THIRD DIVISION

[G.R. No. 116542. July 30, 1996.]

THE HONGKONG AND SHANGHAI BANKING CORPORATION, Petitioner, v. NATIONAL LABOR RELATION

COMMISSION and EMMANUEL A. MENESES, Respondents.

DECISION

PANGANIBAN, J.:

What species of dishonesty would constitute a ground for termination? Is a provision in the employees’ handbook
stating that "any form of dishonesty" shall constitute "serious offense(s) calling for termination" valid and binding upon
the respondent NLRC?

These questions are answered by this Court in resolving the instant petition for certiorari which seeks a partial
reversal of the Decision 1 of the respondent National Labor Relations Commission 2 promulgated on April 19, 1994
insofar as it directs reinstatement of private respondent to his former position.

The Antecedent Facts

The undisputed facts, as summarized in the Labor Arbiter’s decision, are as follows:jgc:chanrobles.com.ph

"Complainant is a regular rank and file employee of Hongkong and Shanghai Banking Corp. Ltd., with office address
at Royal Match Building, Ayala Avenue, Makati, Metro Manila. He started working with the said bank in July 1986 as
a clerk until his dismissal on February 17, 1993.

It appears that on February 3, 1993, complainant called the bank to inform the latter that he had an upset stomach
and would not be able to report for work. His superior, however, requested him to report for work because the
department he was then in was undermanned but complainant insisted that it was impossible for him to report for
work, hence, he was allowed to go on sick leave on that day.

Later on that day, the bank called complainant at his given Tel. No. 521-17-54 in order to obtain vital information from
him, but the bank was informed by the answering party at the phone number given by complainant that complainant
had left early that morning.

When complainant reported for work the following day, February 4, 1993, he was asked by his superior to explain
why he was not at his residence on February 3, 1993 when he was on sick leave because of an upset stomach.

Complainant explained that he indeed suffered from an upset stomach and that he even consulted Dr. Arthur Logos
at 4:00 o’clock in the afternoon of the same day and the reason why he could not be reached by telephone was
because he had not been staying at his given residence for over a week.

On February 4, 1993 the bank called up Dr. Logos to verify the truth of complainant’s statement but the doctor denied
that he examined or attended to complainant on February 3, 1993 and the last time complainant consulted him was in
December 1992. For this reason, the bank directed complainant to explain his acts of dishonesty because allegedly
he was not honest in telling the bank that he had an upset stomach on February 3, 1993, and that he consulted Dr.
Logos on that day.

In his written statement, by way of answer to the memorandum, complainant insisted that he had diarrhea on
February 3, 1993 and attached a certification from his aunt where he stayed from the evening of February 2, 1993
and the whole day of February 3, 1993 as well as a certification from his uncle named Andre R. Lozano attesting to
the conversation between complainant and Melvin Morales regarding the whereabouts of complainant on that day.
Complainant further admitted that his statement about his not staying at his house for one week and his consulting a
doctor was incorrect, but that the said statement was not given with malicious intention or deceit or meant to commit
fraud against the bank, its operations, customers and employees. The said statement according to him was impulsive
reaction as a result of his emotional stress he had been going through because of his marital problems. He pleaded
for leniency such that instead of termination, he be given a lighter penalty.

However, on February 16, 1993, the bank came out with a memorandum from the Vice-President, Human Resources
Department terminating his services effective March 16, 1993 pursuant to Article 13, Section VI of the Collective
Bargaining Agreement between the union of the rank and file employees of the bank and the company and the bank’s
Code of Conduct.

