Labor finds resto owner liable for wrongful termination of waitress

The Department of Labor has found a restaurant owner liable to pay contractual damages to its waitress who was wrongfully terminated.

Labor Administrative Hearing Officer Jerry Cody ordered Sheu’s Brothers Holding Co. Ltd. to pay $4,477.40 in contractual damages to the waitress, Vivian Elayda Lua.

Cody ordered Sheu Brothers to pay $50 to Lua as reimbursement for unpaid medical expenses that she incurred.

Cody also directed the company to pay Lua attorney’s fees, at least for that portion of the case that concerns the wrongful termination claim.

The hearing officer, however, ruled that no unpaid wages are due to Lua.

Cody also did not award liquidated damages to the complainant with respect to the contractual damage issue.

Lua’s transfer is no longer at issue as it was already granted to her on Aug. 14, 2008.

According to Labor records, Lua filed the labor complaint against Sheu’s Brothers in July 2007.

The complaint alleges unpaid wages and wrongful termination and asks for awards for unpaid wages for work performed, contractual damages for wages not provided, and for liquidated damages.

In March 2005, the company opened its Ocean Palace Restaurant in Chalan Kanoa and hired nonresident Lua as a waitress.

On March 14, 2005, Lua and respondent company entered into a written employment contract that was later approved by the Labor director.

The contract was scheduled to expire on March 16, 2006. The contractual rate of pay is $3.05 per hour with time and a half pay for overtime.

At the start of the employment, respondent gave complainant the choice of being paid hourly or at a flat monthly salary of $500, plus $50 for a housing allowance. Complainant chose to be paid the flat monthly salary.

During the course of her employment with respondent, complainant had occasional problems with her work attendance and work performance.

On May 31, 2005 and after several verbal warnings, respondent gave Lua a “final written warning” regarding these issues.

In late June 2005, Mr. Sheu, made a two-week trip to the mainland U.S., leaving his wife, Yue Fang Sheu, in charge of the restaurant.

Around June 26 and 27, complainant missed several days due to an illness and tension grew between Mrs. Sheu and complainant over her absences.

Mrs. Sheu demanded medical excuses from a doctor. Complainant produced one doctor’s notice, but then was absent again on July 1 and 2, due to her ongoing illness.

On July 2, complainant informed Mrs. Sheu that she was ill and complainant again visited a medical clinic and obtained a doctor’s slip.

On July 3, 2005, when complainant attempted to return to work, Mrs. Sheu angrily told her not to come to work anymore.

A few days later, complainant was told by a co-worker, Natalia Santos, to come to the restaurant where complainant spoke with Tzu Ming Sheu by telephone.

In that conversation, Mr. Sheu told complainant that she had abandoned her job and was terminated.

Shortly thereafter, complainant sought assistance from the Federal Ombudsman’s Office and filed a labor complaint against respondent.

On the wage claims, Sheu Brothers denied that complainant had to work more than eight hours per day or that she worked more than five days each week.

In his order, Cody said neither party was completely credible on these issues.

“For its part, the respondent-employer prepared time records, to show that complainant worked eight hours per day, five days per week, but these did not necessarily reflect exact minute-by-minute details in each worker’s schedule,” he said.

As to complainant’s time cards, Cody said Mr. Sheu claimed he had deliberately overlooked times when complainant had arrived late for work or was absent for entire shifts.

“Thus, none of complainant’s alleged tardiness or absences were recorded on the time cards,” Cody said.

In conclusion, Cody finds that Lua failed to prove by a preponderance of evidence that she worked more than 40 hours per week that is specified in the contract.

“Minor fluctuations in the schedule were most likely not recorded accurately in either party’s documentary records,” he noted.

Cody said on the more substantial issue of whether Lua worked a full seven days every week, the testimony of complainant is not believed when evaluated against the combined testimony of Mr. Sheu and co-worker, Santos, who corroborated Mr. Sheu’s version of events rather than complainant’s version.

“Based on the factual evidence presented, the hearing officer finds that no unpaid wages are due to complainant,” he said.

On the termination issue, Cody said Lua gave a credible and accurate testimony regarding her telephone conversations with respondent—both Mrs. Shue and Mr. Shue—in early July 2005.

Cody said Mrs. Sheu refused to accept the legitimate medical excuse offered by complainant on July 2, 2005. Then, the hearing officer said, several days later, Tzu Ming Sheu told complainant by telephone that she had abandoned her job and was terminated.

“Even though the employer issued no written termination letter at that time, the employer’s statements on the telephone left complainant with the unmistakable impression that her employment had been terminated,” he said.

While the respondent denies making the statements attributed to him, Cody said he finds complainant’s testimony on this issue more credible than that of respondent.

As to any grounds for termination, Cody said, the record does not reflect conduct that would justify terminating complainant for cause.

The company has taken the position that complainant was never terminated in July 2005.

“However, there is no evidence that respondent ever offered complainant her job back after she filed this claim and it became clear that she believed she had been terminated,” Cody said.

The hearing officer determined that the employer breached the contract by terminating complainant’s employment without proper notice and without proper cause as required by the contract.