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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 BRIAN HORN.
NLRC Case No. RAB-Ill-03-14640-09
OPSEC INTERNATIONAL GROUP INC., NORMAN HAYNES, MATILDE HAYNES and HUNTER HAYNES, .
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.
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. N orman 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 Blvd, Mandaluyong City. Hunter Haynes is one of the incorporator and member of the board of directors of OPSEC.
STATEMENT OF FACTS
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. (MEeQ, for brevity), OPSEC undertook to provide its management services to the former. MECD is a 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, ME CD usually assigns some of its independent consultants to DPSEC 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 MEeD. Engagement, Remuneration and Termination of their services are directly dealt and handled by MEeD,
4. As far as DPSEC was informed) Complainant Tony Brian Horn (HORN, for brevity) was engaged as an Independent Consultant of MECD. 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.
Complainant was engaged as an Independent Consultant of ME CO and NOT of respondent OPSEC
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
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 MECD. Notably, OPSEC was not a privy to this agreement.
c. 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 MEca premises for a structured work hours like any other MECD employee. He was free to come any time he pleases and even had access to the unlimited use of MECa's private gym.
e. Moreso, Complainant worked with MECa 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 MECD.
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 MEeD.
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.
Complainant has NO valid cause of action against the respondents:
Labor Arbiter's jurisdiction must be employment-related
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,OOO.OO) 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
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 2.
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.
There is a COMPLETE ABSENCE ofEmployer·Employee Relationship between OPSEC and HORN
1. To determine the existence of an employer-employee relationship, the Supreme Court in a long line of decisions'' has invariably applied the following four-fold test:
a. the selection and engagement of the employee;
b. the payment of wages;
c. the power of dismissal; and
d. the power to control the employee's conduct.
It is the so-called 'control-test' that is the most important elements,
1 Marquez vs. Varela, 92 Phil. 373 (1952).
2 Lapanday Agricultural Development Corporation vs. CA 324 SCRA 39, January 31,2000. 3 Feati v. Bautista, G.R. No. 21278, December 27,1966,18 SCRA 41.
4 'Brotherhood' Labor Unity Movement of the Philippines, et. at vs. Zamora G.R. No. 48645, January 7, 1987)
2. Considerably, the absence of the power to control the employee with respect to the means and methods by which his work was to be accomplished, there is no employer-employee relationship between the parties".
On the Power to Select and Engage
1. As earlier mentioned, it is MECD and not OPSEC who engaged the services of Complainant, Being a corporate being, OPSEC has a personality distinct and separate not only from its incorporators or board members but specifically, from other entities or organization. The assignment of Complainant with OPSEC is only based pursuant to an existing agreement with MECO and not based on its decision to hire or engage the former.
2, As far as OPSEC was made aware, Complainant HORN was engaged as a Consultant of MEeo based on an agreement between them founded on the mutual trust between Haynes Family and Horn Family. This is to us was a valid agreement considering that our laws recognizing Contract of Consultancy Services.
3. By definition, a consultant is one who provides professional advice on matters within the field of his special knowledge or training. There is no employer-employee relationship in the engagement of a consultant but that of client-professional relationship. Thus, consultancy services are not considered government service and a consultant is not considered a government employee=.
On the Power of Wages
I. One salient point in the determination of employer-employee relationship which cannot be easily ignored is the fact that Complainants' remuneration is not paid by OPSEC but by MECO. Moreover, the investment share in the amount of $50,000 per year or an equivalent of Php2AOO,OOO.OO is an arrangement definitely not entered into by OPSEC with the Complainant.
2. It is of note that by the purpose of its incorporation, OPSEC shall act as a managing agent of organizations providing management and financial' services to such entities. Hence, granting (assuming it may be true) guarantee of an investment share is definitely not allowed by its purpose and is outside the business of OPSEC. Moreover, no Board Resolution authorizing such grant was ever passed by the member of its board. Further, such amount cannot be promised considering the limits of OPSEC'S capital investment and current financial standing which is way below Php2.4 Million, Copy of the Affidavit executed by Ms. Geene F. Villareal, payroll officer of OPSE~ hereto marked and attached as Annex "5".
