By Jordan L. Jones
In Village of Key Biscayne, the Arbitrator held that the Fire Department (“Department”) did not have “just cause” to discharge a Fire Captain (“Grievant”), despite his failure to respond to a call for assistance.
After receiving a call from a citizen who needed assistance at her home, Firefighter Brandt provided the Grievant with an address and no specifics pertaining to the request and said an alarm would be forthcoming. When the alarm never sounded, the Grievant assumed the situation had resolved itself, but later found out the citizen never received help.
The Department concluded that the Captain had committed “gross misconduct” when he violated procedure by failing to send a crew to respond to the callout. The Department also contended that the decision to terminate the Captain was reinforced by the his past incident of allowing employees to play tennis while on duty.
The Union argued that the Grievant did not commit “gross negligence” when he failed to respond to the citizen’s request for assistance because of mitigating factors. It also argued that it was improper for the Department to take into account the tennis incident in deciding to discharge the Grievant. Specifically, Section 4.1 of the tennis incident Settlement Agreement stated that “[t]his Agreement shall not serve as precedent for any other disciplinary decision(s) that the Village may take against [the Grievant] or any other Village employees.”
The Arbitrator found that although the firefighter failed to initiate a response to the call for help from the public, this did not rise to the level of “gross misconduct,” because there was no evidence that he engaged in intentional, deliberate, or willful misconduct.
“With the scant information available to the Grievant, the Grievant exercised his discretion and . . . his actions in waiting for the alarm were not unreasonable, and certainly did not rise to the level of gross misconduct.”
The Arbitrator also found that some fault should be placed on other people. “Immediately after the call to Fire Fighter [sic] Brandt . . . [the citizen] called 9-1-1 as she had been instructed . . . [and the] 9-1-1 call was improperly transferred . . . to the Village Police Department . . . .”
The Arbitrator also stated that the Department’s reference to the tennis incident was a violation of the Settlement Agreement. The Arbitrator held that:
In sum, the Department’s actions in failing to, first, investigate the improper dispatch of . . . [the citizen’s call]; second, implement a still alarm policy . . . ; and third, place the Grievant on administrative leave immediately upon learning the facts . . ., demonstrate that the Village has failed to sustain its burden of proving that the Grievant engaged in gross misconduct which would warrant termination.
The discharge was subsequently reduced to 30 days of suspension for simple negligence“for failing to dispatch a unit within a reasonable time whether an alarm was sounded or not, or alternatively failing to follow up with the resident to ensure that the situation had been revolved.”
Editor’s Note (Jim Cline): When an Employer alleges significant misconduct as the basis for a discharge, it must prove the charge. Here the Department was able to prove some degree of negligence, but not the more serious charge of “gross misconduct.” The Arbitrator applies the appropriate standard here, noting that “gross misconduct” involves some extent of “willfulness.” The Employer’s inappropriate attempt to prove “progressive discipline” by invoking a previous incident that was subject to a Settlement Agreement further doomed its case.
