Discipline in the fire service is a challenging topic. It pits our core value of having each other’s back against the importance of ensuring that we act with integrity. Under the umbrella of discipline, there are numerous important subtopics, including due process, Weingarten and Garrity Rights and firefighter bill of rights.
A topic that often gets mentioned but rarely gets explained fully is just cause. Stripped to its essence, just cause is a term that means that an employee cannot be terminated without a legitimate reason. It should be juxtaposed against the term at-will. At-will employees can be terminated at any time, for any reason or no reason.
- Curt Varone will present “Firefighters & Cameras: Managing the Problem” at Firehouse Expo 2023.
Viewed this way, just cause is the opposite of at-will, requiring the employer to have sufficient grounds to warrant termination.
As applied to public employees, just cause has importance beyond serving as a limit on the employer’s right to terminate. It ties in with the concept due process, by creating an expectation of continued employment. The just-cause-due-process connection is an important concept that rests upon lawyer-speak: If one only can be terminated for just cause, then one has an expectation of continued employment, which gives employees a property interest in their job, which gives employees a right to due process.
Employer requirements
Usually at this point, non-lawyers fall asleep or their mind drifts in other directions, which causes them to miss a second important point about just cause—namely, that just cause places certain requirements on an employer who seeks to discipline or terminate an employee.
Understanding this point of just cause is complicated, because no universal definition sets forth what those requirements are. A related challenge is several similar-sounding terms mean roughly the same thing as just cause, including: cause, reasonable cause, good cause, and good and sufficient cause. Rarely do laws or employment agreements define these terms.
The result is that different courts, civil service systems and arbitrators adopted their own interpretations for these various terms. Perhaps the most well-known definition of just cause is the Daugherty Test, which came from an arbitration ruling by Carroll Daugherty in Enterprise Wire Co. and Enterprise Independent Union, 46 LA 359 (1966). That test has seven points:
- Did the company give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?
- Was the company’s rule or managerial order reasonably related to (a) the orderly, efficient and safe operation of the company’s business and (b) the performance that the company might properly expect of the employee?
- Did the company, before administering discipline to an employee, make an effort to discover whether the employee did, in fact, violate or disobey a rule or order of management?
- Was the employer’s investigation conducted fairly and objectively?
- At the investigation, did the “judge” obtain substantial evidence or proof that the grievant was guilty as charged?
- Has the company applied its rules, orders and penalties evenhandedly and without discrimination to all employees?
- Was the degree of discipline that was administered by the company in a particular case reasonably related to (a) the seriousness of the proven offense and (b) the record of the employee in service with the company?
A modified version of the Daugherty Test, commonly referred to as The Seven Tests of Just Cause, simplifies the requirements as follows:
- Was there an investigation?
- Was the investigation fair?
- Did the investigation uncover proof of guilt?
- Was the employer’s rule or order reasonable?
- Was the employee aware of the rule or order?
- Has the rule or order been applied appropriately to others?
- Did the “punishment fit the crime?”
There are other definitions of just cause, but they all share a common factor: Just cause is less about what the employee did wrong and more about how the employer handled the investigation and discipline.
Given the definitional differences, it is wise for employers and employee representatives to ensure that just cause (or the appropriate synonym) is clearly defined, either through policy or employment agreement. If the term already is defined by statute, case law or civil service regulations, it is important for the parties to be aware of it.
A firm grasp now
It is advantageous for fire department leaders and firefighters alike to have proactive common understanding of the requirements of just cause. Waiting until a firefighter faces termination or sues to get his/her job back can result in positions becoming hardened and cooperation being impossible. When that happens, it will be up to judges, hearing officers or arbitrators to fashion their own definition for just cause.
