G.R. No. 192084 ; September 14, 2011
JOSE MEL BERNARTE, Petitioner, vs. PHILIPPINE BASKETBALL ASSOCIATION (PBA), JOSE EMMANUEL M. EALA, and PERRY MARTINEZ, Respondents.

FACTS

Petitioner Jose Mel Bernarte was a basketball referee for the PBA. He signed retainer contracts on a year-to-year basis. During the term of Commissioner Jose Emmanuel M. Eala, changes were made, and Bernarte was not made to sign a contract for the first conference of the All-Filipino Cup in 2003, signing only a one-and-a-half-month contract for the second conference. On January 15, 2004, he received a letter from the PBA Office of the Commissioner advising that his contract would not be renewed due to unsatisfactory performance, which he believed was due to his refusal to fix a game. Bernarte filed a complaint for illegal dismissal. The Labor Arbiter ruled in his favor, declaring him an employee and his dismissal illegal, ordering reinstatement and payment of backwages, damages, and attorney’s fees. The National Labor Relations Commission (NLRC) affirmed this decision. Respondents filed a petition for certiorari with the Court of Appeals, which set aside the NLRC decision, holding that Bernarte was an independent contractor and not an employee, and dismissed the complaint.

ISSUE

The main issue is whether petitioner Jose Mel Bernarte is an employee of respondents, which determines if he was illegally dismissed. A procedural issue is also raised: whether the Labor Arbiter’s decision became final and executory due to respondents’ alleged failure to appeal within the reglementary period.

RULING

The Supreme Court denied the petition, affirming the Court of Appeals’ ruling.
On the procedural issue, the Court held that the Labor Arbiter’s decision did not become final and executory. Petitioner claimed constructive service of the decision via registered mail, but failed to present conclusive proof that the postmaster’s notices were actually received by respondents. Under Section 10, Rule 13 of the Rules of Court, constructive service by registered mail is complete after five days from the date the addressee received the first notice from the postmaster. The presumption of regularity of official duty does not apply; the party relying on constructive service must prove the notice was sent to and received by the addressee. Petitioner’s evidence, a Postmaster’s Certification stating notices were issued, was insufficient as it did not show how, when, and to whom delivery and receipt were made.
On the substantive issue, the Court ruled that petitioner is an independent contractor, not an employee. The determination of an employer-employee relationship hinges on the “control test” whether the employer controls both the end achieved and the manner and means used to achieve that end. The Court found that the PBA did not exercise control over the means and methods by which petitioner performed his work as a referee. His duties of officiating games, blowing the whistle, and making calls required professional discretion and skill independent of the PBA’s control. The retainer contracts did not establish an employer-employee relationship but rather a contractual relationship for specific services. The repeated hiring did not make him a regular employee by operation of law, as the relationship remained that of an independent contractor. Consequently, there was no illegal dismissal as there was no employer-employee relationship to terminate.