GTS Security brings sleeping guard’s case to court

GTS Security Inc. has asked the Superior Court to review Labor Secretary Gil M. San Nicolas’ decision that found it unreasonable the termination of a security guard who fell asleep while awaiting his shift to start.

GTS Security, through counsel Maya B. Kara, said the company had no knowledge whatsoever that an appeal had been taken by security guard Danilo Y. Cruz.

In GTS’ petition for judicial review, Kara said Cruz did not serve her client with any notice of appeal or with any other document such as supporting memorandum or brief in support of the appeal.

“Because GTS was denied the opportunity to defend, or in any way participate in, the appeal to the Secretary, GTS had no knowledge what additional evidence, if any, was presented or what arguments may have been made on appeal,” Kara said.

The lawyer said had GTS had the notice of the appeal to the Secretary, the company would have introduced further evidence of Cruz’s intoxication and other matters relevant to Cruz’s discharge.

In his administrative order issued in November 2007, Labor administrative hearing officer Herbert Soll said Cruz encountered difficulty in getting to his work as a security guard on Dec. 28, 2005.

Cruz’s automobile was not operating and he called for a ride from his employer, GTS Security. He arrived at work earlier than scheduled and sat down near the entrance to the Hafadai Beach Hotel employees’ living quarters, his assigned work location.

Cruz soon fell asleep. The GTS supervisory employee discovered him in that sleeping state.

The supervisor assumed that the guard was under the influence of alcohol and photographed him.

The supervisor then called for a replacement to take his soon-to-begin shift. When Cruz finally awakened it was after 11pm.

Cruz attempted to speak with the managing officer of the employing corporation. He was, however, not given an opportunity to do so.

A letter of discharge was written on Dec. 29, 2005 and served upon Cruz.

Cruz adamantly denied being intoxicated. He claimed to have been tired after a prolonged effort to repair his vehicle that day.

In his order, Soll found Cruz less at fault than GTS is by measure of the refusal to allow him to state his position before final termination was decided.

Soll said the evidence at the hearing, however, established that reasonable grounds existed to support the termination action taken.

Soll did not award Cruz with his claim for wages, but allowed the complainant to transfer to a new employer.

Cruz, through attorney Stephen C. Woodruff, appealed Soll’s decision to the Labor Secretary.

Woodruff asserted that Soll’s order erred as a matter of law in failing to award contract damages when the facts as found by the hearing officer and stated in the order clearly established that the termination was wrongful.

Labor Secretary San Nicolas said he disagrees that reasonable grounds existed to support GTS Security’s termination of Cruz.

“There was no evidence introduced by the Appellee (GTS) in support of the supervisor’s assumption of intoxication, save the fact that Appellant (Cruz) was sleeping,” he pointed out.

San Nicolas remanded the case for further hearing and instructed Soll to take evidence on wages due and award Cruz such sum.

In GTS petition, Kara said GTS vice president for operations John D. Guerrero appeared on behalf of the company at the hearing on Oct. 28, 2008.

Kara said Guerrero was under the impression that this was yet another mediation sessions.

The lawyer said Cruz’s failure to serve GTS with service of process regarding his appeal of the hearing officer’s decision was in flagrant violation of GTS’ due process rights and also of Labor’s Employment Rules and Regulations.

Kara asked the court to set aside and vacate the secretary’s order and affirm Soll’s decision that reasonable grounds existed for the termination of Cruz’s employment.