[G.R. No. 192084 : September 14, 2011] JOSE MEL BERNARTE, ET!T!ONER, "S. #!L!!NE BAS$ETBALLASSO%!AT!ON &BA', JOSE EMMAN(EL M. EALA, AN) ERR*MART!NE+, RESON)ENTS. ) E % ! S ! O N %AR!O, J.:T,e %-.eThis is a petition for review[1] of the 17 December 2009 Decision[2] and 5 April 2010 Resoltion[!] of the "ort of Appeals in "A#$%R% &' (o% 105)0*% The "ort of Appeals set aside the decision of the (ational +abor Relations "ommission ,(+R"-.which affirmed the decision of the +abor Arbiter. and held that petitioner /ose 0el 1ernarte is an independent contractor. and not an emplo2ee of respondents 'hilippine 1as3etball Association ,'1A-. /ose 4mmanel 0% 4ala. and 'err2 0artine5% The "ort of Appeals denied the motion for reconsideration%T,e /-0t.The facts. as smmari5ed b2 the (+R" and 6oted b2 the "ort of Appeals. are as follows7"omplainants ,/ose 0el 1ernarte and Renato $evarra- aver that the2 were invited to 8oin the '1A as referees% Drin9 the leadership of "ommissioner 4milio 1ernardino. the2 were made to si9n contracts on a 2ear#to#2ear basis% Drin9 the term of "ommissioner 4ala. however. chan9es were made on the terms of their emplo2ment%"omplainant 1ernarte. for instance. was not made to si9n a contract drin9 the first conference of the All#:ilipino "p which was from :ebrar2 2!. 200! to /ne 200!% ;t was onl2 drin9 the second conference when he was made to si9n a one and a half month contract for the period /l2 1 to A9st 5. 200!%ed%[)];n her !1 0arch 2005 Decision.[5] the +abor Arbiter[*] declared petitioner an emplo2ee whose dismissal b2 respondents was ille9al% Accordin9l2. the +abor Arbiter ordered the reinstatement of petitioner and the pa2ment of bac3wa9es. moral and e>emplar2 dama9es and attorne2@s fees. to wit7A=4R4:emplar2 dama9es/ > > >(either do Ae a9ree with the (+R"@s affirmance of the +abor Arbiter@s conclsion that private respondents@ repeated hirin9 made them re9lar emplo2ees b2 operation of law%[11]T,e !..2e.The main isse in this case is whether petitioner is an emplo2ee of respondents. which in trn determines whether petitioner was ille9all2 dismissed%'etitioner raises the procedral isse of whether the +abor Arbiter@s decision has become final and e>ector2 for failre of respondents to appeal with the (+R" within the re9lementar2 period%T,e R24678 o3 t,e %o2rtThe petition is bereft of merit%The "ort shall first resolve the procedral isse posed b2 petitioner%'etitioner contends that the +abor Arbiter@s Decision of !1 0arch 2005 became final and e>ector2 for failre of respondents to appeal with the (+R" within the prescribed period% 'etitioner claims that the +abor Arbiter@s decision was constrctivel2 served on respondents as earl2 as A9st 2005 while respondents appealed the Arbiter@s decision onl2 on !1 0arch 200*. wa2 be2ond the re9lementar2 period to appeal% 'etitioner points ot that service of an nclaimed re9istered mail is deemed complete five da2s from the date of first notice of the post master% ;n this case three notices were issed b2 the post office. the last bein9 on 1 A9st 2005% The nclaimed re9istered mail was conse6entl2 retrned to sender% 'etitioner presents the 'ostmaster@s "ertification to prove constrctive service of the +abor Arbiter@s decision on respondents% The 'ostmaster certified7> > >That pon receipt of said re9istered mail matter. or re9istr2 in char9e. Cicente Asis. /r%. immediatel2 issed the first re9istr2 notice to claim on /l2 12. 2005 b2 the addressee% The second and third notices were issed on /l2 21 and A9st 1. 2005. respectivel2%That the sb8ect re9istered letter was retrned to the sender ,RT&- becase the addressee failed to claim it after or one month retention period elapsed% &aid re9istered letter was dispatched from this office to 0anila "'< ,RT&- nder bill G*. line 7. pa9e1. colmn 1. on &eptember E. 2005%[12]&ection 10. Rle 1! of the Rles of "ort provides7&4"% 10% "ompleteness of service% # 'ersonal service is complete pon actal deliver2% &ervice b2 ordinar2 mail is complete pon the e>piration of ten ,10- da2s 2after mailin9. nless the cort otherwise provides% &ervice b2 re9istered mail is complete pon actal receipt b2 the addressee. or after five ,5- da2s from the date he received the first notice of the postmaster. whichever date is earlier%The rle on service b2 re9istered mail contemplates two sitations7 ,1- actal service the completeness