The following day, February 17, 1993, the bank sent complainant another memorandum directing him to settle his
outstanding loan amounting to PH P179,834.00, net of a month’s salary the bank was paying him in lieu of notice not
later than June 16, 1993. The import of the said letter was while the effectivity of the said termination is March 16,
1993, the company opted to pay him in lieu of the notice from February 17, 1993 up to March 16, 1993 his pay
without having to report for work."cralaw virtua1aw library

Noting that the bank’s Employee Handbook made "any form of dishonesty" a cause for termination, the labor arbiter 3
ruled said ground to be overly broad, and stated that" (f)or us to agree that any form of dishonesty committed by an
employee of the bank is a ground for dismissal, is to say the least stretching the import of the aforecited rule too far."
The arbiter instead held that the offenses of dishonesty contemplated by the aforementioned rule which would
warrant termination of services are those involving deceit and resulting in loss of trust and confidence. The arbiter
further found that the private respondent’s proffered excuse, assuming it to be false, did not result in any damage to
the bank, and therefore the bank had no reason to lose its trust and confidence in the private respondent on account
of such manner of dishonesty. Additionally, the labor arbiter did not find in the record any proof that private
respondent was not really suffering from diarrhea as claimed.

Thus, in her decision dated August 13, 1993, the arbiter declared the termination illegal and ordered petitioner bank
to reinstate private respondent to his former position without loss of seniority rights and with backwages.

On appeal, the respondent Commission sustained the arbiter’s findings and ruled that —

". . . For while there is a semblance of truth to the charge of respondent (herein petitioner bank) that complainant
(private respondent) had been dishonest as to his whereabouts on February 3, 1993, such act of dishonesty cannot
be considered so serious (as) to warrant complainant’s outright dismissal. The dishonesty that complainant had
committed cannot be considered depraved. It was a simple kind of dishonesty that was committed not in connection
with his job. . ."cralaw virtua1aw library

Brushing aside petitioner bank’s argument about strained relations, the NLRC reasoned that the private respondent’s
falsehoods were not of such nature as to have actually caused animosity between the private respondent and the
petitioner bank, and even if there was any such strained relations,." . . it was not of so serious a nature or of such a
degree as to justify his termination . . .." Thus, the NLRC ordered petitioner "to reinstate complainant to his former
position but without backwages", considering that private respondent was not entirely faultless" since "he committed a
certain degree of dishonesty in lying."cralaw virtua1aw library

Now before this Court, petitioner argues 4 that the dismissal is reasonable and valid "pursuant to its Employee
Handbook, specifically, Appendix A thereto which provides for serious offenses calling for termination . . ." .

The Issue

Petitioner raises the following reason to warrant this review:jgc:chanrobles.com.ph

"Public respondent acted with grave abuse of discretion when it unilaterally curtailed and restricted petitioner’s
inherent and inalienable prerogative to set and impose reasonable disciplinary rules and regulations."cralaw
virtua1aw library

In short, the issue, as summed up by the Solicitor General, is whether or not the NLRC committed grave abuse of
discretion in ruling that private respondent’s act of making a false statement as to the real reason for his absence on
February 3, 1993 did not constitute such dishonesty as would warrant his termination from service.

The Court’s Ruling

The petition is bereft of merit.

Petitioner insists that private respondent should be dismissed in accordance with rules contained in its employees’
handbook titled Working Together, Appendix A 5 of which reads as follows:jgc:chanrobles.com.ph

"Appendix A

Serious Offenses

Calling For

Termination — Any form of dishonesty, like but not limited to the following:chanrob1es virtual 1aw library

— fraud

— making false or artificial entries in the books or records of the Bank

— failing to turn over money entrusted by a client for the Bank within a specified time

— theft of bank property

— using company funds/assets for any unofficial purpose.

— Any violation of the Bank’s Code of Conduct which has penal consequences under relevant local laws.

— Deliberately inflicting or attempting to inflict bodily injury upon a co-employee on Bank premises, or in case it is
committed elsewhere, for reasons which are work-related.

— Sabotage or causing damage to work or equipment of the Bank, or any underhanded interference in Bank
operations.

