More Fallout from Wisconsin Act 10: Public Employee Terminations

December 1, 2013

The Wisconsin Court of Appeals issued a decision on December 5, 2013, dealing with a grievance procedure that addressed public employee terminations. Contained in Wisconsin Act 10 was a provision which required local governments to create “(a) grievance procedure that addresses employee terminations” and which identifies the elements the grievance procedure must contain.

Dodge County established a grievance procedure in response to that statute. It adopted a policy intended to comply with the provisions of Act 10 and set forth a grievance procedure concerning workplace safety, discipline and termination. The policy defined an “employee termination” as action taken by the county to terminate an individual’s employment for disciplinary or for quality of performance reasons. However, the term did not include such actions as a voluntary quit, position elimination, or a “….termination of employment due to….lack of qualification…”

Following adoption of the policy, a county employee was terminated. The employee had been employed in a position that required the individual to meet county “driver qualifications.” One of the criteria set forth was a requirement that there could be no conviction of operating a vehicle while intoxicated within the past twelve month period. The employee was in fact convicted of operating while intoxicated; and therefore, the county ended the employment three days later. The employee sought to “grieve” the termination. The county refused to implement the grievance procedure because the termination of employment was “….due to…lack of qualification,” which was an exclusion from the definition of “termination of employment.” Needless to say, a lawsuit arose. At the trial court level, the trial court found in favor of the county. The terminated employee appealed.

The court of appeals indicated the outcome of the case depended upon the proper interpretation of sec. 66.0509(1m), Wis. Stats., requiring the county to create a grievance procedure. Specifically, the court was required to construe the phrase “employee termination.” The statute does not define “termination,” and therefore, in accordance with standard rules and statutory construction, the court looked at the dictionary definition of termination. The dictionary defines termination as a form of the verb “to terminate,” which in turn means “to discontinue the employment of; dismiss.” There was no question the county discontinued the employee’s employment based upon allegations that she was no longer qualified to do her job.

The county acknowledged that the action it took was a “termination,” but not the type of termination that the statutory standard was intended to cover. The county argued the Wisconsin legislature did not intend to permit employees to grieve all types of terminations. For example, an employee who voluntarily quit or retired, is terminating employment; and that is not subject to a grievance procedure. The Court of Appeals refused to recognize this argument by noting it assumed all employee separations are “terminations” within the meaning of the statute. However, the term “termination,” generally means a dismissal; and the term is not commonly used to “describe situations where an employee voluntarily quits or retires.” These are separations from employment, and do not involve the concept of “dismissal.” Accordingly, the county was required to process the grievance because the termination in question was a dismissal.

Like Dodge County, many municipalities throughout the state of Wisconsin have adopted grievance procedures. In light of this decision, it is necessary for such municipalities to review such procedures to assure they are in compliance with applicable law.

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For more information about "More Fallout from Wisconsin Act 10: Public Employee Terminations," contact Timothy D. Fenner at tfenner@axley.com or 608.283.6733.