No merit in termination complaint vs TDHC

The Department of Labor’s administrative hearing office has issued a ruling favorable to Tinian Dynasty Hotel and Casino in connection with a wrongful termination complaint filed by a former restaurant supervisor.

Labor administrative hearing officer Jerry Cody determined that Edgar E. Soliva has presented insufficient evidence to prove wrongful termination.

In his order issued last Thursday, Cody said that Soliva’s refusal to return to work after filing his claim was unjustified, therefore Tinian Dynasty had valid grounds to terminate him for unexcused absences.

The hearing officer, however, allowed the complainant to seek a new employer within 30 days. Soliva was ordered to register with Labor’s Division of Employment Services within seven days from last Thursday.

“Although complainant has not prevailed, I find that complainant filed the case in a good faith, albeit misplaced, effort to resolve a disputed issue with his employer,” Cody said.

Labor records show that Soliva was employed by Hong Kong Entertainment Overseas, owner of Tinian Dynasty Hotel and Casino, as a restaurant supervisor.

On April 12, 2005, his supervisor, Dynasty’s Food & Beverage director Benson Mok, told Soliva that the management had received complaints from other employees that he was sleeping during his work shift.

Mok noted that the co-workers had reported that Soliva used to disappear from his work area (Casino Café) for extended periods of time and that he had been found sleeping on one occasion.

Mok told complainant that his conduct was unacceptable and constituted grounds for termination.

Soliva denied that he had been sleeping and disagreed that he should be terminated. During the discussion, the Beverage director said he would accept complainant’s resignation instead of going through the termination process.

Soliva argued that he should be subject to a lesser disciplinary action pursuant to Dynasty’s Employee Handbook.

On April 15, 2005, complainant approached the Beverage director and asked him whether Dynasty would allow him to obtain a “consensual transfer” if he chooses to resign.

The director stated that that decision could only be made by Dynasty’s Director of Human Resources, Ronald Chan.

Chan later told Soliva that if he resigns, Dynasty would grant him consensual transfer, provided that the transfer be done within 30 days of the date of his resignation. Soliva told Chan that he needed a few days to consider the proposal. Complainant asked for, and was granted, a four-day leave of absence.

The director then approved a leave form, which Soliva signed.

On April 18, 2005, Soliva visited the Federal Ombudsman’s Office, and the next day, filed a labor complaint against Dynasty for wrongful termination. After filing the complaint, complainant did not return to work at Dynasty. On June 2, 2005, Dynasty terminated him based on his unauthorized absence from work.

Tinian Labor issued a finding against Soliva on his monetary claims on Feb. 22, 2006, and recommended that transfer relief be denied.

In his administrative order, Cody said that, at the August 2007 hearing, Soliva’s basic position was that he felt in April 2005 that he was being coerced by Dynasty’s management into resigning from his job.

Cody said the employer’s position was that it had not decided whether to terminate Soliva at the time he filed his complaint, and after he failed to report for work for six weeks thereafter, the company had ample grounds to terminate him for unauthorized absences.

Cody said he finds Soliva’s version of events to be unbelievable and inherently inconsistent with other facts on the record.

“If this worker were terminated on April 15, why would the company immediately issue an official four-day leave of absence to him?” he pointed out. “If he were terminated, why would management keep asking for his written resignation?”

The hearing officer said the more credible explanation was that “resignation” was offered to Soliva, instead of going through a formal termination proceedings, which could have prevented him from transferring to a new employer.

In order to prevail in his claim, Cody said, complainant must prove that he was constructively discharged in April 2005.

Cody said the courts hold that a constructive discharge results when “job conditions are so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.”

“Based on the evidence presented, I conclude that as a matter of law, the facts involved here do not constitute constructive discharge,” he said.

Although Soliva did not prevail on his claim for back wages or damages, Cody said, the ruling is largely based on procedural grounds and no findings have been made with respect to the underlying “termination” issue of whether Soliva was sleeping on duty.