Termination of alien worker found proper

The Department of Labor has found proper a defunct garment factory’s decision to terminate an alien worker who, in a fight with a co-worker, pretended to fall unconscious.

Labor Administrative Hearing Officer Jerry Cody concluded that Kyung Seung Saipan Inc.’s termination of Anmin Zhou’s employment contract was proper.

Cody, however, determined that Kyung Seung must pay Zhou $227.20 for work not provided during the 10-day notice period following termination.

“Although the termination was proper, the termination letter and conduct of the respondent-employer on the day of termination failed to inform [Zhou] that he was entitled to continue working for 10 days, or else, receive salary for the 10-day notice period,” he said in the administrative order he issued on Tuesday.

Cody ordered Zhou to leave the CNMI at the expense of Kyung Seung no later than 30 days after Tuesday. Zhou has indicated that he does not wish to transfer to another employer in the CNMI.

The hearing officer said the bonding company, Marianas Insurance Co. Ltd., may be held liable for the wage award and repatriation ticket if the company fails to pay and deliver the plane ticket.

Labor records showed that on March 31, 2008, Zhou filed a labor complaint against his employer, alleging that the company breached his contract by wrongfully terminating him without proper grounds.

Zhou worked for Kyung Seung in its packing department. His employment contract was renewed for one year in 2007. In March 2008, Kyung Seung told its workforce that it would be permanently closing the factory on May 2, 2008.

On March 27, 2008, Zhou and a co-worker, Jin Ri, had an argument in the packing section. After a brief verbal exchange, Ri yelled and threw a T-shirt at Zhou. Ri then walked up to complainant and either slapped his face once or pushed him.

After being slapped or pushed, Zhou took off his shoes and lay on the ground for a few minutes with his eyes closed. When the supervisor told Zhou to stand up, he continued lying on the ground and told her to call the police. Management called the police, but while waiting for them to arrive, they again tried to convince him to stand up.

Zhou remained silent, lying on the ground. Thereafter, several workers carried him to the cafeteria and placed him on a table.

While lying on the table, he started to hit his head repeatedly on the table. When the ambulance arrived, the ambulance staff asked Zhou if he could get up. He then got off the table and walked into the ambulance by himself.

Zhou later claimed that after he was slapped, he fell to the floor unconscious and did not regain consciousness until he arrived at the hospital.

Cody, however, found the complainant’s testimony not credible.

The general manager considered a prior warning in the complainant’s work record, which included “insubordination,” among other issues. The general manager decided to terminate both workers.

When Zhou reported to work on March 28, he was told to report to the management office where he was handed the termination letter.

After a brief discussion, he was escorted off the premises by company security guards. The termination letter stated that Zhou was being terminated for fighting.

Zhou then filed his complaint against the company.

Cody said the company’s investigation of the fight was somewhat flawed as Zhou was never asked to give a written statement after the incident about the underlying reasons for the fight.

On the other hand, Cody said, the general manager himself observed Zhou’s bizarre behavior on the day of the fight, which included pretending to be unconscious while at the same time demanding that police be called, among other things.

Such behavior, the hearing officer said, coupled with the prior record of insubordination, “could well have caused the general manager to conclude that complainant’s conduct was sufficiently disruptive and insubordinate to justify termination.”

With respect to the termination letter, Cody said the language of the letter is not entirely clear, stating that the worker’s employment is “terminated,” then stating that “this notice will be in effect 10 days from the date hereof.”

Cody said nothing more is stated about the worker’s right to continue working during that 10-day period.

“Given the letter, it is necessary for the employer to explain verbally to the worker his right to continue working despite the termination,” he said.

Alternatively, Cody noted, an employer can elect to instruct the worker not to return to work, provided that it pays the worker for the 10-day notice period.

In this case, he said, the company presented no evidence to establish that it had explained to Zhou his right to continue working.