Wongful termination West Virginia

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Wongful termination West Virginia

Post  CATMANDO8426 on Sun Oct 11, 2009 12:17 am

A union member was suspended when he reported to work on August 3rd 2009, the employer told him that the term of the suspension was pending the outcome of an investigation into a workers compensation claim he had filed. On August 12th the member received a letter telling him that his employment was being terminated for attempting to wrongfully obtain workers compensation benefits after the insurance provider denied the claim. The employee promptly sough legal counsel and has appealed the decision.

This issue concerns a workplace accident the occurred on or about June 12th, 2009. The employee injured his right wrist when a machine he was working on was activated by another employee. The injured employee continued to report to work every day and performed his regular duties despite the injury that continued to grow worse as time went on. He went to the doctor on June 24th 2009 after it became apparent that the injury was not going to heal on its own. He was requested and was granted light duty as well as the use of a wrist splint given to him by the physician.
The employee continued to work every day with the injury following the prescribed treatment that unfortunately were not successful in treating the condition. The employee was referred to a bone and join specialist and was treated with a shot of Cortisone on July 28th 2009. The specialist advised him to take a few days off to allow the medication to take full effect and ordered him back to work on Monday August 3rd 2009.


The company asserts that the employee had informed them that the injury was sustained while using a tiller in March 2009. The employee admits an injury to the right arm however states that this injury involved his upper forearm/elbow and that the wrist was not involved.

Under our compensation insurance plan an employee must be off work for a period of at least seven days before qualifying for payment of benefits. We also have a heath insurance plan that would cover all but a small amount of the doctors fees and medications involved. In my mind it makes no sense to have gone to all the trouble of going though the claims process to avoid so small an amount of money.

I should also mention that this person is not the most popular individual in the eyes of the company. He was asked to and did testify against a company manager during an unemployment compensation hearing after one of his coworkers was fired. He also diligently files grievances over any infraction of our collective bargaining agreement. He also filed a disability discrimination complaint against the company in March of 2009. I believe that this is a retaliation issue.

A grievance was filed on August 12th, 2009 once we were notified that the employee had received a termination letter. In the body of the case i wrote: On August 3rd 2009 the employer suspended and later terminated ***** ********* after falsely accusing him of an infraction against the company. Mr. ********* is seeking reinstatement to his previous position and salary, without loss of seniority, and is also seeking back pay for all lost time caused by this incident."
The employee also submitted as evidence a signed statement from the coworker who started the machine. This statement confirms that the injury happened during working hours and on company property.

I feel that this will go in the employees favor however I have questions that i would rather not ask my union superiors for fear of appearing uninformed.

A) Was it legal for the employer to terminate the employee before the appeals process in the compensation claim was complete.

B) Is the appeals process is successful and the claim is proven to be valid could the employee seek a wrongful termination complaint to the courts even if the grievance process is successful.

C) Are we obligated to take this issue to arbitration on the request of the employee despite an indication that doing so would be a futile effort.



Thought I would toss this one out to you guys and see what you all think. At this point the grievance is at step three and the next step is arbitration.
I think they saw an opportunity to take down a stand up guy and did it but ill never prove that im sure.
No
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Re: Wongful termination West Virginia

Post  JoeC (McGruff) on Sun Oct 11, 2009 12:36 am

Did the employer terminate for not filing the injury report timely? What is the contract language regarding accident reporting?
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Re: Wongful termination West Virginia

Post  CATMANDO8426 on Sun Oct 11, 2009 12:47 am

No language present in contract regarding accident reporting. Accident was reported verbally to the supervisor on duty on the date the incident occurred June 12th 2009. The employee filled out a report at the request of the company after he sought medical treatment after June 24th 2009. In his words it didnt hurt that bad when it happened, it was sore that evening and just got worse from there."
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Re: Wongful termination West Virginia

Post  JoeC (McGruff) on Sun Oct 11, 2009 12:54 am

Let me see if I got this straight the company terminated his employment for what they perceive as filing a fraudulent claim? If the contract is silent on accident reporting what is the company policy regarding filing an accident report? Was the company policy followed?
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yes

Post  CATMANDO8426 on Sun Oct 11, 2009 1:10 am

The company handbook requires that accidents be reported within 24 hours of the occurrence. In this case the policy was upheld insomuch that the accident was reported to the supervisor on duty right after it happened. The accident report was not filed until the employee went to the doctor and actually filed a comp claim. But that happens all the time, also other similarly situated employees who filed comp claims that were denied as non work related injuries were not subjected to disciplinary action.
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Re: Wongful termination West Virginia

