Page 2 of 5

Opposition against Complainants’ Appeal

JOVEN LORA BUENVIAJE, Complainant,
-versus-MAXIMA STEEL MILL CORPORATION
AND HENRY ONG, Respondents.
NLRC NCR CASE No.-03-00093-22
X-------------------------------------------------X

4. The failure to implead TOPNOTCH as an indispensable party is

fatal to the cause of actions of the complainant against
respondent MAXIMA STEEL MILLS CORP. because of the
absence of employer-employee relationship since the employment
relationship rests between complainant and TOPNOTCH;

5. Oppositor TOPNOTCH hereby move for the outright denial of

the complainant’s appeal considering that TOPNOTCH will be
deprived of its right to due process as it cannot participate to
answer the malicious allegations of the complainant from the
level of the Labor Arbiter and the Honorable Commission as in
this case on appeal;

6. The Self-serving affidavit of complainant remains to be an

allegation absence of proof to support his material allegations
such as non-payment of13th month pay and service incentive
leave pay. Actually based on records, he was properly paid
(Exhibit-2.1-2.3);

7. All told, complainant merely fabricated his allegations contrary

to the evidence obtained in this case which established that
complainant was an agency employee under a legitimate and
independent manpower agency, the TOPNOTCH;

8. A Memorandum of Agreement from year 2020-2022, between

TOPNOTCH and MAXIMA have been entered into for the
deployment of agency workers to perform incidental tasks as
additional welder and utility workers to augment the manpower
complement of the respondent (Exhibit-3);

9. With complainant’s assignment/deployment to MAXIMA all the

benefits such as 13th month pay, service incentive leave pay,
night shift differential pay, special days, whenever required to
work and other benefits were fully paid by TOPNOTCH;

10. For the record, complainant suddenly did not report for the
work week period of February 26,2022 – March 02, 2022 as
verified by our supervisor in coordination with the assigned
security guard of the client company, MAXIMA;

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Page 3 of 5
Opposition against Complainants’ Appeal
JOVEN LORA BUENVIAJE, Complainant,
-versus-MAXIMA STEEL MILL CORPORATION
AND HENRY ONG, Respondents.
NLRC NCR CASE No.-03-00093-22
X-------------------------------------------------X

11. Thus, on March 08, 2022, the TOPNOTCH sent a letter-notice

to complainant to report back for work which despite receipt and
contacts made, he still did not report for work (See Exhibit-4 for
copy of Letter-Notice via registered mail);

12. Also, on March 15,2022, TOPNOTCH sent again another

letter-notice to the complainant repeatedly reminding him that
failure on his part to report shall be deemed as gross neglect of
duty and is a ground for termination under the company rules
regulations (See Exhibit-5 for copy of Letter-Notice via registered
mail);

13. As regard SSS Contributions, TOPNOTCH religiously remitted

his contributions. At any rate, this issue falls within the
jurisdiction of SSS;

14. TOPNOTCH maintained that employment relationship exists

between complainant and the company. The four-fold test of
employment relationship cannot be made to apply against
respondent, MAXIMA STEEL, for the latter was not the one who
selected and hired the complainant, it is TOPNOTCH. Likewise,
respondent, MAXIMA STEEL, was not the one who paid wages
and salaries of complainant, it is TOPNOTCH. Moreover,
respondent, MAXIMA STEEL, was not the one who can impose
disciplinary actions, dismiss or terminate complainant, it is
TOPNOTCH. Lastly, respondent, MAXIMA STEEL, was not the
one who supervised and control complainant’s means, method
and ways of performing his job as he was under the supervision
of TOPNOTCH . Based on the foregoing, complainant was an
agency employee;

15. As regard the application for control test and economic reality
test, the test of employment relationship squarely fall and
applicable with the TOPNOTCH and not with MAXIMA. The
control test, regarded as the most important test of employment
relationship refers to the exercise of control and supervision over
the worker as to the manner and method by which the work is to
be performed. Here, respondent is merely interested only as to
the result of the work thereof and not to the performance of the
work of complainant which is under the control and

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Page 4 of 5
Opposition against Complainants’ Appeal
JOVEN LORA BUENVIAJE, Complainant,
-versus-MAXIMA STEEL MILL CORPORATION
AND HENRY ONG, Respondents.
NLRC NCR CASE No.-03-00093-22
X-------------------------------------------------X

supervision of the TOPNOTCH. Likewise, the economic reality

test clearly show that complainant’s employment is dependent
on TOPNOTCH for employment and his continuing possession
of the skills needed by its clients and the continued adherence
to company policy, rules and regulations. Both tests exist with
TOPNOTCH and not with respondent, MAXIMA STEEL;

16. With respect to the application of Sec.8 of D.O.174-17, the

respondent and its manpower agency believed that they complied
with the requirements in entering in permissible or job
contracting arrangements. The TOPNOTCH is a distinct and
independent business as evidenced by its valid certificate of
registration as legitimate job contractor. Likewise, TOPNOTCH
has substantial capital of more than 5Million Pesos based on the
financial statements and verification made by DOLE before the
issuance of the certificate of registration. Moreover, it is free from
control and/or direction by its client MAXIMA in the discharge or
performance of its functions as and as embodied in the service
agreement. Lastly, TOPNOTCH and respondent MAXIMA have
both entered into service agreement that ensure compliance with
all the rights and benefits of complainant;

17. Also, the records of this case is bereft of any fact or act of
dismissal committed by TOPNOTCH. As supported by pieces of
evidence, it was clearly established that the complainant was
never terminated or dismissed by TOPNOTCH;

18. With respect to cases cited by the complainants, TOPNOTCH

maintained that jurisprudence cited are not applicable in this
case as TOPNOTCH is not a labor-only contractor and the
arrangement is one permitted by D.O.174-17 as permissible job
contracting arrangement; and

19. Finally, the failure of the complainant to implead TOPNOTCH

as an indispensable party as required by the provision of the
Rules of Court in suppletory character, rendered the complaint
and the proceedings void ab initio.

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 PRAYER

WHEREFORE, PREMISES CONSIDERED, it is most

respectfully prayed of this Honorable Commission that the appeal
be dismissed for lack of merit.

Other reliefs, just and equitable under the circumstances are

likewise prayed for.

28 November 2022, Valenzuela City, Philippines.

_______________
Manager

Copy furnished:
P.C. DE JESUS LAW OFFICES
Counsel for complainant
Unit 3-A PPSTA Bldg. 1,
Quezon Avenue, Quezon City