October 2001 Legal Update

COUNSEL'S CORNER
By: Louis D. Stober, Esq.
CSEA REGIONAL ATTORNEY

TERMINATION BASED UPON HEARSAY REVERSED

A common question raised by employees in disciplinary cases is what does the County have to prove to sustain discipline? While there is no "standard" answer, we do receive guidance as to what arbitrators look for in their decisions. One theme, that is clear, is that the County cannot discipline an employee, let alone terminate an employee, based upon hearsay alone. Recently, Stephen Walko, of my office, had the opportunity to represent a CSEA member in a termination case that brings this point home.

The employee in issue was terminated from the Medical Center based on allegations by two patients of inappropriate conduct. When the case went to arbitration, the patients did not testify, in fact, no one with any personal knowledge of the facts testified. The only witness called by the Medical Center was the person who allegedly investigated the incidents and obtained statements from the patients. The grievant testified in his defense that the incidents did not occur and that the allegations were fabrications.

In reversing the termination, the Arbitrator held that: "While hearsay is admissible in arbitrations, it cannot be the sole basis for the decision. The only evidence consists of those statements - clearly amounting to hearsay. In addition, one of the due process rights of a charged employee is to confront his or her accuser. In this matter, that did not happen. [the employee] (and his attorney) did not have the right to confront his accusers or to cross-examine these individuals."

In addition, we were able to show, through the Medical Center's witness, that the patients had histories of confusion, there were numerous contradictions in the statements, and even the Medical Center's investigator concluded that "there is no evidence to support [the patient's] allegation." The same was true of the second patient and the investigator's conclusion.

As a result, the employee was found not guilty of the charges and ordered reinstated to his former position with full back pay and benefits.

Therefore, if you are ever the subject of discipline, especially when it is based upon statements by persons who are not called to testify, the arbitrator will not base discipline on such statements alone. If you are disciplined, make sure to contact your CSEA representative immediately so that the disciplinary review procedure can be implemented.