By Jim Cline and Jordan Jones
In City of Oakland Park, the arbitrator held that there was not just cause to discharge a Florida firefighter for using marijuana while off-duty. The arbitrator cited the firefighter’s excellent work history and other mitigating circumstances.
The firefighter had used marijuana while off-duty and was later discharged. The arbitrator first addressed the issue of on-duty versus off-duty conduct. He agreed with the employer that such conduct could be subject to discipline.
The arbitrator explained that while in general an employee may not be disciplined for his or her off-duty conduct, “there is a significant exception where it is established that an employee’s misconduct off the premises can have a detrimental effect on the employer’s reputation or inability of other employees to work with the employee involved.” In addition, the arbitrator noted that “[i]n the public sector, certain positions are held to such a high standard [e.g., public safety employees] that the employee’s conduct off-duty can have a detrimental effect on the employer’s ability to operate effectively.” For discharge and discipline cases resulting from off-duty conduct, the arbitrator described a three-pronged test to evaluate whether just cause existed for the disciplinary action.
First, the existence of sufficient proof that the employee engaged in the conduct for which he was disciplined . . . . Second . . . whether the misconduct was of a nature that had an adverse impact on the public employer’s ability to operate efficiently and effectively . . . . Third . . . the arbitrator must determine whether the employee’s conduct warranted the particular discipline imposed.
The union stipulated to the first-prong of the just cause test, that the firefighter had used marijuana while off-duty. In regards to the second-prong of the just cause test, the arbitrator stated that “due to the nature of Grievant’s position as a safety-sensitive employee, the City had a legitimate interest in Grievant’s off-duty use of marijuana in that it could . . . affect his competence to perform his duties . . . [and] cast . . . a negative light on the Department . . . .”
The arbitrator held that discharge in this case was nonetheless not warranted, due to the firefighter’s good work history and other mitigating circumstances. The firefighter had been a nine-year veteran with a “solid employment record” and he had passed several drug tests during that time period. The firefighter was also facing several stressful events in his personal life at the time of his drug use such as his in-laws moving into his home, his mother-in-law suffering from Alzheimer’s disease, the firefighter’s wife experiencing some health issues, and he himself had been experiencing elevated heart rates. The firefighter testified that he attends a family support group to cope with some of these issues.
The arbitrator noted that the just cause analysis also takes “into consideration to what extent the imposition of discipline may have a rehabilitative effect.”
An isolated mistake should not end the career of an individual who has but for this incident, demonstrated competence and commitment to his profession especially where there is no evidence that the mistake actually affected the performance of his duties, caused damage to the Employer or anyone else.
The arbitrator held that the firefighter should be reinstated after passing a drug screen within three days of coming back to work and that he would be subject to a bi-weekly drug test for the next two years at his own expense. In addition, the firefighter would not be receiving any back pay.
Predicting the outcome of such cases is difficult and arbitral views on this subject, like that of the larger society, are evolving. It is doubtful that this would have been the same result had the grievant been a law enforcement officer rather than a firefighters. Public safety personnel are held to a high standard, but the standard for off-duty criminal conduct for firefighters is lower than it is for cops. In any event, in the past it is not likely other arbitrators would have reached this result. In the future, this result may become more common.
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