— Any other serious offense analogous to the above."cralaw virtua1aw library

While the foregoing text makes "any form of dishonesty . . ." a "serious offense calling for termination," such general
statement must however be understood in the context of the enumeration of offenses, all of which are directly related
to the function of the petitioner as a banking institution. It is unarguable that private respondent’s false information
concerning his whereabouts on February 3, 1993 is not a fraud, nor a false entry in the books of the bank; neither is it
a failure to turn over clients’ funds, or theft or use of company assets, or anything "analogous" as to constitute a
serious offense meriting the extreme penalty of dismissal.

Like petitioner bank, this Court will not countenance nor tolerate ANY form of dishonesty. But at the same time, we
cannot permit the imposition of the maximum penalty authorized by our labor laws for JUST ANY act of dishonesty, in
the same manner that death, which is now reinstated as the supreme sanction under the penal laws of our country, is
not to be imposed for just any killing. The penalty imposed must be commensurate to the depravity of the
malfeasance, violation or crime being punished. A grave injustice is committed in the name of justice when the
penalty imposed is grossly disproportionate to the wrong committed.

In the context of the instant case, dismissal is the most severe penalty an employer can impose on an employee. It
goes without saying that care must be taken, and due regard given to an employee’s circumstances, in the
application of such punishment. Moreover, private respondent’s acts of dishonesty — his first offense in his seven
years of employment, as noted by the respondent NLRC — did not show deceit nor constitute fraud and did not result
in actual prejudice to petitioner. Certainly, such peremptory dismissal is far too harsh, too severe, excessive and
unreasonable under the circumstances.

Besides, by ordering private respondent’s reinstatement without granting backwages, the NLRC effectively penalized
him by disallowing compensation for the three years counted from the time he received notice of his dismissal on
February 23, 1993.

Under Art. 282 of the Labor Code, "an employer may terminate an employment for any of the following
causes:chanrob1es virtual 1aw library

(a) Series misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in
connection with his work;

(b) Gross and habitual neglect by the employee of his duties;

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized
representative;

(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member
of his family or his duly authorized representative; and

(e) Other causes analogous to the foregoing."cralaw virtua1aw library

None of the above apply in the instant case. To be lawful, the cause for termination must be a serious and grave
malfeasance to justify the deprivation of a means of livelihood. This is merely in keeping with the spirit of our
Constitution and laws which lean over backwards in favor of the working class, and mandate that every doubt must
be resolved in their favor. 6

Petitioner further contends that the NLRC arbitrarily imposed its value judgment and standard on petitioner’s
disciplinary rules, thereby unilaterally restricting the Bank’s power and prerogative to discipline its employees
according to reasonable rules and regulations. We do not agree. Precisely, the employer’s prerogative and power to
discipline and terminate an employee’s services may not be exercised in an arbitrary or despotic manner as to erode
or render meaningless the constitutional guarantees of security of tenure and due process. 7 Our labor laws, both
substantive and procedural, require strict compliance before an employee may be dismissed. 8 Clearly, it is the
NLRC’s right and duty to review employers’ exercise of their prerogative to dismiss so as to prevent abuse and
arbitrariness.

Petitioner points to GTE Directories Corporation v. Sanchez 9 as authority for its contention that, since the
disciplinary rule cited in its Handbook has not been declared illegal or improper by competent authority, "the
employees ignore or disobey them at their peril." This is absurd. As pointed out by the Solicitor General: 10

". . ., the cited GTE case is not applicable to the present case because of an entirely different factual setting. This
case merely involves a simple reportorial requirement which the workers had deliberately and unjustifiably ignored.
Besides, the management imposed the penalty of dismissal only after the workers failed to comply with (the)
requirement for the sixth time and after the workers were already meted out the less severe penalty of suspension.

In the case at bar, it would have been different if private respondent had also been suspended first and despite that,
he still continued to defy the disciplinary rule. Meneses, indeed, was a "first offender" which is consistent at this point
to his being human, who occasionally commits mistakes just like anybody else."cralaw virtua1aw library

Indeed, upholding petitioner’s argument (that the NLRC cannot review petitioner’s disciplinary rules) would mean
upsetting the entire labor arbitral machinery, for it would result in depriving the labor arbiter and the NLRC of their
jurisdiction to determine the justness of a cause for dismissal as granted by Arts. 217 and 218 of the Labor Code.

