“Mining for Gold–Part 2”

“Mining for Gold–Part 2”

MINING FOR GOLD© (Cont'd)

WhistleblowerWhen Abe received the note on Monday morning, he exploded, "What the hell is this noise!"  Sherm was already at work down in the mine, but when he emerged for lunch Abe cornered him.

"Sherm, what the hell do you mean, taking company equipment off the premises and telling the guard I gave you permission?  Get that stuff back here immediately."

"Sorry, Abe, but I don't have to."

Abe couldn't believe his ears.  "Listen, Sherm, you not only have to, if you don't your ass is fired!"

"Fine, go ahead and see what happens," Sherm dared. 

Sherm held fast and refused to return the equipment, so Abe processed Sherm's termination and filed a criminal suit against him for theft.  Sherm countered with a complaint under the "retaliation provision" of the Mine Safety Help Act.  He claimed that the missing equipment was a subterfuge for the real reason for firing him.  Sherm contended that his complaint to the county health department about the urinals made management mad, and that's why they fired him.

By the time the case went to court, the company had closed its operations.  Nevertheless, corporate was obliged to respond to the suit.  Despite management testimony and the best efforts by company attorneys, the company lost the case.  Stunned by its loss, the company grimly faced the judgment entitling Sherm to all back pay and related benefits up to the date of closing.  Then it dropped its complaint for reimbursement of the stolen welding equipment.  At this point, the issue was moot because the welding equipment would have been sold along with all other equipment for pennies on the dollar at the time of closing.  So Sherm wound up walking from the courtroom that day receiving thirteen months’ salary, plus a sizeable inventory of welding equipment–all compliments of the company. 

PANEL COMMENTS

The company should have involved the police at the onset of the incident.  If the police had been called immediately, the company would have at least recovered its equipment.  At best, Sherm's successful prosecution would have eliminated the possibility of his winning the appeal over the termination. 

LEGAL COMMENTS

While this story is difficult to believe, it does highlight the perils of litigation and the concomitant need for employers to adopt and implement a preventative labor relations policy rather than to be merely reactive.

In many states today, even employees who can be discharged at the employer's will cannot be discharged for reasons that violate public policy (e.g., refusing to lie under oath to conceal illegal company practices) or in retaliation for exercising legal rights (e.g., making safety complaints).

In this case, the employer had a legitimate basis for disciplining the employee for work-related factors (theft and insubordination) wholly unrelated to his exercise of rights (complaining to the health department).  So, in theory, the employer had the right to discharge this employee.  In reality, however, employers must remember that the question the jury will decide is who to believe–the employee or the company.  Because the outcome of the case may hinge on the credibility issue, appropriate documentation is critical, and the company must scrupulously avoid even the appearance of retaliation.

Excerpted from Outragoues Conduct:  Bizarre Behavior at Work©

 

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