of which is determined pon receipt b2 the addressee of the re9istered mail? and ,2- constrctive service the completeness of which is determinedpon e>piration of five da2s from the date the addressee received the first notice of the postmaster%[1!];nsofar as constrctive service is concerned. there mst be conclsive proof that a first notice was dl2 sent b2 the postmaster to the addressee%[1)] (ot onl2 is it re6ired that notice of the re9istered mail be issed bt that it shold also be delivered to and received b2 the addressee%[15] (otabl2. the presmption that official dt2 has been re9larl2 performed is not applicable in this sitation% ;t is incmbent pon a part2 who relies on constrctive service to prove that the notice was sent to. and received b2. the addressee%[1*]The best evidence to prove that notice was sent wold be a certification from the postmaster. who shold certif2 not onl2 that the notice was issed or sent bt also as to how. when and to whom the deliver2 and receipt was made% The mailman ma2 also testif2 that the notice was actall2 delivered%[17];n this case. petitioner failed to present an2 concrete proof as to how. when and to whom the deliver2 and receipt of the three notices issed b2 the post office was made% There is no conclsive evidence showin9 that the post office notices were actall2 received b2 respondents. ne9atin9 petitioner@s claim of constrctive service of the +abor Arbiter@s decision on respondents% The 'ostmaster@s "ertification does not sfficientl2 prove that the three notices were delivered to and received b2 respondents? it onl2 indicates that the post office issed the three notices% &impl2 pt.the issance of the notices b2 the post office is not e6ivalent to deliver2 to and receipt b2 the addressee of the re9istered mail% Ths. there is no proof of completed constrctive service of the +abor Arbiter@s decision on respondents%At an2 rate. the (+R" declared the isse on the finalit2 of the +abor Arbiter@s decision moot as respondents@ appeal was considered in the interest of sbstantial 8stice% Ae a9ree with the (+R"% The ends of 8stice will be better served if we resolve the instant case on the merits rather than allowin9 the sbstantial isse of whether petitioner is an independent contractor or an emplo2ee lin9er and remain nsettled de to procedral technicalities%The e>istence of an emplo2er#emplo2ee relationship is ltimatel2 a 6estion of fact% As a 9eneral rle. factal isses are be2ond the province of this "ort% =owever. this rle admits of e>ceptions. one of which is where there are conflictin9 findin9s of factbetween the "ort of Appeals. on one hand. and the (+R" and +abor Arbiter. on theother. sch as in the present case%[1E]To determine the e>istence of an emplo2er#emplo2ee relationship. case law has consistentl2 applied the for#fold test. to wit7 ,a- the selection and en9a9ement of theemplo2ee? ,b- the pa2ment of wa9es? ,c- the power of dismissal? and ,d- the emplo2er@s power to control the emplo2ee on the means and methods b2 which the wor3 is accomplished% The so#called H0o7tro4 te.tH is the most important indicator ofthe presence or absence of an emplo2er#emplo2ee relationship%[19];n this case. '1A admits repeatedl2 en9a9in9 petitioner@s services. as shown in the retainer contracts% '1A pa2s petitioner a retainer fee. e>clsive of per diem or allowances. as stiplated in the retainer contract% '1A can terminate the retainer contract for petitioner@s violation of its terms and conditions%=owever. respondents ar9e that the all#important element of control is lac3in9 in this case. ma3in9 petitioner an independent contractor and not an emplo2ee of respondents%'etitioner contends otherwise% 'etitioner asserts that he is an emplo2ee of respondents since the latter e>ercise control over the performance of his wor3% 'etitioner cites the followin9 stiplations in the retainer contract which evidence control7 ,1- respondents classif2 or rate a referee? ,2- respondents re6ire referees to attend all bas3etball 9ames or9ani5ed or athori5ed b2 the '1A. at least one hor before the start of the first 9ame of each da2? ,!