Worker’s claim for wages denied

Labor Secretary Gil M. San Nicolas has affirmed the Labor administrative hearing office’s decision to deny an alien worker’s claim for wages during a period when he did not work after being injured in a fight with a co-worker.

San Nicolas ruled that the evidence cited by then administrative hearing officer and now Labor director Barry Hirshbein in Mohammed Ali Asraf’s labor case against Misamis Construction Saipan Ltd., “is sufficient and the legal grounds on which the order is based are proper.”

San Nicolas, however, reversed the hearing officer’s awarding of $525 in liquidated damages to Asraf.

“Liquidated damages are a surrogate for damages that cannot be accurately estimated or may be used by the Legislature to provide an incentive to employers to obey the law. Neither condition is present here,” the Secretary said.

San Nicolas said that Asraf brought on his own damages by engaging in a fight and then leaving his job, thus breaching his employment contract.

Labor records show that Asraf began working for Misamis Construction in 1999. He was renewed annually. Asraf’s last renewal application was submitted on Aug. 25, 2005 and would have expired on Aug. 19, 2006. The renewal permit was not approved by CNMI Immigration.

On May 27, 2006, Asraf was injured during a fight with a co-worker. He did not return to work after that date.

Asraf filed the Labor complaint seeking reimbursement of $36 in medical expenses; $525 in unpaid wages; and payment of contract wages for the remainder of his unexpired contract.

Asraf also filed a workers’ compensation claim for his injuries. He never submitted the medical expense to Misamis.

With respect to the unpaid wages in the amount of $525, Misamis, through a representative, admitted that this amount was not paid.

The representative testified that he sought legal advice and was urged to claim an offset against wages for disputed medical expenses.

Misamis felt that the $200 ambulance charge was not necessary. The company claimed that Asraf called the ambulance and then drove himself to the hospital.

Asraf testified that police were called to the scene and the police called the ambulance.

In an administrative order issued in December 2006, Hirsbein said that he is not convinced that Asraf is entitled to wages for the time when he did not show up at work.

Hirshbein said there was no showing that Misamis Construction was responsible in any way for Asraf’s injuries sustained as a result of the fight that occurred.

But the hearing officer determined that the complainant is entitled to $525 in unpaid wages. He directed Misamis Construction to pay Asraf $525 in wages plus $525 in liquidated damages and $36 as reimbursement for medical expenses, for a total of $1,086 (less withholding taxes on $525.

Asraf was then granted 45 days to transfer to a new employer.

Hirshbein found that the ambulance charge to be a legitimate medical expense.

In any event, Hirshbein pointed out, there is no provision in the Nonresident Workers Act for offset of wages.

Misamis Contruction, through operations manager Barrie Ladd, appealed. He asked San Nicolas to reverse the imposition of liquidated damages.

Ladd also requested that due to the vicious and unprovoked nature of the attack on his co-worker, Asraf should be denied transfer relief and be repatriated.

In his order, San Nicolas noted that Misamis appealed on the ground that the award of wages should have been offset against the medical expenses incurred by the company as a result of the fight.

San Nicolas said the hearing officer held that there was no showing that the company was in any way responsible for the injuries sustained as a result of the fight.

“However, there is no proof of any provision for setoff in the employment contract or any provision of law that would allow a setoff,” he said.

San Nicolas ordered Misamis to pay Asraf $525 less withholding taxes plus $36 as reimbursement for medical expenses.