Archive for January, 2014

Act 10 Grievance Procedure – First Case Law? What is a termination?

Friday, January 10th, 2014

Remember Act 10? While the protests in Madison have subsided, the court cases continue.  One of the less publicized aspects of Act 10 was the enactment of Wis. Stat. 66.0509(1m) which required most local governments to create a grievance procedure to allow employees to appeal employee terminations, employee disciplinary actions, and workplace safety.  But the new state law did not define those terms.  When implementing the new state law, many local governments defined those terms themselves, often to exclude certain types of employee separations, such as voluntary quits, retirement, layoffs, and others.

Dodge County’s grievance procedure included exceptions for “termination of employment due to…lack of qualification…”  Dodge County employee Heidi Burden was employed in a position which had as one of its qualifications no operating while intoxicated convictions within the past 12 months.  Ms. Burden was convicted of operating while intoxicated and subsequently fired.  She attempted to grieve the “termination,” but the County said the grievance procedure wasn’t available to her because she was not qualified for the position.  She field suit in circuit court, which ruled in favor of Doge County, and she appealed.

The appellate case hinged on the meaning of the word “termination” and on whether Dodge County could unilaterally define the term, since the legislature had not done so.  The appeals court said no, Dodge County was not free to invent a definition for “termination.”  Instead, since the legislature did not choose to define the word, then the common ordinary understanding of the meaning of termination should apply.  The court turned then to a dictionary, and using that term decided that in the facts before them, a “termination” had occurred.  A person had a job, and was fired.  By plain language of the word in common usage, that was a termination.  Indeed, the very definition in the County’s ordinance said that termination does not include “termination due to…” and then listed various terminations that would not be subject to the grievance procedure.

Although the Court narrowed their holding to the facts before them, the logical implication is that local governments are not free to simply define termination as they see fit, but must look to the plain, ordinary definitions of the word.  They can still define it to not include things like a voluntary quit or a retirement, but there will be grey areas if a local government defines “termination” to exclude actions which, arguably, are “terminations” in the common, ordinary meaning of the word.