Tongko Vs Manulife January 25 2011 MR

Tongko vs. Manufacturers Life Insurance Co. Inc.
January 25, 2011 Motion for Reconsideration

FACTS
Motion for Reconsideration to set aside the June 29, 2010 Resolution that
reversed the decision of the Supreme Court in November 7, 2008.
In his MR, Tongko reiterates the arguments he raised in his petition and various
other submissions.
o For 19 years, he performed administrative functions and exercised
supervisory authority over employees and agents of Manulife, in addition
to his insurance agent functions.
o He was designated as a Unit Manager, Branch Manager and Regional
Sales Manager.
o He was not only an insurance agent of Manulife but it was an employee as
well.
HELD: Court finds no basis or error to merit the reconsideration of its June 29, 2010
Resolution.
RATIO
I.
LABOR LAW CONTROL = EMPLOYMENT RELATIONSHIP
Control over the performance of the task of one providing service both with
respect to the means and manner, and the results of the service is the primary
element in determining whether an employment relationship exists.
Petitioner failed to show that control Manulife exercised over him was the control
required to exist in an employer employee relationship.
Manulifes carried out only the characteristic of the relationship between an
insurance company and its agents, as defined by the Insurance Code and by the
law of agency under the Civil Code.
Petitioner asserts in his Motion that Manulifes labor law control over him was
demonstrated
o When it set the objectives and sales targets regarding production,
recruitment and training programs
o When it prescribed the Code of Conduct for Agents and the Manulife
Financial Code of Conduct to govern its activities.
No merit in this contention.
There are built-in elements of control specific to an insurance agency, which do
not amount to the elements of control that characterize an employment
relationship governed by the Labor Code.
o The Insurance Code provides definite parameters in the way an agent
negotiates for the sale of the companys insurance products, his collection
activities and his delivery of the insurance contract or policy.
The Civil Code defines an agent as a person who binds himself to do something
in behalf of another, with consent or authority of the latter.
These are controls aimed only at specific results in undertaking an insurance
agency, and are parameters set by law in defining an insurance agency and the
attendant duties and responsibilities an insurance agent must observe and
undertake.
Manulifes instructions regarding the objectives and sales targets, in connection
with the training and engagement of other agents, are among the directives that
the principal ay impose on the agent to achieve the assigned tasks. They are
targeted results that Manulife wishes to attain through its agents.
The duties that Tongko enumerated in his Motion are not supported by evidence
and therefore, deserve scant consideration. Even assuming their existence,
however, mostly pertain to the duties of an insurance agent such as remitting
insurance fees to Manulife, delivering policies to the insured, and after-sale
services.
That Manulife exercise the power to assign and remove agents under Tongkos
supervision is in keeping with its role as principal in an agency relationship.
Tongko also questions Manulifes act of investing him with different titles and
positions in the course of their relationship. He also consideres it an unjust and
inequitable situation that he would be unrewarded for the years he spent as a
unit manager, branch manager and regional sales manager.
Based on the evidence on record, Tongkos occupation was to sell Manulifes
insurance policies and products until the termination of the Career Agents
Agreement. The evidence also shows that through the years, Manulife permitted
him to exercise guiding authority over other agents. Under this scheme, an
arrangement that pervades the insurance industry, Tongko in effect became a
lead agent. His designation also changed from unit manager to branch manager
then to regional sales manager.
o These arrangements, and the titles and positions the petitioner was
invested with, did not change his status from insurance agent that he had
always been in.
II.
NO RESULTING INEQUITY
Records show that Tongko was very amply paid for his services as an insurance
agent, who also shared in the commissions of the other agents under his
guidance.
All these he earned as an insurance agent as he failed to prove that he earned
these sums as an employee.
What would be unjust is an award of back wages and separation pay amounts
that are not due him because he was never an employee.
Court cannot and should not fill in the evidentiary gaps in a partys case.
III.
EARNINGS WERE COMMISSIONS
That his earnings were agents commissions arising from his work as an
insurance agent is a matter that Tongko cannot deny, as these are the
declarations and representations he stated in his income tax returns through the
years. It would be doubly unjust to the government if he be allowed at this late
point to turn around and successfully claim that he was merely an employee after
he declared himself as an independent self-employed insurance agent with the
privilege of deducting business expense.
IV.
THE DISSENTS SOLUTION
The dissent proposes that Tongko should be considered as part employee
(manager) and part insurance agent; hence, the original decision should be
modified to pertain only to the termination of his employment as a manager and
not as an insurance agent. This is legally unrealistic, as it goes against the basic
principles of judicial operation.
o There is no legal basis, whether statutory or jurisprudential, for the part
employee part insurance agent status under an essentially principal agent
contractual relation,
o If the Dissent intends to establish one, this is highly objectionable for this
would amount to judicial legislation. A legal relationship, be it one of
employment or one based on a contract other than employment, exists as
a matter of law pursuant to the facts, incidents and legal consequences of
the relationship; it cannot exist devoid of these legally defined underlying
facts and legal consequences unless the law itself creates the relationship
an act that is beyond the authority of the Court to do.
DOMINANT relationship in this case is agency and no other.
V.
DISSENTS CITED CASES & THE POSITION OF THE MAJORITY

