Two court decisions reflect the legal protection given to the honest mistake or reasonable belief. In one case, the mistake may have been (but probably not) the employer's in an allegedly retaliatory discharge case. In the other, the mistake may have been by (but, again, probably not) by the employee in getting himself fired and denied temporary total compensation through the workers' compensation system.
In the first case, the nurse alleged that a Hilliard nursing home had fired her for cooperating in an investigation of the death of a patient by the state Department of Health. Tingle v. Arbors at Hilliard, No. 11-34-94 (6th Cir. 8-29-12). Prior the state investigation, she had received disciplinary action for failing to begin CPR on the patient in question after he died and for failing to call his physician until after first calling the patient's sister and the police. She had a disciplinary action expunged related to questions about the validity of her CPR certification at the time of the patient's death. She received another disciplinary action several months later for insubordination for failing to comply with an instruction. Finally, she was disciplined for, among other things, unsafe practices a few months after that. Receiving three disciplinary actions with a year resulted in her termination under the employer's policies. She claimed that she had not engaged in all of alleged misconduct. However, as the Sixth Circuit concluded, even if she were innocent, she failed to show that the employer was aware of its mistake at the time of its termination. In addition, she failed to show that the mistake was a mere pretext for retaliation. Therefore, even if she were completely innocent, the employer's honest belief that she violated the rules protected it from liability for a wrongful termination.
In the second case, an employee was fired for taking more paid leave than he had banked in his leave bank. He later filed a claim for TTD workers' compensation for a pre-existing injury. State ex rel. Brown v. Hoover Universal, Inc., Slip Opinion No. 2012-Ohio-3895. However, employees who voluntary abandon their jobs cannot receive TTC.
Employment discharge can constitute a voluntary abandonment when it is a consequence of behavior that the claimant willingly undertook. State ex rel. Watts v. Schottenstein Stores Corp., 68 Ohio St.3d 118, 121, 623 N.E.2d 1202 (1993). Voluntariness, however, can be imputed to a claimant's misconduct only when the misconduct arises from a violation of a written work rule that (1) clearly defined the prohibited conduct, (2) identified the misconduct as a dischargeable offense, and (3) was known or should have been known to the employee.The employee claimed that he had not taken more leave than in his bank and his termination was the result of the employer's miscalculation of the amount of leave had utilized. In the alternative, the employer presented evidence that he may have innocently mistaken how much leave he had available and had utilized. The Court of Appeals concluded that BWC was required to evaluate whether just cause to discharge the employee existed. Because the BWC had not examined whether the employee had a good faith belief about his use of paid leave, there could be no finding of deliberate misconduct as necessary to impute a finding of voluntary abandonment. On the employer's appeal, the Supreme Court agreed.
"Although it is the employer that formalizes the employment separation when a worker is fired, dismissal is nevertheless considered employee initiated, and hence voluntary, when it arises from the employee's decision to engage in conduct that he or she knows will result in termination."
Brown argues that his discharge cannot be considered voluntary because he did not engage in prohibited conduct or did not do so knowingly. At his commission hearing, Brown asserted that his bank-hour withdrawals exceeded his available balance only because Johnson Controls improperly charged him with 16 hours, rather than eight, for consecutive sick days. This argument, in turn, raised the issue of whether a previously submitted C-84 disability form was a valid doctor's excuse for purposes of the consecutive-sick-day exception to the bank-hour policy.
The issue of the C-84 form was critical for two reasons. First, if the C-84 was found to be a valid doctor's excuse, it would support Brown's assertion that he satisfied the requirements of the consecutive-sick-day exception and should have been charged just eight hours for this absence. This determination would affect Johnson Controls' bank-hour calculation. Second, even if the C-84 were found to be inadequate, a good-faith belief that it satisfied the rule's requirement could support Brown's alternative claim that his violation of the rule was neither knowing nor deliberate.Because none of these issues were mentioned by the BWC hearing officer opinion, the case was remanded for further consideration. The Court "recognize[d] the great potential for abuse in allowing a simple allegation of misconduct to preclude temporary total disability compensation. We therefore find it imperative to carefully examine the totality of the circumstances when such a situation exists." In other words, the employee's honest belief that he had not violated the policy could preclude him from being found to have voluntarily abandoned his job.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