3. It appears that Complainant here is misguided. He is speaking of investment returns but is translating them as wages. Undoubtedly, his complaint is a
5 Continental Marble Corporation, et al. VS. National Labor Relations Commission, G.R. No. 43825, May 9,
6 esc Resolution No. 95-6939 dated November 2, 1995 Pagaduan, Ma. Dolores, et al, vs. Malonzo, Reynaldo, et al.).
simple action governed by the dvil law and the statute governing the Civil Code and not the Labor Code should be made to apply. As ruled by the Supreme Court, 'Where the legal basis of the complaint is not employment but perhaps partnership, co-ownership or independent contractorship, then a requisite for the application of this labor standards law does not exist. In such a situation, the claim generally cannot be pursued before the Department of Labor or its offices or agencies",
On the Power of Dismissal
1. Complainant alleged that he was illegally dismissed by respondent OPSEC and its individual respondents. This statement is not only a tall tale story but a COMPLETE LIE.
2. Not being its employee, it is absurd to think that OPSEC even had the right to dismiss the Complainant. As stated earlier, Complainant entered a consultancy agreement with MECO, and not with OPSEC. This being the fact, he was at liberty to pre-terminate said agreement at anytime he wish. To which - HE REALLY DID.
3. In fact, for numerous occasions, Complainant had repeatedly expressed his intention of terminating his consultancy agreement or Project Participation Project. Finally, this decision was formalized in October of 2008 when Complainant announced inside MECO's conference room and in the presence of MECO'S partner and other consultants his decision to terminate his consultancy agreement. Indeed, there was no instance, at any time, during or after his announcement - that Complainant was illegally dismissed or unfairly treated. Short of repetition, there is even no illegal dismissal to speak of considering the absence of employer-employee relationship, Copies of the Affidavits executed by Hunter D. Haynes and Claude Howard Cochran, hereto marked and attached as Annex "6" and "7" respectively.
4. Again, it is neither MECO nor OPSEC who terminated HORN's services.
Complainant's separation from his consultancy services is of his doing.
5. As a matter of fact, by MECO's goodness, MECO'S partners even gave Complainant Pastor Horn a generous amount of $10,000.008 equivalent to Php480,OOO.OO in consideration of HORN's standing in the religious community. This amount shall represent MECO's help to Horn's family and additional contribution in support of any charitable and religious endeavor Pastor Horn may do.
6. Particularly, handing of the said amount was witnessed by Horn's daughter Stacey Horn and a MEeO office aid, Shayne A. Fairbanks. In addition, HORN executed an Acknowledgment and Waiver releasing MECO of any liability relating to his consultancy agreement, Copy of the Affidavit executed by Shayne A. Fairbanks and the Acknowledgment and Waiver dated December 3, 2008 hereto marked and attached as Annex "8" and "9" respectively.
7 The Labor Code with Comments, c.A. Azucena.
8 Refer to Affidavit executed by Norman D. Haynes dated May 15,2009 prevtously marked and attached as Anne~
On the Power ta CONTROL
1. The following points will support respondents' claim that there is a complete absence of employer-employee relationship between HORN and OPSEC, or any of the named respondents:
a. Complainant HORN was not required to report for work daily and observe definite hours of work;
b. Complainant HORN does not have to devote his time exclusively to or work solely for MECO since the time and the effort he spend in his work depend entirely upon his own will and initiative. Hence, he was free to accept other engagement elsewhere;
c. Complainant HORN is not required to account for his time nor submit a report of his activities;
d. Complainant HORN works at his own volition or at his own leisure without fear of dismissal from the company and short of committing acts detrimental to the business interest of the company or against the latter;
e. Complainant HORN works inside the premises of MECO, not OPSEC.
On Complainant's Claim far MORAL & EXEMPLARY DAMAGES
1. HORN is claiming a mind-blowing amount of $20,000.00 or roughly PhpBOO,OOO.OO as Moral Damages for the alleged unlawful dismissal of his employment. This claim is not only highly unconscionable but a clear case of extortion.