This petition is an unwarranted attack against workers’ right to security of tenure. It must be, as it is hereby,
demolished at first sight.

WHEREFORE, the instant petition is hereby DISMISSED, there being no showing of grave abuse of discretion on the
part of the respondent NLRC.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.

G.R. No. 155731 - LOLITA LOPEZ v. BODEGA CITY, ET AL.

THIRD DIVISION

[G.R. NO. 155731 : September 3, 2007]

LOLITA LOPEZ, Petitioner, v. BODEGA CITY (Video-Disco Kitchen of the

Philippines) and/or ANDRES C. TORRES-YAP, Respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court assailing the July 18, 2002 Decision1 of the Court of Appeals (CA) in CA-G.R. SP
No. 66861, dismissing the Petition for Certiorari filed before it and affirming the
Decision of the National Labor Relations Commission (NLRC) in NLRC-NCR Case No. 00-
03-01729-95; and its Resolution dated October 16, 2002, 2 denying petitioner's Motion
for Reconsideration. The NLRC Decision set aside the Decision of the Labor Arbiter
finding that Lolita Lopez (petitioner) was illegally dismissed by Bodega City and/or
Andres C. Torres-Yap (respondents).

Respondent Bodega City (Bodega City) is a corporation duly registered and existing
under and by virtue of the laws of the Republic of the Philippines, while respondent
Andres C. Torres-Yap (Yap) is its owner/ manager. Petitioner was the "lady keeper" of
Bodega City tasked with manning its ladies' comfort room.

In a letter signed by Yap dated February 10, 1995, petitioner was made to explain why
the concessionaire agreement between her and respondents should not be terminated
or suspended in view of an incident that happened on February 3, 1995, wherein
petitioner was seen to have acted in a hostile manner against a lady customer of
Bodega City who informed the management that she saw petitioner sleeping while on
duty.

In a subsequent letter dated February 25, 1995, Yap informed petitioner that because
of the incident that happened on February 3, 1995, respondents had decided to
terminate the concessionaire agreement between them.

On March 1, 1995, petitioner filed with the Arbitration Branch of the NLRC, National
Capital Region, Quezon City, a complaint for illegal dismissal against respondents
contending that she was dismissed from her employment without cause and due
process.
In their answer, respondents contended that no employer-employee relationship ever
existed between them and petitioner; that the latter's services rendered within the
premises of Bodega City was by virtue of a concessionaire agreement she entered into
with respondents.

The complaint was dismissed by the Labor Arbiter for lack of merit. However, on
appeal, the NLRC set aside the order of dismissal and remanded the case for further
proceedings. Upon remand, the case was assigned to a different Labor Arbiter.
Thereafter, hearings were conducted and the parties were required to submit
memoranda and other supporting documents.

On December 28, 1999, the Labor Arbiter rendered judgment finding that petitioner
was an employee of respondents and that the latter illegally dismissed her. 3

Respondents filed an appeal with the NLRC. On March 22, 2001, the NLRC issued a
Resolution, the dispositive portion of which reads as follows:

WHEREFORE, premises duly considered, the Decision appealed from is hereby ordered
SET ASIDE and VACATED, and in its stead, a new one entered DISMISSING the above-
entitled case for lack of merit.4

Petitioner filed a motion for reconsideration of the above-quoted NLRC Resolution, but
the NLRC denied the same.

Aggrieved, petitioner filed a Petition for Certiorari with the CA. On July 18, 2002, the CA
promulgated the presently assailed Decision dismissing her special civil action
for certiorari. Petitioner moved for reconsideration but her motion was denied.

