= — i ate REPUBLIC OF THE PHILIPPINES laps Department of Labor and Employment 3b Se NATIONAL LABOR RELATIONS COMMISSION ne Regional Arbitration Branch No. III City of San Fernando, Pampanga TONY BRIAN HORN, Complainant, - versus - NLRC Case No, RAB-III-03-14640-09 OPSEC INTERNATIONAL GROUP INC, NORMAN HAYNES, MATILDE HAYNES and HUNTER HAYNES, Respondents. x RESPONDENTS’ POSITION PAPER Respondents, through their undersigned counsel, unto this Honorable Office, respectfully submit this Position Paper in support of their stand that captioned complaint - which is bereft of factual and legal bases - should be outrightly dismissed for lack of merit and of jurisdiction. ‘The Parties 1) Respondent OPSEC INTERNATIONAL GROUP INC. (herein referred to as OPSEC) is a corporation duly organized, existing and operating under and in accordance with law, with principal address at Unit 1116 City Land Shaw Tower Saint Francis Street corner Shaw Blvd., Mandaluyong City, and duly represented by Mr. Hunter Dean Haynes, copy of the Secretary's Certificate hereto marked and attached as Annex “1”. 2) Respondent NORMAN HAYNES is of legal age, American, married to Matilde Haynes with address at No. 35-A Sarita St. Diamond Subd., Balibago, Angeles City. Norman Haynes is neither a stockholder, a member of the board of directors nor an officer or even an employee of OPSEC. 3) Respondent MATILDE HAYNES is of legal age, Filipino, married to Norman Haynes with address at No. 35-A Sarita St. Diamond Subd., Balibago, Angeles City. Matilde Haynes is neither a stockholder, a member of the board of directors nor an officer or even an employee of OPSEC. 4) Respondent HUNTER HAYNES is of legal age, American, single with address c/o OPSEC INTERNATIONAL GROUP INC, Unit 1116 City Land Shaw Tower Saint Francis Street corner Shaw Bivd., Mandaluyong City. Hunter Haynes is one of the incorporator and member of the board of directors of OPSEC.STATEMENT OF FACTS The facts and circumstances as they hanspired 1. OPSEC is a domestic corporation engaged in the business of providing management, financial, human resource development and technical advice for companies, industrial and other kinds of enterprise. As appearing in its Amended Articles of Incorporation, its primary purpose is to act as a managing agent of persons, firms, associations, corporations, partnerships and other entities. As the principal purpose of its incorporation dictates, OPSEC’s foremost function is to provide certain services to entities to further the objectives and purposes of their business by acting as managing agents of other organizations by virtue of a management arrangement or understanding, copy of page 1 of OPSEC’s Amended Articles of Incorporation hereto marked and attached as Annex "2". 2. Pursuant to a management and business services agreement with MANILA EXPLORATION CO. - ANNEX, LTD. (MECO, for brevity), OPSEC undertook to provide its management services to the former. MECO isa limited partnership primarily organized to purchase real estate, secure leasehold rights or to enter into joint venture arrangements for the purpose of conducting exploratory drilling, electronic prospecting and excavatory search for the ultimate recovery of precious metals, and other valuables located upon, within or below privately owned and/or public lands. 3. In the course of its management arrangement with OPSEC and as an incident thereto, MECO usually assigns some of its independent consultants to OPSEC in order to facilitate immediate investment decisions and other management concerns, in behalf of MECO pursuant to OPSEC’s recommendation of potential investments and management strategy. There is a clear understanding, however, that such individual business consultants assigned to OPSEC are directly engaged or contracted by MECO, Engagement, Remuneration and Termination of their services are directly dealt and handled by MECO. 4. As far as OPSEC was informed, Complainant Tony Brian Horn (HORN, for brevity) was engaged as an Independent Consultant of MECO. There was no instance that he became an employee nor a consultant of OPSEC. His engagement, work assignment including his compensation, contractual arrangement and thereafter separation, was directly dealt by MECO and never by OPSEC. Much, the board of directors of OPSEC never approved of any kind of contract or engagement with Complainant. 