2. In fact, even if an employee was declared illegally dismissed or suspended, it does not follow that he is entitled to moral damages. As held in the case of PAL vs. NLRC, "moral damages are recoverable only where the dismissal or suspension of the employee was attended by bad faith or fraud, or constituted an act oppressive to labor or was done in a manner contrary to morals, good customs or public policy. Bad faith does not simply mean negligence or bad judgment. It involves a state of mind dominated by ill will or motive. It implies a conscious and intentional design to do a wrongful act for a dishonest purpose or some moral obliquity. The person claiming moral damages must prove the existence of bad faith by clear and convincing evidence for the law always presumes good faith".
3. Besides, malice or bad faith is different from the negative Idea of negligence ,in that malice or bad faith contemplates a state of mind affirmatively operating with furtive design or ill will'P,
4. Also, as held in the case of Primero vs. Intermediate Appellate Court+, an award of moral damages cannot be justified solely upon the premise (otherwise sufficient for redress un der the Labor Code) that the employer fired his employee without just or due process. Additional fact must be pleaded and proven to warrant the grant of moral damages under the Civil
9 PAL vs. NLRC, et ai, G.R. No. 132805, February 2, 1999.
10 Equitable Banking Corp. vs. NLRC and R.L. Sadac, G.R. No. 102467, June 13, 1997 citing Far East Bank and Trust Co. vs. CA, 241 SCRA 671.
II 156 SCRA 435, 1987
Code, these being, to repeat, that the ~ct of dismissal was attended by bad faith or fraud, or was oppressive to labor or done in a manner contrary to morals, good customs or public policy; and of course, that social humiliation, wounded feelings, grave anxiety resulted therefrom.
5. In the case at bar, the termination of HORN's engagement was his own personal caIling and no one but himself decided the same. This being said, we could only imagine what moral damages was the complainant talking about when the severance of his engagement was of his own making.
On Complainant1s ClaimJor ATTORNEY'S FEES
1. In his Amended Complaint, HORN also claims for an award of attorney's fees.
This claim is not only pathetic but absolutely abusive. It is to be noted that in employment termination cases, attorney's fees are not recoverable where there is no sufficient showing of bad faith on the part of the private employert- ..
2. From the above premise, it is clear that HORN can not be entitled to his claim of Attorney's Fees considering the undeniable fact that there is no employeremployee relationship between him and OPSEC or any of the named individual respondents.
On Complainant's claim for UNREIMBURSED EXPENSES and other MONEY CLAIMS
1. Additionally, HORN is claiming for the payment of his alleged gasoline expense and motor vehicle maintenance in the embellished amount of $2,115.33 or more or less Phpl00,OOO.OO. Again, the purpose of extortion is clear. All the good Complainant can do is to exaggerate the facts, in a pathetic attemptto turn the tide.
2 .. Unfortunately for the Complainant, questions of whether or not the reimbursements claimed by him against OPSEC are legitimate or not are questions NOT to be resolved by the Labor Arbiter through labor legislations it not having to do with wages or their terms and conditions of employment BUT rather - recourse to the civil law should be made. Besides, HORN's money claims were not an incident of his employment with OPSEC. Notably, money claims of workers which do not arise out of or in connection with their employer-employee relationship fall within the jurisdiction of regular courts of justice. Hence, "money claims of workers" referred to in paragraph 3 of Article 217 embraces money claims which arise out of or in connection with the employer-employee relationship, or some aspect or incident of such relationshtpts.
3. Similarly, it was just too unlikely and unbelievable for the Complainant to allow his claims for travel expense to accumulate for more than Php100,OOO.OO in his supposed more than 2 years of imaginary employment with respondent OPSEC. Surely, this claim for reimbursements-of unpaid
12 The Labor Code with Comments, CA Azucena.
13 San Miguel Corporation vs. National Labor Relations Commission, et al., C.R. No. 80774, May 31,1988.
travel expense and vehicle maintenance was too late in a day and undeniably merely an afterthought by the complainant in his strong effort to overstate the total amount being claimed. Moreover, had these expenses claimed by him really incurred, he should have collected them long time ago or at the time he terminated his consultancy contract with MEeD.
4. Simply stated, complainant is claiming for monies advanced by him which includes purchase price for gasoline and the cost of repair and maintenance jobs made on his personal car. Significantly, those accounts have no relevance to the Labor Code. The cause of action is one under the civil laws, and it does not breach any provision of the Labor Code nor the illusioned contract of employment of Complainant. Hence the civil courts, not the Labor Arbiters and the NLRC should have jurisdiction.
