COCA- COLA BOTTLERS (Eric Montinola [manager] vs DR CLIMACO, GR 146881, FEB 5, 2007

FACTS

Dr. Climaco was a medical doctor who was hired by Coca-cola by virtue of Retainer Agreement. That the Agreement
shall only be for a period of 1 year (Jan 1, 1988-Dec31,1988); that said term notwithstanding, either party may terminate
the contract upon giving a 30-day written notice to the other; that in consideration of the fee, the doctor agrees to
perfom the duties and obligations; that the doctor shall be directly responsible to the employee concerned and their
dependents for any injury inflicted on, harm done against or damage caused upon the employee of the company or their
dependents during the course of his examination, treatment or consultation, if such injury or harm was commited
through professional negligence or incompetence; that the doctor spend 2 hours a day in the company clinic and that
such hours be devoted to workshifts with most number of employees; that the doctor shall be on call at all times during
other workshifts to attend emergency cases; xxx that no ee-er rel shall exsit between company and the doctor while the
contract is in effect and in case of its termination, the doctor shall be entitled only to such retainer fee as may be due to
him at the time of termination.

The Retainer Agreement wc began on Jan 1, 1988 was renewed annually. The last one expired on Dec. 31, 1993. Despite
the non-renewal of the agreement, Dr Climaco continued to perform his functions as company doctor to coca-cola, until
he received a letter from petitioner –concluding their retainership agreement effective 30d from the receipt thereof.

As early as Sep 1992, Climaco was already making inquiries as to his status with the company. He wrote letter to Dr. Sy
[acting President of the committee on membership], in response, Dr Sy said that the respondent should be considered a
regular part-time physician, having served the company continuously for four years. He also said that the respondent
must receive all the benefits and privileges of an ee under Art 157(b) of LC. However, petitioner company did not take
action.

Climaco made another inquiry to DOLE, who replied: it believes that there is an existing ee-er rel. based on the Retainer
Agreement and Comprehensive Medical Plan, and the application of the four-fold test.

An inquiry was likewise made to SSS, who thereafter informed Climaco that his services partake of the nature of work of
a regular company doctor and that he was therefore, subject to social security coverage.

Climaco then inquired from management of Coca-Cola whether it was agreeable to recognize him as a regular employee.
The management refused to do so.

While the case was pending before the LA, Climaco received a letter from company, concluding their retainership
agreement, effective 30d from the receipt thereof. This prompted respondent to file complaint for illegal dismissal
against petitioner.

LA : found petitioner company lacked the power of control over respondent’s performance of his duties. Thus, dismissed
the complaint.

CA: there was ee-er relationship between Coca Cola and Climaco. Applying the 4-fold test: 1) the power to hire ee, 2) the
payment of wages, 3) the power of dismissal, 4) the employer’s power to control the employee with respect to the
means and methods by wc the work is to be accomplished [“control test” (the most important)].

That when the Retainer Agreement is read together with Comprehensive Medical Plan, which was made an integral part
of the retainer agreements, coupled with the actual services rendered by the petitioner, would show that all the
elements of the above test are present.
ISSUE: won there is ee-er rel?

RULING: No.

1) On the power to control –

 Court found that the company lacked control over the performance of Climaco. The Labor Arbiter reasoned that
the Comprehensive Medical Plan, wc contains the respondent’s objectives, duties, and obligations, does not tell
the respondent “how to conduct his physical examination, how to immunize, or how to diagnose and treat his
patients, employees of the company, in each case”

 In Neri v NLRC, In the case of petitioner Neri, it is admitted that FEBTC issued a job description which detailed
her functions as a radio/telex operator. However, a cursory reading of the job description shows that what was
sought to be controlled by FEBTC was actually the end result of the task, e.g., that the daily incoming and
outgoing telegraphic transfer of funds received and relayed by her, respectively, tallies with that of the register.
The guidelines were laid down merely to ensure that the desired end result was achieved. It did not, however,
tell Neri how the radio/telex machine should be operated.

Likewise in this case, the Comprehensive Medical Plan only served as a guideline so as to ensure that the end
result was achieved, but did not control the means and methods by wc the respondent performed his assigned
tasks.

 The LA also correctly found that the provision on the Retainer Agreement that the respondent was ON CALL
during emergency cases did not make him a regular ee. He explained: “the allegation of complainant that since
he is on call at anytime of the day and night makes him a regular employee is off-tangent. Complainant does not
dispute the fact that outside of the two (2) hours that he is required to be at respondent company's premises,
he is not at all further required to just sit around in the premises and wait for an emergency to occur so as to
enable him from using such hours for his own beneDt and advantage. In fact, complainant maintains his own
private clinic attending to his private practice in the city, where he services his patients, bills them accordingly —
and if it is an employee of respondent company who is attended to by him for special treatment that needs
hospitalization or operation, this is subject to a special billing. More often than not, an employee is required to
stay in the employer's workplace or proximately close thereto that he cannot utilize his time effectively and
gainfully for his own purpose. Such is not the prevailing situation here.”

The on call for emergency cases do not amount to such control, but are only necessary consequences of the
Retainership Agreement

2) On the power to dismiss –

 The Court also notes that the Retainership Agreement granted to both parties the power to terminate their
relationship upon giving a 30-day notice. Hence, petitioner company did not wield the sole power of dismissal or
termination.

Considering that there exists no ee-er rel between the parties, the termination of the Retainership Agreement does not
constitute illegal dismissal.