Sheu’s Brothers Holding Co. Ltd was ordered to pay $4,477.40 as prospective damages to Vivian Elayda Lua, a waitress of the Ocean Palace Restaurant in Chalan Kanoa.
Lua is also entitled to attorney’s fees, at least for that portion of the case that concerns the wrongful termination claim, according to Labor’s Division of the Administrative Hearing Office.
In his order dated Oct. 31, Hearing Officer Jerry Cody said the Nonresident Workers Act holds that in any action brought by or on behalf of a nonresident worker, in which the employer is held to have breached an employment contract with the worker, that party should be awarded reasonable attorney fees and court costs.
But Labor dismissed Lua’s claim of unpaid wages because the worker failed to prove by a “preponderance of the evidence” that she worked more than 40 hours per week as specified in the contract.
At the start of the employment, restaurant owner Yue Fang Sheu gave Lua the choice of being paid hourly or at a flat monthly salary of $500, plus $50 for a housing allowance. Lua chose to be paid the flat monthly salary.
Labor said it does not condone the arrangement of the parties for a flat monthly salary, as this arrangement was never approved by the department.
But Cody said the record does not reflect conduct that would justify terminating a worker for cause.
Although the employer issued a letter complaining of tardiness and absenteeism, the payroll and time records produced by the employer do not show any tardiness, Cody added.
In March 2005, Sheu hired Lua as waitress of her restaurant but during the course of her employment, she reportedly had occasional problems with Lua’s work attendance and performance.
Sheu, on several occasions, brought to Lua’s attention her absenteeism and tardiness.
Two months after, Sheu gave a verbal warning and a final written warning but Lua stopped going to work for several days due to an illness.
Sheu demanded medical excuses from a doctor. Lua was able to produce one doctor’s notice, but she was absent again for two days due to her ongoing illness.
Labor ordered Sheu to reimburse Lua for $50 in documented medical expenses base on the evidence presented during the hearing.
