November 14, 2012
Voluntary Abandonment of Work?

by Justice Paul E. Pfeifer

LaRon Brown was injured in 2003 while working for a company called Johnson Controls. Five years after his injury, Brown was fired for violating the company’s attendance policy. His subsequent filing of a claim for temporary total disability compensation (“TTC”) brought his case before us – the Ohio Supreme Court.

The attendance policy at issue gave employees such as Brown 16 hours of unpaid leave every three months. These hours were deposited into a “bank” and, with a supervisor’s approval, could be used as needed. Generally, the exchange rate was one to one – an hour of bank time for an hour’s absence.

The use of bank time to cover illness was different. When an illness resulted in consecutive days off, an employee would be charged only eight hours of time for the entire absence if the employee called in each day of his absence and produced a doctor’s slip upon return.

Employees were prohibited from using more bank hours than they had on account. The policy specified that violators would be fired, and Brown signed an acknowledgment form indicating that he had received a copy of the attendance policy, had read it, and understood its contents.

In the first quarter of 2008, Johnson Controls charged the following withdrawals to Brown’s bank-hour account: three hours on January 30; eight hours on January 31; eight hours on March 10; and eight hours on March 11.  Because Brown had exceeded the number of hours that he had on account, he was fired.

In a grievance filed with his union, Brown claimed that Johnson Controls had miscalculated the number of bank hours used, but he did not prevail.

Brown later filed a motion for TTC, alleging that after his dismissal, he had become temporarily and totally disabled by injuries suffered while working. At the hearings before the Industrial Commission of Ohio – which handles such matters – the character of Brown’s termination was debated. Johnson Controls maintained that the dismissal constituted a voluntary abandonment of the former position of employment. If a person voluntarily abandons his position, it bars the awarding of TTC.

The company argued that Brown’s discharge was similar to the situations in two other cases decided by our court, because Brown’s discharge arose from his violation of an acknowledged written work rule. Brown denied that his discharge amounted to a voluntary abandonment. He insisted that he had not violated the work rule at issue because his withdrawals had in fact not exceeded his account balance.

Brown claimed that Johnson Controls should not have charged three hours to his account on January 30 because he was at a company-ordered medical exam related to his claim. He also argued that he should have been charged just eight hours total for March 10 and 11 – not Johnson Control’s 16 – because those sick days were consecutive and the form that he produced requesting TTC, signed by a doctor, served as the required doctor’s slip.

Return of those 11 hours would bring his quarterly withdrawal to 16, equal to the number of hours he had in his account. Johnson Controls didn’t challenge Brown’s claim on the January 30 hours, but it stood by its assessment on the 16 hours for March 10 and 11.

Brown alternatively tried to disavow understanding the bank-hour protocol. Relying on Brown’s signed acknowledgment that he had read and understood the attendance policy, a Commission staff hearing officer rejected this argument and devoted her discussion to that issue. There was no mention of the eight disputed hours: the order from the staff hearing officer simply concluded that Brown had violated the rule in question.

Brown then turned to the court of appeals, alleging that the Commission had abused its discretion in finding that his termination barred TTC. The court of appeals concluded that the Commission had an affirmative obligation in every termination case to evaluate whether just cause for discharge had existed and recommended that the case be returned to determine whether Brown’s bank-hour withdrawals had been properly calculated. The court held that the deliberate misconduct necessary to support a finding of voluntary abandonment could not be imputed to Brown unless it was clear that he had actually violated the policy.

After that, Johnson Controls filed an appeal that brought the case before us. In previous, similar cases we have determined that an employment separation is deemed voluntary when it is initiated by the claimant for reasons unrelated to the industrial injury.

Although it is the employer that formalizes the employment separation when a worker is fired, when a claimant voluntarily misbehaves, he tacitly assents to the consequences.

Brown argued that his discharge couldn’t be considered voluntary because he didn’t engage in prohibited conduct or didn’t do so knowingly. At his Commission hearing, Brown asserted that his bank-hour withdrawals exceeded his available balance only because Johnson Controls improperly charged him with 16 hours for consecutive sick days.

This argument, in turn, raised the issue of whether a previously submitted disability form was a valid doctor’s excuse for purposes of the consecutive-sick-day exception to the bank-hour policy.

The issue of the disability form was critical for two reasons. First, if the form was found to be a valid doctor’s excuse, it would support Brown’s assertion that he satisfied the requirements of the consecutive-sick-day exception and should have been charged just eight hours for his absence. This determination would affect Johnson Controls’ bank-hour calculation.

Second, even if the disability form were found to be inadequate, a good-faith belief that it satisfied the rule’s requirement could support Brown’s alternative claim that his violation of the rule was neither knowing nor deliberate.

The Commission’s hearing officer, however, discussed none of this in her order. The omission is unacceptable. In previous cases we have held that it is “imperative to carefully examine the totality of the circumstances” in such situations.

Because such an examination did not take place, we concluded – by a seven-to-zero vote – to vacate the Commission’s order and return the case for further consideration and an amended order.

EDITOR'S NOTE: The case referred to is State ex rel. Brown v. Hoover Universal, Inc., 132 Ohio St.3d 520, 2012-Ohio-3859. Case No. 2011-0127. Decided August 30, 2012. Opinion Per Curiam.