Progressive Discipline and Unemployment

Employees who have been terminated for just cause will be ineligible for unemployment compensation.  However, simply because some rule was violated does not necessarily mean the employer had just cause to terminate the employment relationship.  Many factors can influence whether there was just cause, including whether the employer had a progressive discipline policy and whether they followed that policy.

In the context of union contracts, inherent in the concept of "just cause" is a requirement that the level of discipline must match the level of misconduct, and that discipline can increase in severity if misconduct continues.  In the context of unemployment compensation, progression of discipline can also be an issue, though it may be tied more directly to whether the employer had a progressive discipline policy, and if so, whether and how they enforced that policy.

Progressive discipline policies often explain steps of discipline that an employee will be subject to based on the type of misconduct and discipline history for the employee.  The often start with a verbal warning and then escalate to some form of written warning, then suspension, and ultimately end in termination of employment.  Employers will frequently explain that progressive discipline steps can be skipped if the misconduct is particularly severe. For example, theft is often viewed as misconduct that can result in termination for a first offense.

The Fourth District Court of Appeals has held that, "Progressive disciplinary systems create expectations on which employees rely. Fairness requires an employee not be subject to more severe discipline than that provided for by company policy." Peterson v. Ohio Dept. Of Job & Family Serv., 2004 Ohio 2030, ¶ 23 (4th Dist.).   It has been widely accepted by the courts that, when an employer has an established, progressive discipline policy, it must follow it or there will not be just cause for termination.

As a result, employees who have been terminated should try to discover whether their employer had a progressive discipline policy, even if it was only kept in dusty binders in the manager's office.  Sometimes the first clue will be finding different discipline steps listed on the discipline forms.  That progressive discipline policy should reviewed to determine whether the employer followed their own policy.  If the employer did not follow their progressive discipline policy, there may be a good argument that it did not have just cause to terminate the employment relationship.

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