1, On the basis of Complainants assignment to OPSEC, the following points will strengthen our position that HORN was not an employee of OPSEC: a. The power to terminate the consultancy agreement was exclusively and mutually vested between HORN and MECO. Either may terminate 2|Pagethe business arrangement at will, with or without cause, Copy of the Affidavit executed by Norman D. Haynes dated May 15, 2009 hereto marked and attached as Annex ‘3’; b. The arrangement for compensation and investment share was exclusively agreed upon between HORN and MECO. Notably, OPSEC was not a privy to this agreement. ©. It appears also that by speaking of a technical business word such as ‘investment’ it should not be construed as limited only to a favorable gain or return of investment BUT also to a proportionate share in the loss of the business. Meaning, although Complainant (as he alleged) may have been guaranteed a minimum share of investment, his right would only be measured and made to depend base on the full success and conclusion of a project and after his full completion of his engagement. d. Noticeably apparent was the absence of control in Complainant's engagement. Complainant was not even obliged to stay in the MECO premises for a structured work hours like any other MECO employee. He was free to come any time he pleases and even had access to the unlimited use of MECO’s private gym. @. Moreso, Complainant worked with MECO at his own pleasure and was not subject to definite hours or conditions of work. He could even refuse or delegate his tasks to others, if he so desires or simultaneously engage in other means of livelihood while being connected with MECO f Under the conditions set forth, it is incontestable that Complainant was engaged as a consultant deemed as an independent contractor contracted to do consultancy service according to his own method and without being subject to the control of MECO. 2. Undeniably, the Labor Tribunal's jurisdiction being primarily predicated upon the existence of an employer-employee relationship between the parties, the absence of such element, as in the case at bar, removes the controversy from the scope of its limited jurisdiction. 1. At this early stage, respondents would like to emphasize that Complainant was not illegally dismissed from employment by the respondents. 2. In his Complaint, Complainant wants to collect from respondents a fantastic amount in the grand total of $250,437.89 or more or less TWELVE MILLION PESOS (Php12,000,000.00) for an alleged period of employment of at least 2 years, Copy of Complainants Contract Claims hereto marked and attached as Annex “4”, Definitely, this is a classic 31Pageexample of extortion with manipulation and harassment without regard to the close friendship, personal relationship and trust reposed in him by the individual respondents which dates back even prior to his business engagement. 3. Without a doubt, with his alleged entitlement to his ‘Contract Claims, Complainant seeks protection under the civil laws and claims no benefits under the Labor Code. The items demanded are not labor benefits demanded by workers generally taken cognizance of in labor disputes. It is of note that the items being claimed by HORN are the natural consequences flowing from the alleged breached of an obligation, intrinsically a civil dispute. 4. To have a cause of action, the claimant must show that that he has a legal right and the respondent a correlative duty in respect thereof, which the latter violated by some wrongful act or omission.‘ It is well settled in law and jurisprudence that where no employer-employee relationship exists between the parties and no issue is involved which may be resolved by reference to the Labor Code, other labor statutes, or any collective bargaining agreement, it is the Regional Trial Court that has jurisdiction *. 5. Unquestionably, the complaint could not be categorized under any of the cases within the jurisdiction of the Labor Arbiter under Article 217, considering that no employer-employee relationship existed between HORN and OPSEC or any of the individual respondents. OPSEC have never had any privity with HORN since it had its own employees to take care of. In the case at bar, it is clear that there is no employer-employee relationship between horn and OPSEC. Absent the jurisdictional requisite of an employer-employee relationship between petitioner and private respondents, the inevitable conclusion is that the Labor Arbiter is without jurisdiction to hear and decide the case with respect to the Complainant. OMI im -Emplo} lati HOi 1, To determine the existence of an employer-employee relationship, the ‘Supreme Court ina long line of decisions? has invariably applied the following four-fold test: the selection and engagement of the employee; the payment of wages; the power of dismissal; and the power to control the employee's conduct. Itis the so-called ‘control-test’ that is the most important element:. aoe 4 Marquez vs. Varela, 92 Phil, 373 (1952). day Agricultural Development Corporation vs. CA 324 SCRA 39, January 31, 2000, 3 Bautista, G.R. No, 21278, December 27,1966,18 SCRA 41, ‘Brotherhood’ Labor Unity Movement of the Philippines, et.al. vs. Zamora, G.R. No. 48645, January 7, 1987) 4|Page