By Anthony Rice
In City of Lorain, the arbitrator found the Ohio City had just cause for the termination of an EMT based on his voluntarily resignation to avoid prosecution of “office theft.”
Evidence shows the EMT abused sick leave twice when he fraudulently reported verbally, and in writing, that he was sick when he was not. At the hearing, the EMT admitted to using sick time for coaching high school track—he said coaching was volunteer work. He swore that he never took sick leave to work another job. However, the City investigated further after the hearing and discovered that he worked at the Cleveland Clinic—as a registered nurse—on December 23, 2010; the day he called in sick at the fire station. As a result, the City told the EMT he would be terminated for “office theft.”
The EMT asked if the City would consider resignation, thus preserving his spotless work record; the City said yes. The EMT prepared his one line letter of resignation. Because he was still emotionally distraught, he arranged for another firefighter to deliver it to the City’s office. Later he changed his mind and sought to rescind the resignation, something the City declined. A grievance ensued claiming that he had be “constructively terminated.”
At arbitration the Union argued the EMT was constructively terminated when he was given the choice to either resign or be fired. The arbitrator explained that when there is proof of voluntariness in the resignation there is just cause.
Courts [have] held that voluntariness is established where (1) the employee had an alternative to resignation; (2) the employee understood the choice; (3) reasonable time was given for the choice; and (4) the employee could select the date of resignation.
In this case, the arbitrator found voluntariness because the EMT voluntarily resigned, had access to union counsel during the decision-making process, knew alternative to resignation, understood the choice before him, the six days given was a reasonable time to make the decision, and he selected the date of resignation and wrote it himself.