5. Respondents hereby reserves their right to submit a Supplemental Position Paper and affidavit, including other documents or a Reply to Complainant's Position Paper.
ALL TOLD, it is said that he who comes to court must come with clean hands. The Labor Laws was enacted to help the disadvantaged and lowly workers to collect what is due to them and who often must look up to the law for their protection. It is never enacted to facilitate abusers of law and be used to harass and extort incredible amount of money from investors who are the our partners in the development ofthe nation's economy.
As a matter of conscience, Pastor Horn should not shout to the high heavens claiming that he was illegally dismissedfrom his alleged employment of September 15~ 2006 up to October 2008. He knows very well that these statements are untruthful for on September 15, 2006, OPSEC have not even started its business operation.
Moreover, his acceptance of a generous amount of Php480,000.00 should have been more than enough. At least, the most honorable thing for a man to do is to show his gratitude and share" such blessings to others who believe in the goodness of his heart. It has been repeatedly held that "No person should enrich himself at the expense of or prejudice of others. II
WHEREFORE, premises considered, respondents respectfully pray that captioned case be dismissed for utter lack of merit and lack of jurisdiction.
Other reliefs and remedies just and equitable in the premises are prayed for.
Angeles City for the City of San Fernando, Pampanga, May lS, 2009.
Lily fHm PI ., laro M. Recto Highway Clark F~:pt:l'rt Zone, Pampanga, Philippines Roll of Attorneys No. 51097
IBP Lifetime No. 05365; 05.16.2005; Pampanga P.T.R. No. ACF 0206054; 01.05.09; Angeles City MCLE Compliance No. II~0005890
Tony Brian Horn Sapang Biabas Mabalacat, Pampanga
VERIFICATION and CERTIFICATION AGAINST NON-FORUM SHOPPING
We, Sps. Matilde Haynes and Norman D. Haynes, American and Filipino, respectively, both of legal age, with address at Sarita street, Diamond Subdivision, Angeles City, subscribing under oath depose and say that:
1. We are one of the respondents in the NLRC Case No. RABI I 1-03 -14640 tv 'I
c' sed ~ the preparation of the foregoing
Vll .. ,.~A. ,?(PCP" the contents of which
are and c@rrect of our own personal knowledge andlor
based on authentic company records;
3. We have not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or the different Divisions thereof, or any other tribunal or agency, and that to the best of my knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or the different Divisions thereof, or any other tribunal agency. If I should learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or the different Divisions thereof, or any tribunal or agency, I shall notify this Honorable Office within five (5) days from such notice.
1;~jl~ITNESS WHEREOF, I have hereunto affixed our signatures F d~/" o f May, 2009 in the City ~.An~e_Ies.
C/!I) 1· ~~~--.
/MAT$LIbE'. NES . .cNORMAN D. H~~S
SOBSCRIBED AND SWORN to before me on affiant exhibited to me their:
MATILDE HAYNES ... SS· ts- S ?))ij I -,?
this /?!1ay of May, 2009
Reg. No. Ot!"i Page No. ~; Book No. ~; Series of 2009.
'i1,'YLl:NE A. Yl: I ~AtDE-~i1,4
Co .rnlssi No. 2008 _ .
Until )e ember 31.2009
.':]:-.R.' No, 1157346/01.02.08 I~A C
. !"foil of Attorney No. 51097 '.
I BP Lifetime No. 05365/05.16.2005 256 ADL Bldg., Friendship Hi.way Anunas, Angeles City
VERIFICATION and CERTIFICATION AGAINST NON-FORUM SHOPPING
I, HUNTER DEAN Z. HAYNES, American, of legal age, single, with addr es s at Sarita Street, Diamond Subdivision, Angeles City, subscribing under oath depose and say that:
1. I am one of the respondents and the authorized representative of OPSEC INTERNATIONAL GROUP INC., also one of the respondents in the NLRC Case No. RAB-III-03-14640.li
2. That upon the authorization of the Board of Directors I I
caused the preparation of the foregoing
the contents of which are true and correct of my own personal knowledge and/or based on authentic company records;
3. I have not commenced any other action or proceeding involving the same issues ih the Supreme Court, the Court of Appeals, or the different Divisions thereof, or any other tribunal or agency, and that to the best of my knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or the different Divisions thereof, or any other tribunal agency. If I should learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or the different Divisions thereof, or any tribunal or agency, I shall notify this Honorable Office within five (5) days from such notice.
