gross misconduct

by Mo

(Maryland)

My husband was fired from his manufacturing job after 18 years of employment.

He’d been working on equipment with dry ice and had some in a plastic soda bottle. It apparently popped and made a loud noise in the plant. No one was injured and it was supposed to have happened several hours after my husband left for the day. He didn’t find out about it even on the next shift; he learned of the incident on Friday, two days after it happened. He fessed up to having been working with the dry ice. He was told he couldn’t work the weekend overtime, and that we was suspended for Monday’s shift. He was called on Tuesday and told not to come in for his evening shift, that they still needed time to “make a decision.” They called on Thursday and fired him over the phone.

The letter he received a few days later makes it sound as if he was warned repeatedly about safety issues, but that’s not the case. In fact, he was sent to classes annually to be a state certified emergency first responder for the plant. He was employee of the month recently, and we have a letter from last year congratulating for safe and efficient building of manufacturing equipment, a special project he’d worked on.

The letter from UI says he was denied for gross misconduct and we’d like to appeal.

If the incident rises to that level, why did they take almost a week to fire him?

The other circumstance that we believe is relevant is that he was injured through no fault of his own three years ago on the job. It was a slip and fall injury on grease that required two hand surgeries. They were making him continue to go to work, as they said a no missed time Workmen’s Comp case is cheaper for them. When he had to take a time off for surgery, they took it from his vacation days. They had him go in for a “safety meeting” at 10 pm less than 48 hours after his second surgery, and the doctor was prescribing Vicodin. He pursued his rights and won a settlement through a workmen’s compensation hearing, and the company was not happy. If we had it to do over, we’d have filed a civil claim, but that ship has sailed.

How should we pursue UE appeal?

Mo

Hi Mo,

First .. here’s the MD unemployment decision digest. It looks new, I hope it’s improved too.

Maryland’s definition of gross misconduct

“Section 8-1002 defines gross misconduct as (i) a deliberate and willful disregard of standards of behavior that an employer has the right to expect and that shows gross indifference to the employer’s interests; or (ii) repeated violations of employment rules that prove a regular and wanton disregard of the employee’s obligations. Misconduct that does not fall within the above definition is not gross misconduct. The definition above also does not include aggravated misconduct.”

What happened to your husband does not sound like “gross indifference”, but perhaps, a “good faith error or an isolated incidence”?

You should try to get a copy of his personnel file.

I would think for the employer to sustain a gross misconduct burden that repeated and prior warnings involving safety violations would be in the personnel file.

In addition, the employee handbook should have language about what an employee might expect from the employer.

You pursue the appeal and try to rebut the employers contention of misconduct.

The big difference between everyday misconduct and gross is the disqualification and the objective perception of his attitude, for lack of a better word.

The DQ is 5-10 weeks for regular run of the mill indifference for “standards of behavior”.

Gross indifference carries a 20 week disqualification.

If your husband can find a witness or two that would testify to his character and support that he was not the “indifferent sort” who repeatedly violated safety rules .. it wouldn’t hurt.

I don’t know how you would bring in the past accident as relevant to this safety violation unless the settlement is recent and in that case you might need a lawyer to pursue a civil case of wrongful discharge due to “retaliation”.