordered petitioners to pay private respondent his 13th month pay and attorneys fees. Both parties appealed to the NLRC. In a Decision dated November 21, 1994, it set aside the labor arbiters judgment. The NLRC sustained the labor arbiters finding as to the existence of employer-employee relationship between petitioners and private respondent, but it ruled that private respondent was illegally dismissed. Hence, the petitioners were ordered to reinstate private respondent and pay the latters backwages, 13th month pay, separation pay and attorneys fees, thus: "For failure of respondents to observe due process before dismissing the complainant, We rule and hold that he was illegally terminated. Consequently, he should be reinstated and paid his backwages starting from January 1, 1993 up to the time of his reinstatement and payment of separation pay, should reinstatement not be feasible on account of a strained employer-employee relationship. As complainants income was mixed, (commission and caretaker), he becomes entitled to 13th month pay only in his capacity as caretaker at the last rate of pay given to him. With respect to separation pay, even workers paid on commission are given separation pay as they are considered employees of the company. Complainant should be adjudged entitled to separation pay reckoned from 1970 up to the time he was dismissed on December 31, 1992 at one-half month pay of his earning as a barber; and as a caretaker the same should be reckoned from 1977 up to December 31, 1992. As complainant has been assisted by counsel not