Labor Hearing Officer Jerry Cody upheld the decision of the Tinian Dynasty Hotel and Casino to terminate Edgar E. Soliva for unauthorized absence from work.
In his administrative order on June 19, Cody said the judgment is entered in favor of Dynasty and against Soliva who filed a wrongful termination claim.
The investigation showed that on Apitl 12, 2005, Benson Mok, Dynasty’s food and beverage director, received complaints from other employees that Soliva was sleeping during his work shift.
Mok informed Soliva that his conduct was unacceptable and constituted grounds for termination.
Soliva denied the allegation and disagreed that he should be terminated.
According to the investigation, Mok was willing to accept Soliva’s resignation instead of going through the termination process, but the restaurant supervisor didn’t wish to resign and argued that he should be subjected to a lesser disciplinary action.
Three days after, Soliva asked Mok whether the Dynasty management would allow him to obtain a “consensual transfer” if he chose to resign. While waiting for the management’s approval, Soliva filed a four-day leave of absence.
On April 18, 2005, Soliva visited the Federal Labor Ombudsman’s Office and filed a labor complaint against Dynasty for wrongful termination on the following day. He didn’t return to work.
Dynasty terminated Soliva’s contract on June 2, 2005.
The Department of Labor investigated the case and issued a “determination” on Feb. 22, 2006 that denied Soliva’s monetary claims and recommended that transfer relief be denied.
Soliva told Labor that “felt” he was being coerced by Dynasty’s management into resigning.
But the Dynasty position was that it had not decided whether to terminate Soliva at the time he filed his complaint; and after Soliva failed to report for work for six weeks thereafter, the hotel management had ample grounds to terminate him for unauthorized absences.
“The hearing officer finds complainant’s version of events to be unbelievable and inherently inconsistent with other facts in the record,” the order said.
“If this worker were terminated on April 15, why would the company immediately issue an official four-day leave of absence to him? If he were terminated, why would management keep asking for his written resignation? Why would an HR director terminate a supervisor orally, in contravention to the company’s written disciplinary procedures, knowing full well that the terminated supervisor was aware of the company policy of using written termination letters,” the order added.
In order to prevail in his claim, Labor said Soliva must prove that he was constructively discharged.
Cody said Soliva has presented insufficient evidence to prove wrongful termination and his refusal to return to work after filing his claim was unjustified.
