"My Life Fell Apart"

Every so often - far too often, really - a grievant who has been disciplined testifies, “My life fell apart.” This comes up in two ways. First, when the circumstances of their personal life have become so overwhelming that it leads to the conduct for which they are disciplined. Second, when the impact of their discharge has had a cascading effect that has resulted in them losing far more than their job. In either case, the arbitrator has to evaluate what role the information plays in the case.

Pre-discipline Issues

Death, divorce, addiction, illness, custody battles, housing challenges: these are very real and tragic conditions that people face all the time. Historically, the divide between these events and a person’s work life was a mile wide. If you missed work, it didn’t matter - you lost your job. Unionized workplaces with just cause dismissal protected employees somewhat, but repeated absenteeism for any reason was a pretty typical reason to fire someone.

As union contracts and federal and state laws evolved, employees began to see more protection for the events in their private lives that might impact their work life. Contracts added bereavement leave, modified duty, health coverage, Employee Assistance Programs (EAP), legal services, sick leave, and so forth. Legal protections for people with disabilities or a long or short term family/medical leave issue as well as “kincare” and sick leave requirements meant that employees facing hurdles at home were protected at work to some degree for the private challenges they faced.

When an employee in a discharge case claims that their personal life was the cause of the conduct that led to their discharge, it is hard not to be sympathetic. Sympathy is not a defense, however. Often, these discharges come at the end of a long progressive disciplinary process, where each prior warning has included a referral to EAP and information about FMLA. In the vast majority of these cases, the grievant did not avail himself of the resources in the CBA or the law to protect his job.

I very self-consciously used a masculine pronoun there because many of these cases involve men. That’s not to say that women do not have problems which impact their work; they are just more likely to use the resources available. Let me tell you about two similar cases with different outcomes.

A woman’s childcare issues were the cause of her absenteeism, resulting in her suspension and final warning. The problem? Her abusive husband kept disappearing at the times when he was supposed to take the child, leaving her alone to care for the child and causing her to miss work. By the time the case got to hearing, the woman had gotten childcare outside of the home and had not been absent since the last warning five months earlier. The employer was willing to reduce the final warning to a written warning and remove the suspension from her record.

In another case, a young man lived with his sister and her two very young daughters (6 months and 2 years). His sister would disappear for days and he would miss work caring for the children. He eventually lost his job after a very long, multi-step progressive discipline. He never told anyone he worked with what the problem was; he didn’t inform his union rep until the eve of the hearing. Because of the very specific language of the agreement, I had to uphold the discharge, but encouraged the employer to reconsider if the young man was able to demonstrate that his nieces were in a safe environment.

Union representatives should encourage grievants to get help as soon as possible after the discharge. If a person completes rehab, gets childcare, gets their car repaired, or starts therapy, and can articulate why their personal issues will no longer intrude at work, it’s possible that the employer or the arbitrator will consider that as a mitigating factor. What both expect is that the external problem, once addressed, will no longer impact the workplace. Employers should make sure that EAP and FMLA processes are clearly communicated and their use encouraged.

Post-discipline Issues

In some cases, the employee’s life falls apart after they are discharged. Because they have lost their livelihood, they lose their housing and car, are unable to pay child support or continue their health coverage. These are consequential effects of discharge, but arbitrators rarely award “consequential damages.”

Again, this is an area where a union rep should counsel an employee to mitigate their damages. They should apply for unemployment and begin looking for a new job, even at a lower rate of pay, as soon as possible. At the very least, the employee needs to understand their own obligation to mitigate; there’s no jackpot at the end of the rainbow. Similarly, an employer should consider whether opposing unemployment insurance for a terminated worker is a good idea. If the employer loses, they may face a substantial backpay award that the employee can’t offset because they were unable to find work or collect unemployment.

If the Union wants to show consequential damages, that will arise at the remedy stage. Arbitrators rarely take evidence about those damages at the hearing itself. Only after ordering reinstatement will an arbitrator consider the amount of the award. Most arbitrators remand the actual dollar amount to the parties to work out and only take evidence if the parties are unable to resolve it.

The key here is “Evidence.” The Union needs to put forward the specific dollar amounts that the grievant lost and make a legal and compelling case why the grievant suffered those damages. A terrible story, no matter how sympathetic, will not cause the arbitrator to award a windfall to a reinstated employee.

Housekeeping

In the next week or two, I am going to move this newsletter to a different hosting service called Ghost. I don’t think you’ll notice much of a difference, and you’ll have access, if you choose, to my newsletters on other topics. The name of the newsletter may change too but the content will remain largely the same. Thanks for reading!