A look at violating workplace policy

On July 20, 2010, Elana Parraz was injured while working at Diamond Crystal Brands, Inc. She sought treatment the following day and was placed on restricted work duties. On July 27, she filed a worker’s compensation claim which was allowed for lower back strain. Diamond Crystal accommodated her restrictions and she returned to light-duty work.

At Diamond Crystal, Parraz was employed under a union contact that contained a point-based attendance policy: an employee accumulated points for each instance of tardiness or absence from work, ranging from one-half to two points. The union contract explained the point system in detail – an employee who receives 14 points is terminated. Parraz acknowledged that she received a copy of the attendance policy.

On the date of her injury, Parraz already had 10.5 attendance points. By September 9, 2010, she had accumulated 12 points – none were attributed to her injury – and, in accordance with the policy, the company issued a final written disciplinary warning. On February 11, 2011, Parraz was terminated when she accumulated her 14th point.

On February 14, 2011, Parraz filed for temporary-total-disability (“TTD”) compensation. A hearing officer with the Industrial Commission of Ohio – which handles such matters – determined that Parraz had been terminated for violating a written work rule; thus, she had voluntarily abandoned her employment and was not eligible for TTD compensation.

Based on her statement at the hearing, Parraz’s absence on February 3 was due to illness and her tardiness the next day was because of a flat tire. The hearing officer rejected the argument that her injury caused her termination.

After that, Parraz filed a complaint with the court of appeals. She argued that although her employer had the right to terminate her under the attendance policy, her absences were negligent, not intentional, and should not bar TTD compensation.

The magistrate who reviewed her case determined that the evidence demonstrated that Diamond Crystal had satisfied its burden of proof that Parraz was terminated for violating a written work rule. The magistrate cited Parraz’s attendance problems before her injury and the lack of contemporaneous medical evidence that subsequent absences were the result of her injury.

Thus, the magistrate concluded that the Industrial Commission did not abuse its discretion when it denied her request for TTD compensation.

In denying her complaint, the court noted that Parraz was aware of the attendance policy, routinely violated it, and had accumulated most of her points before her injury. The court determined that her repeated absences demonstrated an indifference to workplace policies. Therefore, the absences were sufficient to support a finding for voluntary abandonment.

After the court of appeals ruling, Parraz’s case came before us – the Ohio Supreme Court – for a final review. To be entitled to the relief that she sought, Parraz had to establish that she has a clear legal right to relief and the Commission has a clear legal duty to provide it. To do so, she had to demonstrate that the Commission abused its discretion, meaning that the Commission’s decision was rendered without “some evidence” to support it.

Parraz didn’t dispute that she had accumulated 14 points and was subject to termination under the union contract. Instead, she argued that the Commission had no evidence that she intentionally engaged in conduct that she knew would lead to termination; rather, her tardiness and absences were not intentional.

Our court has held that an employee’s firing can constitute voluntary abandonment of employment because discharge “is often a consequence of behavior that the claimant willingly undertook, and may thus take on a voluntary character.”

A discharge may constitute a voluntary abandonment of employment when it is the result of “the claimant’s violation of a written work rule or policy that (1) clearly defined the prohibited conduct, (2) had been previously identified by the employer as a dischargeable offense, and (3) was known or should have been known to the employee.” This comports with the underlying principle that “an employee must be presumed to intend the consequences of his or her voluntary acts.”

An employee’s violation of a work rule need not be willful or deliberate, but merely a voluntary act that the employee knew may lead to termination. As to negligent or careless actions that result in termination, “there may be situations in which the nature or degree of the conduct, though not characterized as willful, may rise to such a level of indifference or disregard for the employer’s workplace rules/policies to support a finding of voluntary abandonment.”

These cases are fact driven and must be determined on a case-by-case basis. In this case, Parraz was aware of the attendance policy in her contract. She had a history of attendance problems prior to her injury. She was warned of the number of points she had accumulated and was aware that she was close to the mandatory number for discharge.

Consequently, we agreed that the Commission did not abuse its discretion when it determined that her termination was the result of a voluntary abandonment that precluded payment of TTD compensation.

In addition, Parraz failed to demonstrate a causal relationship between her injury and the loss of earning she hoped to replace with TTD compensation. Parraz did not provide any contemporaneous medical evidence to establish that her absences or tardiness that resulted in termination had been caused by her injury.

Finally, Parraz argued that the employer had the burden to prove that she voluntarily and intentionally engaged in misconduct that she knew would result in her discharge. She maintained that there was insufficient evidence to support that conclusion; thus, Diamond Crystal failed to meet its burden of proof.

We disagreed. As the court of appeals concluded, “the burden of proof was on Diamond Crystal to establish that Parraz violated a written-work rule she knew or should have known would result in her termination. Diamond Crystal did.”

Parraz failed to establish that the Commission abused its discretion when it denied her request for TTD compensation. We therefore affirmed – by a six-to-one vote – the court of appeals’ judgment.

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