Two recent cases discuss the appropriate standard of proof, progressive discipline and just cause

Two recent cases, reported by Minnesota's Bureau of Mediation Services, address the question of the appropriate standard of proof in a discharge case.

In Hennepin Healthcare System, Inc., grievant had been dismissed from his position as a Protection Officer in the Hennepin County Medical Center, allegedly for striking a patient. At the arbitration hearing, the Union argued that the Medical Center should be held to a "clear and convincing evidence" standard in its effort to prove just cause.

Arbitrator David S. Paull agreed, noting:

Since the issue is the propriety of Mr. Williams’ discharge, the appropriate standard of proof is, as the Union suggests, clear and convincing evidence. Pursuant to this standard, the County is obligated to supply sufficient proof to show that the existence of its assertions of fact is highly probable. The standard is equally applicable to the Union with regard to its affirmative allegations.

Finding that the Medical Center had met this burden is establishing the facts of the incident, Arbitrator Paull turned to the appropriateness of the penalty. While recognizing that
the parties had agreed on a system of progressive discipline, Arbitrator Paull nevertheless found the facts sufficient to warrant an exception to progressive discipline if the discipline otherwise met the standard of just cause. Concluding that it did, he observed:

First, the nature of the conduct was both inappropriate and flagrant. In striking the patient while all of his limbs were in restraints, Mr. Williams clearly violated the applicable rules and his training. There is sufficient evidence to connect Mr. Williams’ behavior with his state of mind. The record shows that Mr. Williams was angry about being called in on that afternoon. It is reasonable to conclude that he permitted his anger, at least in some substantial degree, to dictate his actions.
Second, the failure of Mr. Williams to admit to striking the patient does little to advance his case. The essence of a penalty reduction in a discharge case is the likelihood that the employee will recognize his error and take steps to correct it. The chance of this occurring is lessened, however, in cases in which the employee refuses to admit to the mistake.

Arbitrator Paull found grievant's failure to take responsibility for his actions, his past demonstrations of temper and the nature of the act outweighed his otherwise good record and, accordingly, denied the grievance.

In Minnesota Department of Corrections the grievant, a corrections officer, was dismissed for allegedly assaulting, while off duty, a person engaged in an argument with his sister. Grievant was charged with assault but was subsequently acquitted of this charge.

At the arbitration the Union sought to have the Arbitrator impose a "clear and convincing" standard of proof on the County, both because it involved a termination and also because it involved claims of criminal acts. Arbitrator A. Ray McCoy accepted this position, concluding:

The Union argues that the Employer should be required to meet the clear and convincing standard of proof that it had just cause to terminate the Grievant. The arbitrator believes that a clear and convincing standard of proof is appropriate. Imposition of the clear and convincing standard is often applied in recognition that discharge is the ultimate penalty that can be issued by an employer. Discharge, in an immediate and fundamental way, throws the employee’s life into disarray including future employment prospects. The arbitrator accepts that the Union wishes to impose a very onerous burden on the Employer to make sure the Employer resorts to discharge only in cases where the evidence is clear that the employee engaged in misconduct.

Notwithstanding this burden, however, Arbitrator McCoy found that the DOC had established just cause for dismissal. Initially he noted that the acquittal of the criminal charges did not translate to an absence of just cause. While there may have been reasonable doubt of defendant's criminal responsibility, the Union had not effectively countered the DOC's proof in the arbitration hearing. He wrote:

The arbitrator’s focus, however, was on determining whether the Employer provided clear and convincing evidence that it satisfied its’ contractual “just cause” requirement. In doing so, the arbitrator took great pains to identify any evidence proffered by the Union that demonstrated that the Employer’s evidence should not be relied upon. In other words, casting doubt or blaming someone else doesn’t have the same level of importance in the arbitral proceeding as it might in a criminal one. It was incumbent upon the Union to do more than merely cast doubt or blame others. While it is the Employer’s burden to prove just cause, the Union cannot simply sit back and say our version of the events is more believable. The Union will need to demonstrate that the evidence put forth at the hearing by the Employer is simply inadequate, unreliable, or just plain false.

Finding nothing in grievant's work history to mitigate the penalty of termination, and noting instead prior instances of untruthfulness, Arbitrator McCoy denied the grievance.

Similar issues are addressed in Conflicting views on the appropriate standard of proof in termination cases, Acquitted of criminal charges, but just cause for dismissal, Off duty misconduct, just cause, burden of proof and leniency, Burden of Proof, Racial Profiling, Untruthfulness - Arbitrator upholds termination of police officer, and Arbitrator rejects termination of Sheriff's deputy based on allegation of theft, but finds post termination shoplifting warrants suspension