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Horn Complainant Position Paper 1

Horn Complainant Position Paper 1

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REPUBLIC OF THE PHILIPPINES DEPARTMENT OF LABOR AND EMPLOYMENT NATIONAL LABOR RELATIONS COMMISSION REGIONAL ARBITRATION BRANCH NO. III CITY OF SAN FERNANDO, PAMPANGA TONY B. HORN, Complainant, -versusNLRC CASE NO. RAB-III 03-1648-09-P

OPSEC INTERNATIONAL GROUP INC. and HUNTER HAYNES NORMAN HAYNES MATILDE HAYNES, Respondents. x - - - - - - - - - - - - - - - - - - - - -x

POSITION PAPER
Complainant, through counsel and unto this Honorable Office most respectfully submits this Position Paper, thus
REPUBLIC OF THE PHILIPPINES DEPARTMENT OF LABOR AND EMPLOYMENT NATIONAL LABOR RELATIONS COMMISSION REGIONAL ARBITRATION BRANCH NO. III CITY OF SAN FERNANDO, PAMPANGA TONY B. HORN, Complainant, -versusNLRC CASE NO. RAB-III 03-1648-09-P

OPSEC INTERNATIONAL GROUP INC. and HUNTER HAYNES NORMAN HAYNES MATILDE HAYNES, Respondents. x - - - - - - - - - - - - - - - - - - - - -x

POSITION PAPER
Complainant, through counsel and unto this Honorable Office most respectfully submits this Position Paper, thus

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REPUBLIC OF THE PHILIPPINES DEPARTMENT OF LABOR AND EMPLOYMENT NATIONAL LABOR RELATIONS COMMISSION REGIONAL ARBITRATION BRANCH NO.

III CITY OF SAN FERNANDO, PAMPANGA TONY B. HORN, Complainant, -versusNLRC CASE NO. RAB-III 03-1648-09-P

OPSEC INTERNATIONAL GROUP INC. and HUNTER HAYNES NORMAN HAYNES MATILDE HAYNES, Respondents. x - - - - - - - - - - - - - - - - - - - - -x

POSITION PAPER
Complainant, through counsel and unto this Honorable Office most respectfully submits this Position Paper, thus:

THE PARTIES
Complainant is an American, of legal age, married and a resident of Sapang Biabas, Mabalacat, Pampanga, where he may be served with the processes of this Honorable office. Respondent OPSEC INTERNATIONAL GROUP INC, is corporation existing under the laws with principal office address at Sarita Street, Balibago, Angeles City, and the respondents NORMAN HAYNES, HUNTER HAYNES, and MATILDE HAYNES are the Financier, Managing Director and Operating Partner of said corporation at the same address where they may be served with processes of this Honorable Office.

STATEMENT OF FACTS/CASE
Complainant was employed on September 15, 2006 as an Administration Officer of the respondent company and the nature of his work cash disbursement. The Complainant was on a four hour daily work schedule until he was terminated and dismissed on October 25, 2008, without justifiable cause and without due process. His salary at the time of his dismissal was $1,200.00 per month for a 20 hour work week (Monday through Friday, 8:00am to 12:00 noon).

Initially, the complainant was hired for a Monday through Friday work schedule. When employed by OPSEC INTERNATIONAL GROUP INC., Mr. Horn entered an agreement that he would work daily schedule Monday through Friday between the hours of 8:00 am to 12:00 noon (four hours per day, twenty hours

per week). His salary was to be $500.00 per month or $5.77 (Five Dollars and Seventy Seven five cents) per regular work hour and $8.66 (Eight Dollars and sixty six cents) per hour of overtime. From September 15, 2006 to January 1, 2008 Mr. Horn worked a total of Sixty Eight (68) weeks and averaged 46 hours of overtime per week. Beginning January 1, 2008 the company decided to give Mr. Horn a pay increase to $1200.00 per month which would result in a regular hourly rate of $13.85 (Thirteen Dollars and Eighty Five Cents) per hour and an increase in overtime wage to $22.50 (Twenty Two Dollars and Fifty Cents) per hour of overtime worked. He was told that the pay raise was due to the fact that all foreign employees got benefits such as rent, utilities, food allowance and all expenses paid. Mr. Horn had worked for the company over a year and a half and had never utilized company funds entrusted to him for any such benefits, therefore they gave him a raise in pay for his prudence and trustworthiness. During the period of January 1 2008 to October 13, 2008 Mr. Horn worked Forty (40) work weeks and averaged 46 hours of overtime per week. Also, Mr. Horn was not paid at all for services rendered in the Month of October 2008 in which he had worked nearly two weeks.

Although Mr. Horn was a permanent employee, he, like all OPSEC employees, never received any benefits afforded him by the Philippine Law, to include, retirement, health insurance, holiday pay, vacation pay or 13 month pay.

On October 13, 2008 Mr. Horn departed for Jerusalem on a company authorized vacation without pay and upon his return was phoned by Mr. Norman Haynes and was told not to return to work on Monday 27 October 2008. Mr. Horn asked, “Why?” and Mr. Haynes told him just don’t return back to work cause if he were in the Monday meeting, “nothing good could come out of it”. When Mr. Horn attempted to enter the compound to get his personal belongings he was refused entry in the company premises.

