NEPBA Attorney Tom Horgan obtains successful arbitration Decision on behalf of the Norfolk County Correction Officers, NEPBA Local 575 and the Grievant
On April 8, 2024 the Arbitrator issued a decision in favor of NEPBA Local 575 holding that the Employer’s decision to terminate the Grievant, CO XXX, on January 15, 2023, was not supported by just cause. CO XXX began receiving Workers Compensation Benefits after suffering an on-the-job knee injury. After being unable to return to work within one year of going out injured the Employer notified the Grievant that he would be terminated if he was unable to return to work. On October 29, 2022, the Union, on behalf of CO XXX, requested an extension of leave until January 15, 2023 along with medical documentation to support a likely return date by this same date. The Union’s request for an extended leave was denied without providing any rationale as to why the request was otherwise unreasonable and/or an undue burden on the Employers operations.
In issuing her decision on April 8, 2024 the Arbitrator specifically held, “the Employer breached its contractual just cause requirement to provide due process, fundamental fairness and a pre-termination opportunity to respond when it decided to terminate the Grievant’s employment, without seeking either further information to reconcile the perceived discrepancy between the surgeon’s January 15th return to work date and the late October 2022 physical therapy assessment or otherwise providing the Grievant with an opportunity to respond. The arbitral record indicates that the Employer relied on their own examination and review of the physical therapy materials and determined, using their years of human resources experience and knowledge of the nature of work performed by correctional officers, to decide that the Grievant “was not close to returning to work.”
My key concern is that is that the ultimate decision to terminate the Grievant’s employment was made without follow-up or engagement with the Grievant and/or treating medical professionals about the perceived discrepancy between the treating surgeon’s return to work date and the assessments contained within the physical therapy documentation.