Post  JoeC (McGruff) on Sun Oct 11, 2009 3:04 am

Okay since he has an attorney your job as the shop steward is to grieve it under the discipline policy. Since the termination does not rise to just cause, and there should have be some type of investigation before the termination.
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Re: Wongful termination West Virginia

Post  CATMANDO8426 on Mon Oct 12, 2009 1:31 am

The only investigation was to review the insurance providers denial of the claim. Their denial was based on statements given by members of management. At which point his employment was terminated, and the grievance process began. His lawyer was retained only to contest the decision by the insurance company. Other employees in the same job also had claims denied however did not face any adverse action on behalf of the employer.
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Re: Wongful termination West Virginia

Post  JoeC (McGruff) on Mon Oct 12, 2009 1:45 am

Well thats about all you can do at this point is initiate the grievance processes.
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Re: Wongful termination West Virginia

Post  Eric on Tue Oct 13, 2009 3:20 am

CATMANDO8426 wrote:A union member was suspended when he reported to work on August 3rd 2009, the employer told him that the term of the suspension was pending the outcome of an investigation into a workers compensation claim he had filed. On August 12th the member received a letter telling him that his employment was being terminated for attempting to wrongfully obtain workers compensation benefits after the insurance provider denied the claim. The employee promptly sough legal counsel and has appealed the decision.

This issue concerns a workplace accident the occurred on or about June 12th, 2009. The employee injured his right wrist when a machine he was working on was activated by another employee. The injured employee continued to report to work every day and performed his regular duties despite the injury that continued to grow worse as time went on. He went to the doctor on June 24th 2009 after it became apparent that the injury was not going to heal on its own. He was requested and was granted light duty as well as the use of a wrist splint given to him by the physician.
The employee continued to work every day with the injury following the prescribed treatment that unfortunately were not successful in treating the condition. The employee was referred to a bone and join specialist and was treated with a shot of Cortisone on July 28th 2009. The specialist advised him to take a few days off to allow the medication to take full effect and ordered him back to work on Monday August 3rd 2009.


The company asserts that the employee had informed them that the injury was sustained while using a tiller in March 2009. The employee admits an injury to the right arm however states that this injury involved his upper forearm/elbow and that the wrist was not involved.

Under our compensation insurance plan an employee must be off work for a period of at least seven days before qualifying for payment of benefits. We also have a heath insurance plan that would cover all but a small amount of the doctors fees and medications involved. In my mind it makes no sense to have gone to all the trouble of going though the claims process to avoid so small an amount of money.

I should also mention that this person is not the most popular individual in the eyes of the company. He was asked to and did testify against a company manager during an unemployment compensation hearing after one of his coworkers was fired. He also diligently files grievances over any infraction of our collective bargaining agreement. He also filed a disability discrimination complaint against the company in March of 2009. I believe that this is a retaliation issue.

A grievance was filed on August 12th, 2009 once we were notified that the employee had received a termination letter. In the body of the case i wrote: On August 3rd 2009 the employer suspended and later terminated ***** ********* after falsely accusing him of an infraction against the company. Mr. ********* is seeking reinstatement to his previous position and salary, without loss of seniority, and is also seeking back pay for all lost time caused by this incident."
The employee also submitted as evidence a signed statement from the coworker who started the machine. This statement confirms that the injury happened during working hours and on company property.

I feel that this will go in the employees favor however I have questions that i would rather not ask my union superiors for fear of appearing uninformed.

A) Was it legal for the employer to terminate the employee before the appeals process in the compensation claim was complete.

B) Is the appeals process is successful and the claim is proven to be valid could the employee seek a wrongful termination complaint to the courts even if the grievance process is successful.

C) Are we obligated to take this issue to arbitration on the request of the employee despite an indication that doing so would be a futile effort.



Thought I would toss this one out to you guys and see what you all think. At this point the grievance is at step three and the next step is arbitration.
I think they saw an opportunity to take down a stand up guy and did it but ill never prove that im sure.
No

1) The employee followed all of the employer’s procedures for reporting an accident. It is plain that the employers proffered reasons for the termination based on their explanation was a pretext. I am taking everything you said as uncontested fact in making my determinations.

2) The employee’s access to a judicial forum is going to be based on the scope of the contractual arbitration clause. If the termination is arguably subject to the contractual grievance procedure a court will defer to that procedure both on procedural and substantive grounds.

3) A union is not obligated to take a grievance to final binding arbitration. The unions duty of fair repetition is satisfied if the union processed the grievance in a non perfunctory manner with no hint of animus against the member. The grievance belongs to the member and the arbitration procedure belongs to the union. A union is granted great deference by the NLRB and courts in determining whether or not to go to final binding arbitration on any matter covered by a collective bargaining agreement.

If you have any questions please let me know.

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