Our public employer clients often express frustration with employees who have a pattern of acting badly at work. How much longer do they have to put up with a problem employee? What options do they have? Two recent arbitration decisions underscore the point public employers are able to terminate employees who act badly at work. Both termination cases involved hospital workers, and were decided by two different experienced arbitrators.

Arbitrator Jacobs upheld the termination of a 30 year employee, who had a pattern of disciplinary problems, culminating in a verbal altercation with a fellow employee. The employee had a documented pattern of problems dating back to 2007 including attendance issues, insubordination, poor workplace demeanor, and attitude problems towards co-workers. Arbitrator Jacobs stated, “She has demonstrated an unwillingness and/or inability to change her workplace behavior or performance as the Employer wants. Keep in mind that the Employer gets to call the shots here in terms of what it expects from its employees. That someone has been doing it in a particular way for years does not carry the day. The question is whether they are doing it the way the Employer wants it done now. Here the grievant has a demonstrable problem doing that.”

Arbitrator Fogelberg upheld the termination of a hospital worker who also had a pattern of bad behavior. The final straw was a loud verbal altercation with another employee, which was interpreted as threatening and abusive. “[H]is disruptive behavior toward his fellow workers proved to have an adverse effect on morale and detracted from the Clinic’s ability to focus on its patients. Moreover, the steps taken by Management demonstrate little of the desired result was achieved.”

Crucial in both arbitration awards is the extraordinary efforts the employers had taken to advise the employee about work expectations. These efforts included documenting performance issues, coaching, counseling, training, and progressive discipline. While any one of the individual incidents may not have been termination worthy, the cumulative nature of the documented misconduct sustained the termination decisions.

All employers should read “document, document, document,” between the lines in both arbitration decisions. Train, transfer, try, and if the employee is still acting badly, then termination may be the appropriate action.