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by Andrew P. Morriss
Employers who adopt progressive discipline policies
often find themselves in a bind. Unless the discipline policies
are carefully drafted, employers may find that they can't fire an
employee without first following intermediate steps -- even in cases
where the employee's behavior is egregious enough to warrant immediate
discharge. A recent Wyoming Supreme Court decision however approves
language in a progressive discipline policy that preserved the employer's
ability to immediately terminate an employee who showed up to work
with alcohol on his breath.
Hiram Burbank worked in various positions for
Wyodak from 1975 to 1997. His last job was as a mechanic at Wyodak
Mine Management. After passing his final welding test on Dec. 11,
1997, Burbank went to a bar to celebrate with several co-workers.
At 5:30 the following morning he called and asked to take a personal
day; when this request was denied, he reported for work.
After two foremen smelled alcohol on Burbank's
breath, the safety director sent him to a local hospital for a drug
and alcohol test. Burbank tested positive for alcohol on a Breathalyzer
and was suspended pending the results of a urinalysis. When the
urinalysis came back positive for alcohol, an investigation was
conducted and a meeting was held between Burbank and Wyodak representatives.
Burbank was terminated on Dec. 17, 1997.
You didn't give me a chance
Wyodak had an employee handbook that provided
for a "positive discipline" program, a drug and alcohol policy,
and a specific provision on discharge outside of the positive discipline
program. Burbank sued Wyodak, alleging that the employee handbook
was an implied contract and that Wyodak breached that contract by
discharging him without following the "positive discipline" policy.
The Wyoming high court had to determine whether
"the contract unambiguously provides that Wyodak may summarily discharge
an employee who tests positive for alcohol while at work, without
following the steps outlined in the progressive discipline procedure."
If the contract was unambiguous, the court could rule in favor of
Wyodak as a matter of law. If the contract was ambiguous, a jury
would be needed to determine its meaning.
The court rules in favor of Wyodak, holding that
the language was unambiguous. Further, regardless of the fact that
certain sections of the handbook claimed steps had to be followed,
the employer also maintained the right to act according to it own
discretion.
According to the court, the "Positive Discipline"
policy was a straightforward articulation of progressive discipline
because it set out goals for discipline:
- "Emphasize correcting the problem rather
than punishing the offender";
- "Maintain the employee's dignity and
self-respect";
- "Provide for increasingly serious steps
if the problem is not resolved"; and
- "Result in the employee's changing his
behavior and becoming a good performer."
"Steps for Positive Discipline" were also
clearly set forth in the handbook: "When Mine Management, after
investigation, determines that cause exists, it is the Company's
policy to apply the following disciplinary step; bearing in mind
that Mine Management reserves the right to accelerate discipline
based upon the severity of the offense requiring discipline and
the employee's past work performance:
- Oral Reminder
- Written reminder
- Decision Making Leave
This portion of the policy also provided examples
of behavior that would result in discipline, including "reporting
to work under the influence of intoxicants, drugs, or other controlled
substances."
In a separate section, the "Drug and Alcohol
Policy," Wyodak explained that an employee who tested positive for
drugs or alcohol "will be suspended immediately without pay pending
further investigation and may be discharged."
Finally, in the section called "Discharge," Wyodak
outlined that "[d]ischarge is not a step of the Positive Discipline
system. Discharge will normally occur after all the steps have been
taken and there is no change in performance or behavior. It also
occurs when an employee commits an act so serious that continued
employment cannot be accepted... You may be discharged for violating
any of the rules contained in this Handbook."
You're contradicting yourself
Burbank's main argument was that by including
the "violation of the drug and alcohol policy" examples in the "Positive
Discipline" section, it was implied that progressive discipline
would be applied in such cases. The court finds that while that
assumption is correct, it is also correct to assume that the option
to move directly to discharge, as outlined in the "Steps of Positive
Discipline" section, is also valid.
"In determining whether a contract is capable
of being understood in only one way, we consider the contract as
a whole, reading each part in light of all other parts and giving
meaning to all of the language used if that can be done and a reasonable
construction achieved. We presume that a particular provision is
included in the contract for a purpose and strive to avoid a construction,
which renders any provision meaningless. Provisions which seem to
conflict are to be reconciled where possible so that neither provision
is nullified. Common sense and good faith are the leading characteristics
of contract construction."
In fact, although the reprimand route was not
taken, Wyodak still followed its own rules by suspending Burbank,
holding an investigation during that time, and holding the meeting
at which Burbank was discharged.
CASEFACTS
Court: Supreme Court of Wyoming
Date: Oct. 12, 2000
Citation: Burbank v. Wyodak Resources Development Corp., No. 99-291,
2000 WL 1511201
This article is courtesy of HRWire. All rights reserved.
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