Hence, herein petition based on the following grounds:

1. WITH DUE RESPECT, PUBLIC RESPONDENT COURT OF APPEALS COMMITTED GRAVE

ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN
RULING THAT THE NATIONAL LABOR RELATIONS COMMISSION DID NOT COMMIT
GRAVE ABUSE OF DISCRETION IN REVERSING THE DECISION OF THE LABOR ARBITER
FINDING PETITIONER TO HAVE BEEN ILLEGALLY DISMISSED BY PRIVATE
RESPONDENTS.

2. WITH DUE RESPECT, PUBLIC RESPONDENT COURT OF APPEALS COMMITTED GRAVE

ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN
RULING THAT PETITIONER WAS NOT AN EMPLOYEE OF PRIVATE RESPONDENTS. 5

Petitioner contends that it was wrong for the CA to conclude that even if she did not
sign the document evidencing the concessionaire agreement, she impliedly accepted
and thus bound herself to the terms and conditions contained in the said agreement
when she continued to perform the task which was allegedly specified therein for a
considerable length of time. Petitioner claims that the concessionaire agreement was
only offered to her during her tenth year of service and after she organized a union and
filed a complaint against respondents. Prior to all these, petitioner asserts that her job
as a "lady keeper" was a task assigned to her as an employee of respondents.
Petitioner further argues that her receipt of a special allowance from respondents is a
clear evidence that she was an employee of the latter, as the amount she received was
equivalent to the minimum wage at that time.

Petitioner also contends that her identification card clearly shows that she was not a
concessionaire but an employee of respondents; that if respondents really intended the
ID card issued to her to be used simply for having access to the premises of Bodega
City, then respondents could have clearly indicated such intent on the said ID card.

Moreover, petitioner submits that the fact that she was required to follow rules and
regulations prescribing appropriate conduct while she was in the premises of Bodega
City is clear evidence of the existence of an employer-employee relationship between
her and petitioners.

On the other hand, respondents contend that the present petition was filed for the sole
purpose of delaying the proceedings of the case; the grounds relied upon in the instant
petition are matters that have been exhaustively discussed by the NLRC and the CA;
the present petition raises questions of fact which are not proper in a Petition for
Review on Certiorari under Rule 45 of the Rules of Court; the respective decisions of
the NLRC and the CA are based on evidence presented by both parties; petitioner's
compliance with the terms and conditions of the proposed concessionaire contract for a
period of three years is evidence of her implied acceptance of such proposal; petitioner
failed to present evidence to prove her allegation that the subject concessionaire
agreement was only proposed to her in her 10 th year of employment with respondent
company and after she organized a union and filed a labor complaint against
respondents; petitioner failed to present competent documentary and testimonial
evidence to prove her contention that she was an employee of respondents since 1985.

The main issue to be resolved in the present case is whether or not petitioner is an
employee of respondents.

The issue of whether or not an employer-employee relationship exists in a given case is

essentially a question of fact.6

While it is a settled rule that only errors of law are generally reviewed by this Court in
Petitions for Review on Certiorari of CA decisions,7 there are well-recognized exceptions
to this rule, as in this case, when the factual findings of the NLRC as affirmed by the CA
contradict those of the Labor Arbiter.8 In that event, it is this Court's task, in the
exercise of its equity jurisdiction, to re-evaluate and review the factual issues by
looking into the records of the case and re-examining the questioned findings. 9

It is a basic rule of evidence that each party must prove his affirmative allegation. 10 If
he claims a right granted by law, he must prove his claim by competent evidence,
relying on the strength of his own evidence and not upon the weakness of that of his
opponent.11

The test for determining on whom the burden of proof lies is found in the result of an
inquiry as to which party would be successful if no evidence of such matters were
given.12
In an illegal dismissal case, the onus probandi rests on the employer to prove that its
dismissal of an employee was for a valid cause. 13 However, before a case for illegal
dismissal can prosper, an employer-employee relationship must first be established. 14

In filing a complaint before the Labor Arbiter for illegal dismissal based on the premise
that she was an employee of respondent, it is incumbent upon petitioner to prove the
employee-employer relationship by substantial evidence. 15

The NLRC and the CA found that petitioner failed to discharge this burden, and the
Court finds no cogent reason to depart from their findings.

