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REPUBLIC OF THE PHILIPPINES CI+% - "

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. 111
R
TONY BRIAN HORN,
~ k ofy San Fernando, Pampanga
By : -r-+!r- .I*.-

Complainant,

- versus - NLRC Case No. RAB-111-03-14640-09

OPSEC INTERNATIONAL GROUP

INC., NORMAN HAYNES, MATILDE
HAYNES and HUNTER HAYNES,
Respondents.
X---------------------------------------------
X

RESPONDENTS' REPLY
.----------------------------------.
(On Complainant's Position Paper)

Respondents, by counsel, unto this Honorable Office, by way of Reply to

Complainant's Position Paper, respectfully state that the Position Paper for the
Complainant should not be given due course and consideration by this Honorable
Office, for it is entirely false, malicious and want of both legal and factual basis.

There is a COMPLETE ABSENCE o f Emplover-Employee

Relationship between HORN and anv of the respondents;
Hence, there is NO illeaal dismissal to speak of

In respondents' Position dated May 15, 2009, respondents have exhaustively

and thoroughly explained why this case should be outrightly dismissed for
being baseless and self-serving. Contrary to the allegations of Complainant
Tony Horn (HORN, for brevity) in his Position Paper dated May 18, 2009, at
the very onset of his engagement, it was clear to HORN that his services is
governed by a service agreement engaging him only as a consultant of Manila
Exploration Co. - Annex Ltd. (MECO) and never as an employee of any of the
named respondents.

2. In fact, the consultancy agreement between HORN and MECO is fully

substantiated and attested to by Mr. Bob Jordan, an investor of MECO who
had directly dealt, negotiated and engaged HORN as a consultant of MECO
way back in the 2nd quarter of 2007 AND NOT September 15, 2006 as being
claimed by Complainant. Notably, it is neither OPSEC nor any of the
respondents who had engaged HORN at the beginning, copy of the Affidavit of
Bob Jordan dated June 4,2009 executed in Houston, Texas, U.S.A. hereto marked
and attached as Annex 'A'.
 . rn-,". -

COMPLAINANT IS NOT ENTITLED

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1. Complainant claims for the payment of his overtime pay and holiday pay.
Sadly however, this claim is without basis.
-

2. Under the Labor Code, Overtime compensation is additional pay for service or
work rendered or performed in excess of eight hours a day of employees or
laborers in employment covered by the Eight-hour Labor Law (C.A. No. 444,
now Art. 87) and not exempted from its requirements. I t is computed by
multiplying the overtime hourly rate by the number of hours in excess of
eight'.

3. From the above premise alone, it is patent that complainant cannot be

entitled to his claim of overtime pay. As professed by him in page 1 of his
Position Paper dated May 18, 2009, "Complainant was on a four hour daily
work schedule x x x". Therefore, based on Complainant's very own declaration,
he should never be entitled to an overtime pay as entitlement of overtime pay
is understood to be any work in excess of eight hours within the twenty four
hour period.

4. Moreover, in the case of Global vs, Atienzaz, Our Supreme Court held that, "a
claim for overtime pay will not be granted for want of factual and legal basis."
This being said, a reading of complainant's Position Paper will reveal that his
claim for overtime pay is not attended by any factual or legal basis.
Complainant's declarations are mere general allegations and purely self-
serving. In fact, no evidence whatsoever was ever presented by the
complainant to prove that he actually rendered any overtime work a t any
time of his engagement with the respondents nor mentioned any particular
work on a holiday to which he should be entitled to the same.

5. Further, overtime pay under the Labor Code shall not be applicable to the
following:

a. Government employees;
b. Manaaerial emplovees and 0-fficers or members of the manaaerial
staff;
c. Domestic servants and persons in the personal service of another;
d. Non-agricultural field personnel if they regularly perform their duties
away from the principal or branch office or place of business of the
employer and whose actual hours of work in the field cannot be
determined with reasonable certainty.
 6. It is noteworthy that Complainant in his Position Paper dated May 18, 2009
claims that he was an alleged employee of the respondent company
occupying the position of an Administrative Officer. Assuming that this may
be true, his claim for this position as an Administrative Officer is
contradicting to his claim for overtime pay.

