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How Far Do You Have to Go Before Firing an Employee

By Staff Report

Dec. 30, 1999

Issue: Your employee injured his back while on the job. He took five days of workers’ compensation leave but did not return on his scheduled return date. In addition, he neither called nor otherwise informed your company of his whereabouts. One week after his scheduled date of return, your office received a doctor’s note stating that the employee would be off work indefinitely.


Approximately six weeks later the employee received a medical released to return to work without restrictions, but once again, he did not return to work on his scheduled return date. Three weeks after his second scheduled return date, the employee called, stating that he would know his medical status within the next few days.


During this time, your office received a copy of its own leave form from the employee’s workers’ compensation attorney, but the form had the second return date crossed off and a new return date written in its place. You then sent a certified letter to the employee informing him that he did not have approval from a medical doctor to change the return date.


In your letter you specified the date that the employee was expected to return to work, and although the employee reported to work on that day, he failed to report for work thereafter. You subsequently terminated the employee; will that termination be upheld?


Answer: Yes; just cause supports the termination here. There are seven standards traditionally applied by labor arbitrators in discipline and termination cases. An answer of “no” to any question often means that an employer does not have just cause to terminate or discipline an employee. Consequently employers need to ask themselves the following questions before imposing any disciplinary, especially one that results in termination:


  1. Whether the employer gave the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?


  2. Whether the employer’s rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the employer’s business, and (b) the performance that the employer might properly expect from employees?


  3. Whether the employer, before disciplining the employee, made an effort to discover if the employee did in fact violate or disobey a rule or order of management?


  4. Whether the employer’s investigation was conducted fairly and objectively?


  5. Whether the employer obtained substantial evidence or proof that the employee was guilty as charged?


  6. Whether the employer applied its rules, orders, and penalties evenhandedly to all employees?


  7. Whether the degree of discipline administered was reasonably related to (a) the seriousness of the employee’s proven offense and (b) the record of the employee’s service to the employer?


Here the employee’s discharge was warranted by just cause since the evidence clearly established that he violated a work rule by refusing to come to work in spite of a medical release. In addition, the employee had been made aware of the employer’s work rules and the potential disciplinary measures.


The employer had a right to expect its employees to work when they were scheduled to work, and had conducted its investigation in a fair and objective manner. Finally, the discipline imposed had been applied even handedly and was reasonably related to the proven offense.


Cite: City of Pella, Electrical Division and International Brotherhood of Teamsters, Local #147. 99-2 ARB 3238. Rex H. Wiant.


SOURCE: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health-care and small-business professionals. CCH offers human resource management, payroll, employment, benefits, and worker-safety products and publications in print, CD, online and via the Internet. For more information and other updates on the latest HR news, check our Web site at http://hr.cch.com.


The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.


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