The Court applies the four-fold test expounded in Abante v. Lamadrid Bearing and Parts
Corp.,16 to wit:

To ascertain the existence of an employer-employee relationship, jurisprudence has

invariably applied the four-fold test, namely: (1) the manner of selection and
engagement; (2) the payment of wages; (3) the presence or absence of the power of
dismissal; and (4) the presence or absence of the power of control. Of these four, the
last one is the most important. The so-called "control test" is commonly regarded as
the most crucial and determinative indicator of the presence or absence of an
employer-employee relationship. Under the control test, an employer-employee
relationship exists where the person for whom the services areperformed reserves the
right to control not only the end achieved, but also the manner and means to be used
in reaching that end.17

To prove the element of payment of wages, petitioner presented a petty cash voucher
showing that she received an allowance for five (5) days. 18 The CA did not err when it
held that a solitary petty cash voucher did not prove that petitioner had been receiving
salary from respondents or that she had been respondents' employee for 10 years.

Indeed, if petitioner was really an employee of respondents for that length of time, she
should have been able to present salary vouchers or pay slips and not just a single
petty cash voucher. The Court agrees with respondents that petitioner could have easily
shown other pieces of evidence such as a contract of employment, SSS or Medicare
forms, or certificates of withholding tax on compensation income; or she could have
presented witnesses to prove her contention that she was an employee of respondents.
Petitioner failed to do so.

Anent the element of control, petitioner's contention that she was an employee of
respondents because she was subject to their control does not hold water.

Petitioner failed to cite a single instance to prove that she was subject to the control of
respondents insofar as the manner in which she should perform her job as a "lady
keeper" was concerned.

It is true that petitioner was required to follow rules and regulations prescribing
appropriate conduct while within the premises of Bodega City. However, this was
imposed upon petitioner as part of the terms and conditions in the concessionaire
agreement embodied in a 1992 letter of Yap addressed to petitioner, to wit:
 January 6, 1992

Dear Ms. Lolita Lopez,

The new owners of Bodega City, 1121 Food Service Corporation offers to your goodself
the concessionaire/contract to provide independently, customer comfort services to
assist users of the ladies comfort room of the Club to further enhance its business,
under the following terms and conditions:

1. You will provide at your own expense, all toilet supplies, useful for the purpose, such
as toilet papers, soap, hair pins, safety pins and other related items or things which in
your opinion is beneficial to the services you will undertake;

2. For the entire duration of this concessionaire contract, and during the Club's
operating hours, you shall maintain the cleanliness of the ladies comfort room.
Provided, that general cleanliness, sanitation and physical maintenance of said comfort
rooms shall be undertaken by the owners of Bodega City;

3. You shall at all times ensure satisfaction and good services in the discharge of your
undertaking. More importantly, you shall always observe utmost courtesy in dealing
with the persons/individuals using said comfort room and shall refrain from doing acts
that may adversely affect the goodwill and business standing of Bodega City;

4. All remunerations, tips, donations given to you by individuals/persons utilizing said

comfort rooms and/or guests of Bodega City shall be waived by the latter to your
benefit provided however, that if concessionaire receives tips or donations per day in an
amount exceeding 200% the prevailing minimum wage, then, she shall remit fifty
percent (50%) of said amount to Bodega City by way of royalty or concession fees;

5. This contract shall be for a period of one year and shall be automatically renewed on
a yearly basis unless notice of termination is given thirty (30) days prior to expiration.
Any violation of the terms and conditions of this contract shall be a ground for its
immediate revocation and/or termination.