- respondents assi9n petitioner to officiate ball9ames. or to act as alternate referee or sbstitte? ,)- referee a9rees to observe and compl2 with all the re6irements of the '1A 9overnin9 the condct of the referees whether on or off the cort? ,5- referee a9rees ,a- to 3eep himself in 9oodph2sical. mental. and emotional condition drin9 the life of the contract? ,b- to 9ive alwa2s his best effort and service. and lo2alt2 to the '1A. and not to officiate as referee in an2 bas3etball 9ame otside of the '1A. withot written prior consent of the "ommissioner? ,c- alwa2s to condct himself on and off the cort accordin9 to the hi9hest standards of honest2 or moralit2? and ,*- imposition of varios sanctions for violation of the terms and conditions of the contract%The fore9oin9 stiplations hardl2 demonstrate control over the means and methods b2 which petitioner performs his wor3 as a referee officiatin9 a '1A bas3etball 9ame% The contractal stiplations do not pertain to. mch less dictate. how and when petitioner will blow the whistle and ma3e calls% ercises over its emplo2ee@s condctH on the other%Jonan asserts that the :ederation Hclosel2 spervisedH his performance at each soccer 9ame he officiated b2 9ivin9 him an assessor. discssin9 his performance. andcontrollin9 what clothes he wore while on the field and travelin9% 'ttin9 aside that the :ederation did not. for the most part. control what clothes he wore. the :ederation did not spervise Jonan. bt rather evalated his performance after matches% That the :ederation evalated Jonan as a referee does not mean that he wasan emplo2ee% There is no 6estion that parties retainin9 independent contractors ma28d9e the performance of those contractors to determine if the contractal relationship shold contine% > > >;t is ndispted that the :ederation did not control the wa2 Jonan refereed his 9ames% =e had fll discretion and athorit2. nder the +aws of the $ame. to call the 9ame as he saw fit% > > > ;n a similar vein. sb8ectin9 Jonan to 6alification standards and procedres li3e the :ederation@s re9istration and trainin9 re6irements does not create an emplo2erIemplo2ee relationship% > > >A position that re6ires special s3ills and independent 8d9ment wei9hts in favor of independent contractor stats% > > > Bns3illed wor3. on the other hand. s99ests an emplo2ment relationship% > > > =ere. it is ndispted that soccer refereein9. especiall2 at the professional and international level. re6ires Ha 9reat deal of s3ill and natral abilit2%H Jonan asserts that it was the :ederation@s trainin9 that made him a top referee. and that s99ests he was an emplo2ee% Tho9h sbstantial trainin9 4spports an emplo2ment inference. that inference is dlled si9nificantl2 or ne9ated when the ptative emplo2er@s activit2 is the reslt of a stattor2 re6irement. not the emplo2er@s choice% > > >;n "cInturff v. Battle #round Acade$% of !ran&lin.[2)] it was held that the mpire was not an a9ent of the Tennessee &econdar2 &chool Athletic Association ,T&&AA-. so the pla2er@s vicarios liabilit2 claim a9ainst the association shold be dismissed% ;n findin9 that the mpire is an independent contractor. the "ort of Appeals of Tennesse rled7 The T&&AA deals with mpires to achieve a reslt#niform rles for all baseball 9ames pla2ed between T&&AA member schools% The T&&AA does not spervise re9lar season 9ames% ;t does not tell an official how to condct the 9ame be2ond theframewor3 established b2 the rles% The T&&AA does not. in the vernaclar of the case law. control the means and method b2 which the mpires wor3%;n addition. the fact that '1A repeatedl2 hired petitioner does not b2 itself prove that petitioner is an emplo2ee of the former% :or a hired part2 to be considered an emplo2ee. the hirin9 part2 mst have control over the means and methods b2 which the hired part2 is to perform his wor3. which is absent in this case% The continos rehirin9 b2 '1A of petitioner simpl2 si9nifies the renewal of the contract between '1A and petitioner. and hi9hli9hts the satisfactor2 services rendered b2 petitioner warrantin9 sch contract renewal% "onversel2. if '1A decides to discontine petitioner@s services at the end of the term fi>ed in the contract. whether for nsatisfactor2 services. or violation of the terms and conditions of the contract. or forwhatever other reason. the same merel2 reslts in the non#renewal of the contract. as in the present case% The non#renewal of the contract between the parties does not constitte ille9al dismissal of petitioner b2 respondents%1#ERE/ORE. we )EN* the petition and A//!RM the assailed decision of the "ort of Appeals%SO OR)ERE)%5