Sunday, March 29, 2015

Award of back pay to firefighter who let certification lapse doesn't violate public policy

Grievant was employed as a firefighter by the City of Akron. His employment was terminated because of his failure to comply with the City Charter which required him to reside in the City. After grievant's termination, the Ohio Supreme Court upheld a State statute effectively abolishing residency requirements for municipal employees. The challenge to the statute ultimately upheld by the Supreme Court was being actively pursued at the time of grievant's termination.

Following the Court's decision, the City offered to reinstate grievant without back pay, an offer grievant and his union refused. The grievance was presented to an arbitrator in two stages. In the first the Arbitrator concluded that the termination was without just cause and ordered that grievant be reinstated and made whole for lost earnings. In a second hearing the Arbitrator determined the amount of back pay due was $251,421.01. The arbitrator concluded that had grievant provided better proof and documentation he was undoubtedly entitled to more.

The City filed an action to modify or vacate the back pay award. It challenged the award (unsuccessfully) on several grounds. One of the bases for the City's challenge was its claim that the award violated public policy. This public policy argument was premised on the City's claim that grievant had let his firefighter certification lapse for some period following his termination. The lower court, and now the Court of Appeals of Ohio, rebuffed this effort. The Court of Appeals noted:

In support of its position that the trial court should have vacated the back pay award on public policy grounds, the City directs our attention to various sources that require firefighters and EMTs to maintain certification as a condition of employment. The problem with this position is that the award at issue did not require the City to reinstate [Grievant] despite his lack of certification. Instead, the arbitrator awarded [Grievant] back pay for the period during which he had determined that the City had wrongfully terminated his employment. It is true that [Grievant] allowed his certification to lapse during a portion of this timeframe. This Court must emphasize two things, however. First, there is no documented and well-defined public policy that prohibits the payment of back pay to a wrongfully terminated firefighter whose certification lapsed during his unemployment. Second, and of equal significance in the context of this case, is the fact that the City cannot use the cloak of public policy to seek a review of the merits of the arbitration award. In determining whether an award should be vacated on public policy grounds, the inquiry is focused on the face of the award, and "[a] court is not authorized to revisit or question the fact-finding or the reasoning which produced the award."

The Court noted that testimony about grievant's duty to mitigate his damages and the circumstances under which he had let his certification expire had been presented to the arbitrator. The arbitrator, however, viewing the circumstances together with the "questionable legality" of the City's actions, determined back pay was warranted. 

In a decision here the Court affirmed the judgment of the lower court enforcing the award. 

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