6. It is hereby understood that no employer-employee relationship exists between

Bodega City and/or 1121 FoodService Corporation and your goodself, as you are an
independent contractor who has represented to us that you possess the necessary
qualification as such including manpower compliment, equipment, facilities, etc. and
that any person you may engage or employ to work with or assist you in the discharge
of your undertaking shall be solely your own employees and/or agents.

1121 FoodService Corporation Bodega City

By:
(Sgd.) ANDRES C. TORRES-YAP

Conforme:
_______________
LOLITA LOPEZ19

Petitioner does not dispute the existence of the letter; neither does she deny that
respondents offered her the subject concessionaire agreement. However, she contends
that she could not have entered into the said agreement with respondents because she
did not sign the document evidencing the same.

Settled is the rule that contracts are perfected by mere consent, upon the acceptance
by the offeree of the offer made by the offeror. 20 For a contract, to arise, the
acceptance must be made known to the offeror.21 Moreover, the acceptance of the thing
and the cause, which are to constitute a contract, may be express or implied as can be
inferred from the contemporaneous and subsequent acts of the contracting parties. 22 A
contract will be upheld as long as there is proof of consent, subject matter and cause; it
is generally obligatory in whatever form it may have been entered into. 23

In the present case, the Court finds no cogent reason to disregard the findings of both
the CA and the NLRC that while petitioner did not affix her signature to the document
evidencing the subject concessionaire agreement, the fact that she performed the tasks
indicated in the said agreement for a period of three years without any complaint or
question only goes to show that she has given her implied acceptance of or consent to
the said agreement.

Petitioner is likewise estopped from denying the existence of the subject concessionaire
agreement. She should not, after enjoying the benefits of the concessionaire agreement
with respondents, be allowed to later disown the same through her allegation that she
was an employee of the respondents when the said agreement was terminated by
reason of her violation of the terms and conditions thereof.

The principle of estoppel in pais applies wherein - - by one's acts, representations or

admissions, or silence when one ought to speak out - - intentionally or through culpable
negligence, induces another to believe certain facts to exist and to rightfully rely and
act on such belief, so as to be prejudiced if the former is permitted to deny the
existence of those facts.24

Moreover, petitioner failed to dispute the contents of the affidavit 25 as well as the
testimony26 of Felimon Habitan (Habitan), the concessionaire of the men's comfort room
of Bodega City, that he had personal knowledge of the fact that petitioner was the
concessionaire of the ladies' comfort room of Bodega City.

Petitioner also claims that the concessionaire agreement was offered to her only in her
10th year of service, after she organized a union and filed a complaint against
respondents. However, petitioner's claim remains to be an allegation which is not
supported by any evidence. It is a basic rule in evidence that each party must prove his
affirmative allegation,27 that mere allegation is not evidence.28

The Court is not persuaded by petitioner's contention that the Labor Arbiter was correct
in concluding that there existed an employer-employee relationship between
respondents and petitioner. A perusal of the Decision29 of the Labor Arbiter shows that
his only basis for arriving at such a conclusion are the bare assertions of petitioner and
the fact that the latter did not sign the letter of Yap containing the proposed
concessionaire agreement. However, as earlier discussed, this Court finds no error in
the findings of the NLRC and the CA that petitioner is deemed as having given her
consent to the said proposal when she continuously performed the tasks indicated
therein for a considerable length of time. For all intents and purposes, the
concessionaire agreement had been perfected.

Petitioner insists that her ID card is sufficient proof of her employment. In Domasig v.
National Labor Relations Commission,30 this Court held that the complainant's ID card
and the cash vouchers covering his salaries for the months indicated therein were
substantial evidence that he was an employee of respondents, especially in light of the
fact that the latter failed to deny said evidence. This is not the situation in the present
case. The only evidence presented by petitioner as proof of her alleged employment are
her ID card and one petty cash voucher for a five-day allowance which were disputed
by respondents.

