Medical examiner’s performance-based firing DOA

September 6, 2016

Employment Law BookA county’s decision to skip a step of the contractual progressive discipline procedure nullified an employee’s termination for poor performance.

A medico-legal death investigator/technician with seven years of service was discharged for unacceptable performance.

According to the county, the grievant’s career could be summed up by, “Another mistake, another excuse.”

(Westlaw users: Click here for the Labor Arbitration Information System.)

The county said he had demonstrated an inability to carry out the basic functions of his position or follow office protocol. He compounded this by blaming others for his deficiencies, the employer claimed.

The union said the county failed to prove the grievant was a “bad” employee deserving of termination. In fact, the union argued, he had requested training in the one area of his performance considered unacceptable: writing reports.

The arbitrator ruled that the grievant was not discharged for just cause.

Initially, the arbitrator observed that the grievant’s technical skills – performing autopsies and anatomical dissections – were considered “excellent” and “phenomenal” by his superiors and co-workers. Although the grievant’s written reports contained errors, it was undisputed that prior to joining the county he had no experience in death-scene investigations and their associated documentation.

Furthermore, while receiving a written reprimand for unacceptable performance and warned that future problems could result in termination, the grievant was never suspended prior to discharge.

It was not known whether a suspension would have led to improved performance, the arbitrator concluded, finding the absence of such preliminary discipline fatal to the county’s position.

The grievant was reinstated with back pay and benefits.

Washoe County (NV) and Washoe County Employees Association, 44 LAIS 148, 2016 WL 797783