Social Security System vs. Court of Appeals
DISSENTING OPINION
MAJORITY POSITION
In this case, Court was faced with Dissent cited this case to support its
the conflicting claims of the worker allegation that labor laws and
and the proprietor on the issue of jurisprudence should be applied in
whether an employer-employee this case, to the exclusion of other
relationship exists. Carreon and the laws such as the Civil Code or
Tobacco Corporation entered into an Insurance Code, even when the
agreement whereby Carreon would latter are also applicable.
allegedly
purchase
and
sell
products. Court used the four fold The legal relationships involved
test to determine the existence of (employees
or
independent
employer-employee relationship.
contractors) are both labor law
concepts and make no reference to
the Civil or Insurance Code.
Algon Engineering Construction Corporation vs. NLRC

DISSENTING OPINION
MAJORITY POSITION
Court did not consider the Civil Code The cited case lacks complexity of
provisions on lease when it ruled the of the present case; Civil Code
upon the existence of an employer- provisions on lease do not prescribe
employee relationship. Court held that lessees exercise control over
that no particular evidence is their lessors in the way that the
required to prove the existence of an Insurance Code and the Civil Code
employer-employee relationship. All provide that insurance companies
that is necessary is to show that the and principals exercised control over
employer is capable of exercising their agents.
control over the employee. In labor
disputes, it suffices that there be a
causal connection between the
claim asserted and the employeremployee relations. In this case,
there is no doubt the petitioner
exercised control over Espinosas
conduct, as shown by the fact that,
rather than address the loss of
batteries as a breach of the
purported contract of lease, a
memorandum instead emphasized
the rules and regulations and the
fact that Espinosa was on duty at
the time of the said loss.
Equitable Banking Corporation vs. NLRC
DISSENTING OPINION
MAJORITY POSITION
Court still employed the control test Whether a lawyer-client relationship
to determine the existence of an or an employment relationship
employer-employee relationship.
governs the legal relation between
parties. This case is inapplicable as
it
does
not
illustrate
the
predominance of labor laws and
jurisprudence over other laws, in
general, and the Insurance Code
and Civil Code, in particular. It
merely weighed the evidence in
favor of an employment relationship
over that of a lawyer-client
relationship.
Present
case
is
attended by totally different factual
considerations as the petitioner had

