Juan T. Guerrero and Associates Inc., doing business as GTS Security, filed a petition for judicial review of the agency’s decision regarding the case of Danilo Y. Cruz.
GTS said it was not given any notice of appeal that the defendant have submitted, among other reasons.
GTS, through its counsel Maya B. Kara, is requesting the court to issue an order to set aside and vacate the Labor secretary’s order on appeal dated Oct. 17, 2008 and to reverse the hearing officer’s administrative order dated Nov. 26, 2008.
GTS also wants the court to affirm the hearing officer’s decision that reasonable grounds existed for the termination of Cruz’s employment; and to issue a stay of any proceedings on the issue of damages during the pendency of the petition for judicial review.
GTS is a asking for attorney’s fees and costs of suit, and other provisions as GTS may be entitled to according to law.
GTS said the secretary’s order on appeal on Oct. 17, 2008 was the first inkling they had that the case was not resolved.
GTS said Cruz did not serve them with any notice of appeal or any other document.
Because GTS was denied the opportunity to defend the appeal to the secretary, they had no knowledge what additional evidence was presented or what arguments may have been made on appeal.
John D. Guerrero, GTS vice president for operations, appeared at the hearing on Oct. 28, 2008.
GTS said Cruz’s failure to serve them with service of process regarding his appeal on the hearing officer’s decision was in violation of due process rights and of Labor’s rules and regulations.
GTS said that the department through its secretary aggravated and continued the violation of the company’s due process rights by issuing the secretary’s order on appeal without evidentiary proof that GTS had been served with notice of appeal.
According to GTS, in issuing a final agency decision without the benefit of evidentiary proof that it had been served with a notice of appeal, Labor acted in excess of its limitations and statutory rights.
“The reversal of the hearing officer’s decision by the secretary was in clear violation of the Administrative Procedure Act, which requires that before a decision on agency review is reached, the parties are entitled to a reasonable opportunity to submit for the consideration of the persons participating in the decision,” GTS stated.
The company employed Cruz as a security guard on Oct. 5, 2005.
Cruz started working for GTS on Oct. 24, 2005 pursuant to a conditional grant of transfer issued by Labor. He was assigned to the Hafa Adai Hotel as a security guard.
On Dec. 28, 2005, Cruz was discovered asleep on the job. His supervisor, Ed Necessito, deemed Cruz to be intoxicated and sent him home.
Cruz was served a 10-day notice of termination the following day.
Cruz, through his lawyer Stephen C. Woodruff, filed a complaint against GTS on Jan.1, 2006 with the Department of Labor for improper processing of his Non-Resident Worker Application, and improper termination of contract.
Following an investigation, Labor issued a notice of hearing but no violations of labor laws were found except a $60 medical charge paid by Cruz.
Labor recommended that GTS reimburse Cruz for the $60, that he be denied a transfer and that he be repatriated.
On Nov. 26, 2007, Hearing Officer Herbert D. Soll issued an administrative order finding in favor of GTS and dismissing the complaint but granting transfer relief to Cruz.
The hearing officer found that “the evidence at the hearing established that reasonable grounds existed to support the action taking by GTS.”
On Oct. 17, 2008, Labor issued a secretary’s order on appeal to reverse the hearing officer’s decision by finding that there was no reasonable ground to support the action taken by GTS and remanded the matter to the hearing officer on issue of damages.
Cruz said he called his employer for a ride to work on Dec. 28, 2005 as his car was not operating.
He arrived at work early, sat down near the entrance to the Hafa Adai Hotel employees’ living quarters and fell asleep.
He said the supervisor assumed that he was intoxicated and photographed him.
Cruz said he tried to speak with the managing officer of GTS but he was not given an opportunity to do so.
The court has issued a summons to Cruz to file an answer to make the petition for judicial review decision within 20 days.