I~'tl~~TNESS this ~ day of
WHEREOF, I have/1reU7i rc' " ixxees:! /~y
May, 2009 in tb€ ,t of les<"
./ . /
7' - -- Itl-----
../J :m-EI--DEAN -Z. HAYNES
SUBSCRIBED AND SWORN to before me on this / ,;.,' day affiant exhibited to me his:
of May, 2009
Passport No. Valid Until
Reg. No. Page No. Book No.
- - ,
Series of 2009.
7' Notary Pblbli@ I
- Com<nission No. Ma£!-
Until --")ecember 31, 2009
P.T.R. No. 1157346/01.02.081 A.I Roll of Attorney No. 51097
16P Lifetime No. 05365/05.1 ?2:" 256 AOL Bldg., Friendship Hl-W, Anunas, Angeles City
KNOW ALL MEN BY THESE PRESENTS:
1. I, LEAH D. MAYAMAYA, Filipino, of legal age, after having been duly sworn to in accordance with law hereby depose and state that:
2. I am the acting Corporate Secretary of OPSEC INTERNATIONAL GROUP INC., a corporation duly organized and existing in accordance with Philippine laws, with office address at Unit 116 Cityland Shaw Tower, St. Francis Sreet corner Shaw Blvd. Mandaluyong City;
3. I hereby certify that at the special meeting of the Board of Directors of tbe Corporation held last April 7, 2009 at which a quorum was present, the following resolution was approved:
"RESOLVED, AS IT IS HEREBY RESOLVED, that Mr. Hunter Dean Z. Haynes and/or our legal counsel, Atty. Mylene A. yturralde Chan has been appointed to represent the company in the cases filed against it dooketed as NLRC Case Nos. RAB-III-12-14248-08 and RAB-03-14640-09.
This authority shall include the power to sign Position Papers, Supplemental Position Paper, Reply, Compromise Agreement, Notice of Appeal and Memorandum of Appeal and all kinds of pleadings relative to the case including the power to enter into an amicable settlement with the Complainant."
4. This resolution is still binding date, and remains in full force revoked or modified by the Board.
and effective up to this and effect until validly
IN WITNESS WHEREOF, I have hereunto set my hand this 7th day of April, 2009 in the City of Angeles.
'~EiL~ln~ Acting C~~~~~!:tary
J ... lUB~S;:;;'BfD AND SWORN to before me this day of
____ ~.~~ ~ / affiant exhibited to me her:
Flxilippll1@ fdg9pOi e US. '">....., ~
-"7 f \. ~II~ .....,./.,..,' ~ ~
-, l' "} l"l:) v '.:'I. .,
Reg. No. Page No. Book No.
Series of 2009.
/ MYLt:.:'Jf:-.ft.s-- ~;tV -RALDE-CHAN
, C mrnlssion No. 2008- \~rrtil ')ecember 31. 2009
P .T.R. No. 1157346/01.02.08 1 A.C. Roll of Atto-ney No. 51097
IBP Ufefime No. 05313! 05.16.2005 256 ADL 8Ir;', Fne •• dship Hi-way Anunas. Ang· ... ,~s Clry
AR'JI"liClLlE§ OF INCOI~PORATJJ:ON
OP§EC' nNTE)j;tNATION~L GP..OITP INC.
The undersigned incorporators, all of legal age and dJajority of who are residents of the Philippines, have this day voluntarily agreed to form a stock ~
corporation under the laws of the Republic of the Philippines. .
'lI'HA 1r Wi'lE HEREBY ClElR'J1J.JFY.:
OPSEC INTERJ\lATIONAL GR01JlP INC.