not offered any evidence of the
companys control in the means and
manner of the performance of his
work.
Lazaro vs. Social Security Commission
DISSENTING OPINION
MAJORITY POSITION
In this case, Laudato was a sales This case is not applicable to the
supervisor who claimed that the present case which is attended by
company failed to report her and totally
different
factual
remit her contributions as an considerations as petitioner had not
employee, to SSS. Lazaro claimed offered any evidence of the
that Laudato was only a sales agent companys control in the means and
earning on a commission basis, and manner of the performance of his
did not maintain definite hours of work.
work and therefore could not be
considered as an employee of Royal
Star Marketing. Court ruled that the
fact that Laudato was paid by
commission does not preclude the
establishment of an employeremployee relationship. Laudato
oversaw and supervised the sales
agents of the company, and thus
was subject to the control of
management as to how she
implements its policies and its end
results.
Abante vs. Lamadrid Bearing & Parts Corporation
DISSENTING OPINION
MAJORITY POSITION
In this case, despite the allegation Court finds it strange that the dissent
that the worker was a commission cites this case as a precedent, since
salesman, the Court still used the the Court held that an employeefour fold test to determine the employer relationship is notably
existence of an employer employee absent in this case as the
relationship.
complainant was a sales agent. This
case better supports the majoritys
position that a sales agent, who fails
to show control in the concept of
labor law, cannot be considered an
employee, even if the company
exercised control in the concept of a
sales agent.
Cases turn and are decided on the basis of their own unique facts; the ruling in
one case cannot simply be bodily lifted and applied to another, particularly when
notable differences exist.
Ruling in this case is not about which law has primacy over the other, but what
should be done to be able to reconcile these laws. Where the law makes it
mandatory for a company to exercise control over its agents, the complainant in
an illegal dismissal case cannot rely on these legally prescribed control devices
as indicators of employer-employee relationship.
OTHER POINTS RAISED IN JUSTICE VELASCOS DISSENTING OPINION
Manulife is part of a Canada based multinational financial company claiming to

be the largest insurance company in North America. On the other hand, Tongko
is but a single Filipino agent/manager of Manulife.
It is but just, it is but right that the Court interpret the relationship as one of
employment under labor laws and to uphold his constitutionally protected rights
as an employee, to security of tenure and an entitlement to monetary award
should such right be infringed. This right cannot be diminished by mere contract,
or however the parties choose to call their true working relationship.
Jurisprudence teaches that, given the doubt as to the applicable law in the
instant case, labor law shall govern.
If Tongko were indeed not an employee of Manulife, the company would not set
the means and methods to achieve such goal. As long as Tongko was able to
recruit the set number of agents, there would be no reason for Manulife to
terminate his services as an independent contractor. However, that is not the
case here. The letter of De Dios directed Tongko to clamor more actively his
peers and his agents to recruit other agents. It was not sufficient that Tongko, by
himself, recruit agents. This directive certainly shows that Manulife sought to
prescribe the means and methods to achieve its goals.
By limiting the area of responsibility of Tongko, this is akin to a transfer or
reassignment, an exercise of control by Manulife over Tongko that must
necessarily determine the existence of an employer-employee relationship.
Manulifes decision not to execute a management contract with petitioner was
well within its prerogative. However, this bare fact did not reduce the petitioner to
a mere lead agent. Other evidence was adduced to show other duties and
responsibilities.
o For one, De Dios addressed petitioner as sales manager in a letter.
While the Court allows the presentation of inconsistent defenses, Manulifes
argumentation would destroy its position that Tongko is not an employee.
Manulife essentially pointed out the facts that would show that it abided by the
requirements of the Labor Code on the dismissal of an employee, citing Article

282.
o Such requirements are only required of employers with regard to its
employees. Manulife had no reason to comply with this provision of law if
it did not consider Tongko as an employee. There is an implied admission.
Petitioners peculiar circumstances as unit manager, branch manager and
ultimately regional sales manager, with exclusivity feature of his engagement and
duties as such manager, indicate at the very least, a prima facie existence of an
employer employee relationship, following the control test.

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Tongko vs. Manufacturers Life Insurance Co. Inc.

January 25, 2011 Motion for Reconsideration

DISSENTS CITED CASES & THE POSITION OF THE MAJORITY

Algon Engineering Construction Corporation vs. NLRC

considerations as the petitioner had

OTHER POINTS RAISED IN JUSTICE VELASCOS DISSENTING OPINION

Manulife is part of a Canada based multinational financial company claiming to

requirements of the Labor Code on the dismissal of an employee, citing Article

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