Approximately two weeks after Mr. Haynes illegally dismissed Mr. Horn, Mr. Haynes called Mr. Horn and asked if he had company backup files and if Mr. Horn could come and reinstall the lost files on the OPSEC administration computers due to the fact that they had lost all company data and needed help. Mr. Horn and another former OPSEC former admin employee, Neal Cortez, graciously returned and gave the backup files to Miss Ann, the new administration officer hired in the place of Mr. Horn, and asked the new office staff if there were any questions that they could help them with and the new office personnel had no further questions. MR. Horn and Mr. Cortez were only admitted into the compound under an armed guard status in which the armed guard had continual surveillance on them for the duration of the visit, from entrance to exit.

During his employment with OPSEC INTERNATIONAL GROUP INC. Mr. Horn was never reprimanded for his work performance whether by verbal or written statement and was illegally dismissed by Mr. Norman Haynes.

ISSUES
WHETHER OR NOT THE COMPLAINANT WAS ILLEGALLY DISMISSED FROM EMPLOYMENT WHETHER OR NOT THE COMPLAINANT IS ENTITLED TO HIS MONETARY CLAIMS AND DAMAGES.

DISCUSSION/ARGUMENTS
We respectfully submit that the respondents are liable for illegal dismissal, for dismissing herein Complainant without due process of law. It is a basic

requirement that before an employee could be dismissed by an employer, he should first be accorded due process. Furthermore, said employee should only be dismissed for just cause or after it is proven in a formal investigation participated in by the employee concerned, that the accusation is true and that he is guilty thereof. In the instant case, there were no explanations given to the complainant for reason of dismissal or any prior write-ups for neither substandard job performance or any other company violations. On the contrary, the complainant was praised many times for his work habits which resulted in a 120% salary increase since the inception of his employment. This salary increase alone gives insight to the impeccable job performance of Mr. Horn. No company would give such a reward to an average employee and many would not give this type of Salary increase to a good employee. Therefore, His work performance must have been commendable and praiseworthy. The respondent company seemed to find no justifiable reason for the employee’s dismissal. The respondent company still has never given the complainant due cause and reason of why the he was dismissed.

This is undoubtedly a violation to the right to security of tenure. More so, the imposition of a penalty of dismissal for absolutely no offense rendered by Mr. Horn is not only improper but inhuman as well.

It can further be gleaned that the ulterior motive of the respondent company in dismissing the complainant is to get rid of an employee who had verbalized his opposition to their lack of providing benefits for their Filipino

workers, which included SSS, Phil-Health, 13 Month Pay, Overtime Pay, Holiday Pay and Pag-Ibig.

On account of the wanton, unjustifiable and illegal acts of the respondent in illegally dismissing the complainant without just cause and without him due process, the complainant suffered serious anxiety, sleepless nights and mental anguish for which the respondents should be held liable to pay in the amount of not less than $20,000.00. In order to serve as an example so as to deter the commission of similar acts, respondent should be made to pay the complainant exemplary damages of not less than $10,000.00. As the complainant was constrained to litigate on account of the wanton, unjustifiable and illegal acts perpetrated by the respondents, the latter should be adjudged legally bound to reimburse the complainant for Attorney’s fees in the amount equivalent to 10 % of the monetary award that may be adjudged in this case as well as the expenses for litigation.

PRAYER
WHEREFORE, premises considered, it is respectfully prayed from this Honorable Office that judgment be rendered in favor of the Complainant with the following terms: 1. Finding the respondents liable/guilty for illegally dismissing the complainant; 2. Ordering the respondent to pay the complainant separation pay in the equivalent of one month pay for every year of service; Ordering the respondents to pay the complainant the following:

3.

a. Overtime pay, holiday pay; SSS, Philhealth; PAGIBIG b. Attorney’s fees equivalent to 10% of the monetary award and other legal expenses incurred in the prosecution of this case to be determined thru the sound discretion of this Honorable Office; c. Moral damages of not less than $20,000.00; d. Exemplary damages of not less than $10,000.00;

Other reliefs just and equitable under the circumstances also prayed for. City of San Fernando, Pampanga, May 12, 2009.

ESTRABILLO-FLORES & ASSOCIATES

LAW OFFICES B. Mendoza St., City of San Fernando (P) Counsel for the Complainant BY: SYLVIA Q. ALFONSO-FLORES IBP No. 731468 (01-05-09) PTR No. 6350969 (01-05-09) City of San Fernando, Pampanga ROLL NO. 35857 MCLE Compliance No. 0002470

VERIFICATION
I, TONY B. HORN, after having been duly sworn to in accordance with law, hereby depose and state: 1. That I am the complainant in the above-entitled case; 2. That I caused the preparation of the foregoing Position Paper; 3. That all the allegations therein contained are true and correct to the best of our knowledge; IN WITNESS WHEREOF, I have hereunto affixed my signature this 12th day of May, 2009 at the City of San Fernando, Pampanga.

TONY B. HORN Affiant

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