SECOND: A. That ItI'll!~ ~lr~ml1l!lj' purpose of this eorporetlon is
to act as managing agents of persons firms, associations, ccrporations, partnerships, and other entities; to provide management, financial, and technical advice for companies, industrial, manufacturing, and other kinds of enterprises including services on collection of receivables; and to undertake, carry on, assist or partid'phte in the promotion, organization, . mur-agement, and liquidation or reorganization of corporations, partnerships, and ether entities, except the management of funds, securities, and portfolio of similar assets ofthe managed entities or corporation, broker of dealer of securities, government securities eligible dealer (GSED), investment adviser of an investment company, close-end or open-end investment eempaay, investment house, transfer agent, eotnmodity/ financial futures exchangel brooker! merchant. financing company, pre-need plan issuer, general agent in pre-need pl~9 and time shares/ club shares I membership certifications issuer or selling agents thereof.
B. That the corporation ~h2,11 have all the express powers of a corporation as provided for under section 36 of the Corporation Code of the Philippines.
. . - "
REPUBLIC OF THE-PHILIPPINES )
In the CITY OF ANGELES )S.S.
I, NORMAN D. HAYNES, of legal age, American, married to Matilde Haynes, and a resident of Angeles City, after having been sworn to in accordance with law, hereby depose and say:
1. That I am a limited partner of MANILA EXPLORATION CO. - ANNEX, LTD. (MECO).
2. That sometime in the year 2007, Pastor Tony Brian Horn entered into a consultancy agreement with MECO or otherwise known as a Project Participation Contract. The consultancy agreement was not reduced into writing because of the mutual trust and friendship between me and Pastor Horn.
3. Pursuant to the Oral Consultancy Agreement, it was clear that there shall be no employer-employee relationship between both parties and that the consultant shall not be entitled to other remunerations and benefits being regularly granted and enjoyed by MEca employees. However, such consultant shall be entitled to a reasonable fee upon the successful completion of the project
4. As Pastor Hom was the head ofa church who is one of the beneficiaries ofMECO's religious and charitable works, the trust reposed on him at the time of his engagement was indisputable. All concerns attributed to his engagement, including his appointment as a
consultant, were directly discussed to me. .
5. Nonetheless, in the last quarter of 2008 and before the completion of our project, Pastor Horn has repeatedly signified his intention of pre-terminating his consultancy agreement.
6. On October 2008, Pastor Hom formally pre-terminated his Project Participation Project. He articulated the termination of his engagement inside our conference room stating that he wants more time with his family. Hence, we respected his decision.
7. There was no instance that Pastor Hom has been illegally terminated from his engagement.
His separation from MECO was his decision and he was never influenced nor coerced to arrive at the same.
8. In fact, being considered as a member of our family, we have given Pastor Hom a generous amount to help his poor churchrnates and pursue his religious work here in the Philippines. On December 3, 2008, Pastor Horn received a full amount of $10,000.00 or more or less Php480,000.00 from me, in behalf of MECO representing as his Waiver and Release to discharge MECO from any or future claim, in lieu of the pre-termination of his consultancy agreement.
9. Considering the financial difficulties currently being suffered by our company, this huge amount was given to Pastor Horn in the strong belief that the proceeds of the same will help his family and aid him to continue his religious and charitable work.
10. That I am executing tbis Affidavit in support of whatever legal purpose it may serve as well as to attest to the truth of the foregoing averments.
AFFIANT FURTHER SAYS NONE. 1 .n
IN WITNESS WHEREOF, I have hereunto set my hand this~· _ day of May, 2009 in the City
of Angeles, Philippines.
"-- _.- . -----/"" NOR~A-N D. HAYNES
SUBSCRIBED AND SWORN to before me this _ day of May, 2009 affiant exhibiting to me
t1 :. jll!4f"'/'f- 6 r}.l -~ j Cc: s:
U 11f, '!' fI./ '(/'&1 t 'ft Jere;
.... If dReg. No.f)ff I;
Page No,)'1 . Book No.fL; Series of 2009.
In the CITY OF ANGELES )5.S.
