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10th District Court of Appeals Upholds Commission’s Voluntary Abandonment Finding After Termination Following a Progressive Discipline Policy

BY: Janelle Matuszak, Esq.

In State ex rel. Reisinger v. Indus. Comm., 10th Dist. No. 18AP-621, 2019-Ohio-3344, claimant was terminated and subsequently filed a motion for temporary total disability compensation (TTD).  The employer argued claimant was not entitled to TTD because he abandoned his former position of employment when he was terminated pursuant to a progressive discipline policy.  First, he used his cell phone on the floor and received coaching.  He then failed to follow the lockout/tag-out procedure and received a written warning.  Next, he failed to wear safety glasses and was suspended for three days.  Finally, he failed to wear the side shields on his safety glasses and was terminated.  All four violations occurred sometime after his injury.  The Commission found claimant voluntarily abandoned his employment and denied TTD.  Claimant filed a Mandamus action in the 10th District Court of Appeals arguing he did not know the final violation would result in termination.  He argued this was not the first time he failed to wear the side shields for his safety glasses and it never resulted in termination before.  The 10th District upheld the commission’s finding of voluntary abandonment finding there was no requirement that claimant know a further violation will actually lead to termination.  The rule must be written in such a way that claimant knew or should have known it was a dischargeable offense.  Since the company’s policy indicated failure to wear the side shields on safety glasses could result in termination, this was enough to put claimant on notice that violation could result in a voluntary abandonment of his employment.

 

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