Sunday, November 1, 2015

Arbitrator: Misconduct between initial termination and reinstatement no basis for post reinstatement termination

A Sheriff's Deputy for the Sagamon County Sheriff's Department was dismissed for alleged theft of two plants form a City park. That termination was submitted to arbitration. That decision is discussed in an earlier post (Arbitrator rejects termination of Sheriff's deputy based on allegation of theft, but finds post termination shoplifting warrants suspension). Approximately a year after the termination, and before a resolution of her grievance, grievant was accused of retail theft (i.e., shoplifting), and  entered a guilty plea to the charge. Thereafter Arbitrator McGilligan reversed the termination, but upheld instead a 30 day suspension for failure to follow Department policy on abandoned property, and a 60 day suspension for the post termination misconduct. The City challenged the award and the court remanded the dispute for reconsideration using a different  (lower) burden of proof, and found that the Arbitrator  improperly considered the shoplifting issue, which was not before him. In a subsequent award Arbitrator McGilligan again found the termination to be without just cause and again ordered her reinstatement subject to a 30 day suspension for failing to follow the department's policy on abandoned property  .

Grievant was reinstated and immediately put on administrative leave pending a departmental investigation of the retail theft issue. The Department again terminated grievant's employment. That termination was also grieved, and was submitted to Arbitrator Timothy Tobin for resolution.

The Department claimed that grievant was no longer effectively able to carry out her duties as a Deputy Sheriff, and that it "cannot have an officer on the streets attempting to enforce the law when she herself does not even follow the law."

Arbitrator Tobin rejected the Department's discipline. He concluded:

I find that the Employer did not shoulder the burden of proving that the Grievant's discharge on May 20,2015 was for just cause. It is impossible for an employer to discharge a non-employee for just cause.
The discharge cannot be upheld because the Grievant was not an employee on April 24, 2013, the day the retail theft in question was committed. 

He also found that the Department had also improperly considered the earlier claim of theft of plants since the grievant had been acquitted of that charge by a jury.  

IllinoisTimes reports on the decision (Cop-turned-thief ordered back to work) and links to Arbitrator Timon's award here.

Chicago Kent Law Review has a student note by Holly G. Eubanks (Expanding the After-Acquired Evidence Defense to Include Post-Termination Misconduct) discussing the issue of post termination conduct in employment litigation.

Update: According to press reports, the Illinois County court has vacated the award of Arbitrator Timon as contrary to public policy. Judge rules sheriff doesn't have to reinstate Sangamon County deputy fired after theft

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