I, GEENE F. VILLAREAL, of legal age, Filipino, and a resident of Lot 26, Block 61, Sampaguita Village, Trece Martirez-Cavlte, after having been swornto in accordance with law, hereby depose and say:
1. That I am the Payroll Officer of OPSEC INTERNATIONAL GROUP INC. (OPSEC), a domestic corporation organized and existing under' the Philippine laws with principal address at Unit 1116 City Land Shaw Tower Saint Francis Street corner Shaw Blvd., Mandaluyong City;
2. As appearing in its Articles of Incorporation, OPSEC is a corporation principally organized to provide management, ftnancial, human resource development and technical advice for companies, industrial and other kinds of enterprise.
3. That based on the corporate record at hand for the periods of September 15, 2006 to October 13, 2008, there is no documentation or information appearing that Tony B. Horn is included in the Payroll of Employees of OPSEC. Likewise, there was no instance that Tony B. Horn had received any compensation or remuneration from OPSEC.
4. That I am executing this Affidavit in support of whatever legal purpose it may serve as well as to attest to the truth of the foregoing averments.
AFFIAN. T FURTHER SAYS NONE. cDI
'. , lifT" .
IN WITNESS WHEREOF, I have hereunto set my hand this __ day of May, 2009 in
the City of Angeles, Philippines.
SUBSCRIBED AND SWORN to before me this.~ day of May, 2009 affianLeljib'IJg
to me her: , . ,.
SSS Card with No. 33-2537555-6 . /
. / -
MYLENE A. YTURBAlsD£':CffAN
~OTARYPUBLIC Commission No. 2008-175; Until December 31, 2009
( • Roll of Attorneys !~o. 51097
\ IBP Lifetime No. 05365; 05.16.2005; Pampanga PTR No. ACF 0206054; 01.05.09; Angeles City MCL.E Compliance No. U-0005890
[ZJe Reg. NO . .......L;
Page No. "L-;
BookNo.~ Series of 2009.
In the CITY OF ANGELES )S.S.
I, HUNTER D. HAYNES, of legal age, American, and a resident of Diamond Subd., Brgy, BaJibago, Angeles City, after having been sworn to in accordance with law, hereby depose and say:
1. That I am the son of Norman D. Haynes, a limited partner of MANILA EXPLORATION CO. - ANNEX, LTD. (MECD), a limited partnership with principal address at No. 18, Jasmin Street, Valle Verde II, Pasig City;
2. As far as I can recall, in the 3"rd and 4th quarter of 2008, Tony Horn had repeatedly informed us of his intention to terminate his Project Participation Contract with MECD;
3. That sometime in October 2008, Tony Horn formally pre-terminated his Project Participation Contract were he also works as a Consultant of MECa.
4. Tony Horn expressed his desire to terminate his consultancy contract in the presence of fellow Americans inside MEeO's conference room but mainly directed his intention of cutting ties with MECO to my father Norman Haynes, the co-owner
of M ECO who had engaged his services. .
5. According to Tony Horn, his decision was arrived at after realization that his family comes first and that his work is giving so much stress to him. Mr. Norman Haynes respected Tony Horn's decision.
6. There was no instance that Pastor Horn had been illegally terminated from his engagement with MEtO. His separation with MECD was his own decision and he
was never influence by any of us. ,
7. That I am executing this Affidavit in support of whatever legal purpose it may serve as well as to attest to the truth of the foregoing averments.
AFFIANT FURTHER SAYS NONE.
thiS/(7# day of May, 200.9 in
TN WlTNESS WHEREOF, I have the City of Angeles, Philippines.
SUBSCRIBED AND SWORN to before me this _ day of May, 2009 affiant exhibiting.
to me her: , . ) .
[A () If!"., .., '.-
"J p!~ itJlf , 7"; '~(J 1- ( )
1-.,,(" I u» OJ '11"); = "I
(/! ,(." V'V- .t;........ I
.... ~LA6.DE-CHAN NOTARY PUBLIC
Commission No. Zo.B- - 5; Until December 31, 20.09
Roll of Attorneys No. 510.97 IBP Lifetime No. 05365; 05.16.2005; Pampanga PTR No. ACF 0206054; 0.1.05.0.9; Angeles City MCLE Compliance No. 11-000.5890
Reg. N o.l4C . Page No .. p,) ; Book No . .1I.L.; Series of 2009.
In the CITY DF ANGELES )S.S.
