FIRST ISSUE: COMPLAINANT IS A REGULAR EMPLOYEE OF THE RESPONDENTS

RESTAURANT BUSINESS
A domestic servant or a domestic worker is defined as a person engaged in
domestic work performed in a household or the immediate members of the family
or the occupants of the house within an employment relationship as defined under
Section 4 of RA 10361. Domestic work is characterized with personal service
towards the immediate members of the household and does not include occasional
or sporadic domestic service.
On the other hand, Article 97 of the Labor Code defines an employee as an
individual who is made to suffer work and is employed by an employer acting
directly or indirectly in his interest in relation to an employee. An employee is one
who is engaged in the services of another; who performs services for another; who
works for salary or wages. His work is subject to the control of the employer not
only as to the result but also to the means of doing it.
From the above definitions it is quite clear that Mr. Sombe qualifies as an employee
rather than a domestic servant. As even if he performs driving services personally
to Kathy and Suzuki Sumo, he was hired originally as a restaurant driver who deliver
certain foods and groceries to the restaurant. It is also important to note that one
cannot be included as a domestic servant if the service was only given occasionally
or sporadically which is illustrated in the present case.
Moreover, to strengthen the argument that Mr. Sombe qualifies as employee it is
important to establish an employer-employee relationship, the elements to the fourfold test must be present, namely:
(a) Selection and engagement of the employee
(b) Payment of wages
(c) Power of dismissal
(d) Employers power to control employee with respect to the means and
methods by which work is to be accomplished.
Among said elements the most important is the employers power to control for
absent such power of control with respect to the means and methods of
accomplishing his work, then there would be no employer-employee relationship.
Applying said provisions in the present case at hand, it can be said that Enrique
Sombe is a regular employee of Kathy and Suzuki Sumos restaurant business. For
the first element, Mr. Sombe was hired and his services were engaged by the Sumos
as a driver to the restaurant. For the second element, Mr. Sombe was paid with
wages from the Sumos which was P350 daily despite it being below the mandated
wage of P353 daily. For the third element, Kathy and Suzuki Sumo had the power of
dismissal over Enrique Sombe as shown when Kathy Sumo told Mr. Sombe to not
report for work anymore after the delay of fetching her from Lapu-Lapu City going to

Mandaue City. The most important element as well is present in this case. Despite
lending his services to Kathy and Suzuki Sumo by driving and fetching them, he was
originally hired as a driver of the restaurant business the Sumos own and his job
was to deliver food stuff and groceries to the restaurant.
SECOND ISSUE: MR. SOMBES ENTITLEMENT TO HIS MONEY CLAIMS FOR WAGE
DIFFERENTIALS, OVERTIME PAY AND 13TH MONTH PAY
Article 86 of the Labor Code provides that every employee shall be paid a night shift
differential of not less than 10% of his regular wage for each hour of work
performed between 10oclock in the evening and six oclock in the morning.
Article 87 provides that work may be performed beyond 8 hours a day provided that
employee is paid for overtime work an additional compensation equivalent to his
regular wage plus at least 25% thereof.
Labor Advisory No. 12 provides the employees who are covered which include rankand-file employees in the private sector regardless of their position, designation, or
employment status, and irrespective of the method by which their wages are paid,
provided that they have worked for at least one month during the calendar year.
From the above enumerations of provisions of laws on labor standards, it is to be
learned that being a laborer entitles you to different money claims recognizing the
hardships and efforts of being an employee to an employer.
Hence, in the present case, since Enrique Sombe is a regular employee then he is
entitled to all the money claims he is asking for.