San Nicolas orders worker to depart for filing false claims

Department of Labor Secretary Gil M. San Nicolas has upheld the decision of the Labor administrative hearing office that ordered to depart the CNMI an alien worker whose all claims, but one, against his former employer were found to be untrue.

San Nicolas said the evidence cited by then administrative hearing officer and now Labor director Barry Hirshbein in Zu Fa Liu’s complaint against Misamis Construction Saipan Ltd. “is sufficient and the legal grounds on which the order is based are proper.”

In affirming Hirshbein’s order, San Nicolas ruled that Liu must depart the CNMI within five days after Misamis Construction delivers the repatriation ticket to Labor.

The secretary said if Liu leaves the Commonwealth voluntarily pursuant to the terms of the order, eligibility to re-enter the CNMI in the future will be retained.

“If Liu is deported, there will be no eligibility to re-enter the Commonwealth in the future,” San Nicolas pointed out.

He ordered Misamis to pay the complainant within 10 days from March 31, 2008, the $375 processing fee that was deducted by the company from Liu’s wages.

Labor records show that on June 23, 2004, Liu filed a Labor case alleging that Misamis had not provided work from April 19, 2004, through the date of the filing of the complaint.

Liu also alleged that the company deducted $375 from his wages for Labor processing fees.

Misamis admitted that during that period workers were deducted for their processing fees. The company stopped that practice years ago.

While Misamis disputed the amount deducted they could not produce any records and conceded to the amount claimed.

On Sept. 17, 2003, Misamis submitted an expiration transfer application to Labor to hire Liu.

The application was denied in February 2007. Complainant worked under the contract from the time it was filed until June 13, 2004.

In his complaint, Liu states that, “my employer did not provide the job to me from April 19, 2004, to now.”

In his administrative order issued in August 2007, Hirshbein said he finds Liu’s credibility lacking and his evidence on the claim for damages to be insufficient.

Hirshbein, however, ruled that Liu prevails as to the issue of improper deductions from his salary and ordered Misamis to pay him $375.

But the hearing officer noted that the allegation of improper deductions alone would be insufficient to justify a worker from quitting their job.

Liu appealed. He claimed that the amount of $375 awarded by the hearing officer had not been paid within 10 days of the order.

Liu also appealed on the grounds that three months’ wages were, in fact, not paid. He argued that Misamis terminated his contract and that he did not abandon the job.

In addition, the worker requested that he should be permitted to transfer to a new employer.

As to the $375 issue, San Nicolas affirmed the award, saying the non-payment may have been the result of the filing of an appeal in this case.

On the three months’ wages issue, San Nicolas noted that the hearing officer found that the evidence of payment was clear, and Liu has stated no credible basis to challenge that finding.

With respect to abandoning the job finding, the secretary said the hearing officer found the testimony of Liu on this issue not to be credible and the evidence supporting this claim to be insufficient.

On the transfer request, San Nicolas said the hearing officer found, based on the worker’s own testimony, that he had violated Commonwealth law with respect to employment subsequent to the filing of a complaint.