I, CLAUDE HOWARD COCHRAN, of legal age, American, and a resident of Apartment 31-10 B, S.Y. Orosa Street Brgy. Balibago, Angeles City, after having been sworn to in accordance with law, hereby depose and say:
1. That J work as an independent consultant of MANILA EXPLORATION CO. - ANNEX, LTD. (MEeO), a limited partnership with principal address at No. 18, Jasmin Street, Valle Verde II, Pasig City;
2. That sometime in October 2008, Tony Horn formally pre-terminated his Project Participation Contract were he also works as a Consultant of MEeD.
3. Tony Horn expressed his desire to terminate his consultancy contract in the presence of fellow Americans inside MECO's conference room but mainly directed his intention of cutting ties with MECD to Norman Haynes, the co-owner of MECO who had engaged his services.
4. According to Tony Horn, his decision was arrived at after realization that his family comes first' and that his work is giving so much stress to him. Mr. Norman Haynes respected Tony Horn's decision.
S. There was no instance that Pastor Horn had been illegally terminated from his engagement with MECO. His separation with MECD was his own decision. and he was never influence by any of us.
6. That I am executing this Affidavit in support of whatever legal purpose it may serve as well as to attest to the truth of the foregoing averments.
AFFIANT FURTHER SAYS NONE.
IN WITNESS WHEREOF, I have hereunto set ~y hand this )f/it day of May, 2009 in
the City of Angeles,.Philippines. / ~ _
;' / -~ -- ....-;,
(~~ I,,--:C-c -,.(- ~_...,-:;:. - « <: < £ __ --r- ... '-
CLAUDE HOWARD COCHRAN Affiant .
SUBSCRIBED AND SWORN to before me this&day of May, 2009 affiant exhibiting
to me her: . - -- ~ /"
p, r[~j' I ./4 W ~ ( U" ~ ()7- ;; t itl/ Z,
'IV/(,':,) I,AlAkJ ]A;ct -DI <s : - /~~
Reg. N o.Od } . Page N o.~-, ; BookNo.~ Series of 2009.
A. YTURRALDE,.CHAN NOTARY PUBLIC Commission N .2008-175; Until December 31,2009 Roll of Attorneys No. 51097 IBP Lifetime No. 05365; 05.16.2005; Pampanga PTR No. ACF 0206054; 01.05.09; Angeles City MCLE Compliance No. 11-0005890
In the CITY OF ANGELES )S.S.
I, SHAYNE A. FAIRBANKS, of legal age, Filipino, and a resident of No.7 Alley Road, Vi11a Angela, Angeles City, 'after having been sworn to in accordance with law, hereby depose and say:
1. That I am employed as an Office Aid at MANILA EXPLORATION CO. - ANNEX, LTD. (MEeO).
2. That on December 3, 2008, Pastor Tony Horn, together with his daughter Stacey Horn headed inside the office of my employer, Mr. Norman Haynes.
3. Mr. Haynes hand over the cash to Pastor Horn as financial assistance in lieu of the latter's pre-termination of their consultancy agreement.
4. Thereafter, Pastor Horn signed an Acknowledgment and Release to confirm his receipt of the full amount of $10,000.00. Subsequently, Stacey Hom and I were requested to' stand as witnesses and signed our names to attest to the genuine execution of the instrument
5. That I am executing this Affidavit in support of whatever legal purpose it may serve as well as to attest to the truth of the foregoing averments.
AFFIANT FURTHER SAYS NONE.
IN WITNESS WHEREOF, I have hereunto set my hand this j':;!f' day of May, 2009 in
the City of Angeles, Philippines.' I
~~~ SHAYNE A. FAIRBANKS
. Affiant. I, _
SUBSCRIBED AND SWORN to before me this ~~ay of May, 2009 affiant exhtbi .... t}rig
tome her: j""
,,\-;".-1 Reg.No.~ ; PageNo.~ BookNo.~ Series of 2009.
MYLENE A. YTl1f!BA.LDE ... eHJtN-· --~ ~OTAR¥PUBLIC
Com SSiOD No. 200B~175: Until December 31, 2009
RoD of Attorneys No, 51097
IBP Lifetime No. 05365: 05.16.2005i Pampanga
'-- PTR No. ACF 0206054; 01.05.09: Angeles City
MCLE Compliance No. II-OOOS890
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