7. It is elementary under the Philippine Labor Code that managerial employees,

such as an Administrative Officer (as being claimed by the complainant to
which he is occupying] are not entitled to the benefits under Articles 83 to 96,
such as overtime pay, rest day or holiday pay. From this premise, complainant
is therefore not entitled to any overtime pay or holiday pay. Aside from the
absence of any factual or legal basis, he is also disqualified under the law to
avail of the same.

INCONSISTENCIES IN THE COMPLAINT

REFLECT ITS UNRELIABILITY

1. Significantly, HORN in his Complaint dated March 26, 2009 alleged that he
was an Office M a n a g e r of the respondents from September 15, 2006 to
October 13, 2008. Shortly thereafter, HORN Amended his Complaint on April
1, 2009 and claim instead that he was an Administration Employee.
However, on May 18, 2009, HORN submitted his Position Paper and asserted
this time that he was employed as an Administration Officer of the
respondent company.

2. I t is of note that a simple observation of these inconsistencies will reveal that

complainant himself was not even sure of his allegations. At most, his claim of
employment with OPSEC as early as September 15, 2006 is not only a lie but
one which is incredibly impossible. This is so because OPSEC has not even
started its operation on September 15,2006.

In his Position Papera, HORN also claims that that he was employed as an
Administration Employee on a four hour daily work schedule with a salary of
USD$I,Z00.00or an equivalent of at least Php58,000.00 more or less. This
statement is not only suspicious but disbelieving. Surely, the amount of
Php58,000.00 as a compensation to a four-hour work for a simple employee
is not only doubtful but definitely fantastic.

LABOR ARBITER HAS NO TURISDICTION 0 VER

CLAIMS FOR SSS, PHILHEALTH a n d PAC-IBIC

1. As to the issues of non-coverage on SSS, Philhealth and Pag-Ibig, this

Honorable Office has no jurisdiction over this subject matter in the same way
that captioned case should be dismissed considering that complainant is not
an employee of respondents.
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 I, BOB 5. dORP)M, of legal we, America@#and a resident of Houston,
Texas, U.S.A., after having been sworn to in accordance with law, hereby
depose and say:

1. That I arn an investor in NIIANIM EXPLORBTION CO. - ANNEX, LII'D.

(MECX1f and a f r i e d of Nomm H a p e s , who is one of the partners of
MEGO;
2. That on January 16, 2007, I arrived in the Philippines and met with the
partners and representatives of MECO;
3. That sometime in the 2nd quarter of 2007, in behalf of MECO, I had
direct talks with PASTOR TONY HORN regarding a Consultancy
Agreement between him and MECO;
4. That as far as I was informed by Pastor Iiorn, he was not employed,
either of OPSEC or m y other company or institution at the time of our
engagement with him;
5. That Pastor Tony Horn entered into an oral consultancy agreement with
MECO sometime in the 2ad quarter of 2007 with a clear understanding
that as a consultant, he was deemed as a n independent contractor and
shall be entitled to a reasonable fee upon the successfid campletion of a
project;
6. That the presence of Pastor Tony Horn in the premises of MECO from
March 2007 backward was not by reason of his enzployment with the
Haynes F d l y or OPSEC but was because of hrs religious calling;
7. That I am executing this Affidavit in support of whatever legal p q o s e it
may serve as well as to attest to the truth of the foregoing averments.

AFFIANT FURTHER SAYS NONE.

IN WITNESSWHEREOF, I have hereunto set my hand this y%, of

June, 2009 in Houston,Texas, U.S.A.

.I^rCC-*
SUBSCaBED AND SWORN e this* day of June, 2009.

KEVEN GARTER
@ Notary Pubfi
STATE OF TEXAS
NZP Comm. Ex@ Februatv 12,2013