As to the ID card, it is true that the words "EMPLOYEE'S NAME" appear printed below
petitioner's name.31 However, she failed to dispute respondents' evidence consisting of
Habitan's testimony,32 that he and the other "contractors" of Bodega City such as the
singers and band performers, were also issued the same ID cards for the purpose of
enabling them to enter the premises of Bodega City.

The Court quotes, with approval, the ruling of the CA on this matter, to wit:

Nor can petitioners identification card improve her cause any better. It is undisputed
that non-employees, such as Felimon Habitan, an admitted concessionaire, musicians,
singers and the like at Bodega City are also issued identification cards. Given this
premise, it appears clear to Us that petitioner's I.D. Card is incompetent proof of an
alleged employer-employee relationship between the herein parties. Viewed in the
context of this case, the card is at best a "passport" from management assuring the
holder thereof of his unmolested access to the premises of Bodega City. 33

With respect to the petty cash voucher, petitioner failed to refute respondent's claim
that it was not given to her for services rendered or on a regular basis, but simply
granted as financial assistance to help her temporarily meet her family's needs.

Hence, going back to the element of control, the concessionaire agreement merely
stated that petitioner shall maintain the cleanliness of the ladies' comfort room and
observe courtesy guidelines that would help her obtain the results they wanted to
achieve. There is nothing in the agreement which specifies the methods by which
petitioner should achieve these results. Respondents did not indicate the manner in
which she should go about in maintaining the cleanliness of the ladies' comfort room.
Neither did respondents determine the means and methods by which petitioner could
ensure the satisfaction of respondent company's customers. In other words, petitioner
was given a free hand as to how she would perform her job as a "lady keeper." In fact,
the last paragraph of the concessionaire agreement even allowed petitioner to engage
persons to work with or assist her in the discharge of her functions. 34

Moreover, petitioner was not subjected to definite hours or conditions of work. The fact
that she was expected to maintain the cleanliness of respondent company's ladies'
comfort room during Bodega City's operating hours does not indicate that her
performance of her job was subject to the control of respondents as to make her an
employee of the latter. Instead, the requirement that she had to render her services
while Bodega City was open for business was dictated simply by the very nature of her
undertaking, which was to give assistance to the users of the ladies' comfort room.

In Consulta v. Court of Appeals,35 this Court held:

It should, however, be obvious that not every form of control that the hiring party
reserves to himself over the conduct of the party hired in relation to the services
rendered may be accorded the effect of establishing an employer-employee relationship
between them in the legal or technical sense of the term. A line must be drawn
somewhere, if the recognized distinction between an employee and an individual
contractor is not to vanish altogether. Realistically, it would be a rare contract of
service that gives untrammeled freedom to the party hired and eschews any
intervention whatsoever in his performance of the engagement.

Logically, the line should be drawn between rules that merely serve as guidelines
towards the achievement of the mutually desired result without dictating the means or
methods to be employed in attaining it, and those that control or fix the methodology
and bind or restrict the party hired to the use of such means. The first, which aim only
to promote the result, create no employer-employee relationship unlike the second,
which address both the result and the means used to achieve it. 36

Lastly, the Court finds that the elements of selection and engagement as well as the
power of dismissal are not present in the instant case.

It has been established that there has been no employer-employee relationship

between respondents and petitioner. Their contractual relationship was governed by the
concessionaire agreement embodied in the 1992 letter. Thus, petitioner was not
dismissed by respondents. Instead, as shown by the letter of Yap to her dated February
15, 1995,37 their contractual relationship was terminated by reason of respondents'
termination of the subject concessionaire agreement, which was in accordance with the
provisions of the agreement in case of violation of its terms and conditions.

In fine, the CA did not err in dismissing the Petition for Certiorari filed before it by
petitioner.

WHEREFORE, the instant petition is DENIED. The assailed Decision and Resolution of
the Court of Appeals are AFFIRMED. Costs against petitioner.

SO ORDERED.

Ynares-Santiago, J., Chairperson, Chico-Nazario, Nachura, Reyes, JJ., concur.