Conflicting views on the appropriate standard of proof in termination cases

As noted in an earlier post here, Arbitrator Michael Rappaport upheld a grievance filed by a firefighter whose employment was terminated for alleged sick leave abuse. The Las Vegas Sun links to his award here. The firefighter was accused of planning in advance when he would take sick leave so that , combined with his vacation, he could take most of the summer off. In addressing the issue, Arbitrator Rappaport discusses his view of the appropriate standard of proof in a termination case. He notes:

In many cases a union will typically argue that the employer should have the burden of proof beyond a reasonable doubt. This is because the union will typically argue that a termination case is equivalent to capital punishment in the labor relations world. Conversely, employers often argue that the burden of proof in a termination case should simply be a preponderance of the evidence since a disciplinary case arises out of the collective bargaining agreement and, therefore, it is contractual in nature. In the Arbitrator’s experience, most arbitrators, including the present Arbitrator, reject both of those arguments and instead tend to regard the appropriate burden as clear and convincing. That is to say, an arbitrator wants to be clearly convinced that the grievant in a termination case committed the acts as alleged that would justify termination.

Arbitrator Rappaport concluded that while the Fire Department had raised suspicions regarding the issue, it had failed to meet its burden of proof.

He also noted that the case involved an allegation of moral turpitude, i.e. dishonesty, and that this further supported the need for a higher standard of proof “because upholding a termination under such circumstances not only is likely to result in loss of the job at issue, but could also brand the discharged employee as dishonest or someone who is not to be trusted when applying for any future employment.”

Unlike the arbitrator whose award was vacated in Decatur Police Benevolent and Protective Association Labor Committee v. City of Decatur , (discussed here), Arbitrator Rappaport made no finding that on a lesser standard the grievant engaged in the conduct alleged. In the Decatur case, the court found no support for the arbitrator’s application of a “clear and convincing” standard and vacated an award reinstating a police officer found, on a preponderance of evidence standard but not on a clear and convincing standard, to have engaged in domestic violence. The court noted “We are aware of no case, and no statute, that requires an allegation of misconduct in this context be proved by clear and convincing evidence because the misconduct may also be criminal and because the City seeks to discharge the officer.”