‘Termination of security guard found sleeping is unreasonable’

Labor Secretary Gil M. San Nicolas has found unreasonable the termination of a security guard who fell asleep while waiting for his shift to start.

San Nicolas said he disagrees that reasonable grounds existed to support GTS Security Inc.’s termination of Danilo Y. Cruz.

“There was no evidence introduced by [GTS] in support of the supervisor’s assumption of intoxication, save the fact that [Cruz] was sleeping,” he pointed out.

San Nicolas reversed the decision of Labor administrative hearing officer Herbert D. Soll, who had determined that Cruz shall take nothing from GTS in his claim for wages.

The Secretary remanded the case back to Soll for further hearing and instructed the hearing officer to take evidence on wages due and award Cruz the sum.

In his administrative order issued November 2007, Soll said that Cruz had difficulty getting to work on Dec. 28, 2005. Cruz’s car was not operating and he called his employer, GTS Security, for a ride. He arrived at work earlier than scheduled and sat down near the entrance to the Hafa Adai Hotel employees’ living quarters, his assigned work location.

Cruz removed his shoes and was soon asleep. The GTS supervisory employee discovered him in that state.

The supervisor assumed that the guard was under the influence of alcohol and photographed him.

The supervisor then called for a replacement to take over the shift. When Cruz finally woke up, it was after 11pm.

Cruz tried to speak with the managing officer of the employing corporation. He was, however, not given an opportunity to do so.

A letter of discharge was written on Dec. 29, 2005, and served upon Cruz.

Cruz adamantly denied being intoxicated. He claimed to have been tired after a prolonged effort to repair his vehicle that day.

Cruz said he arrived early at work and decided to rest in a discreet place. His tiredness caused him to sleep beyond the time when he was to take over his shift.

The supervisor, according to Cruz, assumed that he was intoxicated and photographed him while he was asleep (but not on duty).

A replacement was called while no attempt to wake up Cruz occurred. The next day, without allowing the complainant to state his position, Cruz’s employment was terminated.

In his order, Soll found Cruz less at fault than GTS was by refusing to allow him to defend himself before being terminated.

Soll said the evidence at the hearing, however, established that reasonable grounds existed to support the termination action.

The hearing officer cited a section of the contract that provided for the employer to discuss the alleged violation with the employee.

Soll said Cruz did not do so, although he requested to speak with the person in charge.

“This eliminated any chance of finding that the supervisor may have been mistaken in his assumption that the complainant was in violation of company policy,” Soll said.

Soll did not award Cruz with his claim for wages, but allowed him to transfer to a new employer.

Cruz, through attorney Stephen C. Woodruff, appealed Soll’s decision to the Labor Secretary.

Woodruff asserted that Soll’s order erred as a matter of law in failing to award contract damages when the facts as found by the hearing officer and stated in the order clearly established that the termination was wrongful.

San Nicolas agreed with Woodruff. He said Cruz tried to speak to the manager of the company but, contrary to the provision of the contract that required that he be given an opportunity to do so, he was not allowed to explain the circumstances and he was terminated.