Gross Misconduct and Texting

[Lazyrider]

Sure reads like you think you have a wrongful termination---which you don't! Unless that termination was based on a protected characteristic, then you have nothing-end of story!

The termination does not only have to be "based on a protected characteristic", by which I will assume you mean things like, race, gender, religion, etc.

The termination can also be considered wrongful IF: It is in violation of the employer's/company's own termination policy, OR if a false statement of fact is used in order to terminate.

I understand that this is what 'cbg' was telling me earlier - that a false statement of fact may have to be communicated to another party (i.e prospective employer) in order to establish that it has damaged my reputation. Just the fact that it exists isn't enough to be considered defamatory. That definately makes sense to me.

This is why I was inquiring about Gross Misconduct and its definition in the first place, because it doesn't seem clear here that what I did constitutes Gross Misconduct. Gross Misconduct appears in many instances (including this particular employer's own handbook) to suggest criminal behavior in the workplace. Texting, angry texting......on OR off duty, is not listed anywhere in the handbook as being in violation of any company policy. So, if what I did does not fit into what is covered under the definition or implied definition of Gross Misconduct, yet it is printed, filed, and repeated to others that suggests it DOES.....

.....can it be considered defamation and therefore wrongful termination?

I really just want the job back. And if rehiring isn't possible, then I would hope for the reason for termination to be changed to something more fitting to what occured (and I honestly can't come up with one - had an employee done this to me, especially an employee with a great work ethic, no disciplinary record, etc etc.....I don't even think I would have suspended them. Maybe a written warning to be filed.....?)

 

[pattytx]

The termination can also be considered wrongful IF: It is in violation of the employer's/company's own termination policy, OR if a false statement of fact is used in order to terminate.

Here's what's wrong. That statement above. Neither of the two situations you cite is a violation of any law.

 

[Lazyrider]

What it comes down to is that if you want your job back, and you had such a good relationship with your employer that you felt comfortable texting him and calling him names or using profanity, you might get him to reinstate you. You can certainly ask him what sort of reference you can expect from him.

However, you can't sue him and make him give you your job back. Whether or not you were fired for "gross misconduct" which is a term, nothing more. Not something that is going to have a lot of meaning to the next employer you try to get a job with. You're just going to have to talk around your reason for termination when applying for your next jobs. We don't know what he's going to tell the next employer. As I said, you could ask him.

I would always suggest that people file for unemployment benefits when fired. You may lose your appeal, but then, he may not chose to fight it, or he may, and you might win anyhow. The fact that you have had no previous disciplinary issues will be in your favor. They will have to make a decision based on your and your employer's testimony whether this was "gross misconduct" according to your employment situation, and they will take the workplace handbook into consideration, plus your previous relationship with the employer, other employees acceptible behavior (like if everybody cursed on the job at this worksite)

I did initially try to get them to reinstate me. My bosses boss (the regional VP who happens to be local), agreed with me to an extent. He agreed that had I done this #1 'On duty', and #2 'In a manner meant to humiliate or publicly disrespect my boss' (meaning had I said these things aloud for others to hear), that it would at least be considered Insubordination, and would be in an extreme enough form to warrant me getting fired immediately, rather than warned, suspended, etc.

However, both my boss and the regional VP said the decision was totally out of their hands, that it was Corporate HR who determined Gross Misconduct, and that there was nothing they could do. The regional VP suggested to me that I talk to the woman at Corporate HR responsible for the decision, which I did. She was VERY clear that they would not reverse the decision, or immediately change the reason for termination. I was told I could request in writing that the reason be changed, but that more than likely it wouldn't, since she had already consulted HER bosses regarding my termination in the first place, and they all agreed on Gross Misconduct.

I did not apply for unemployment, as I don't believe I can since I held 3 jobs concurrently, and still hold my 2 remaining jobs. I wouldn't be eligible based on the fact that I still work 6 days a week, even though it is extremely limited hours.

However, if I understand correctly what you have suggested.....by applying for unemployment, and most likely getting denied, I could request an appeal, and it could potentially lead to a change in the reason for termination? Or, am I just completely out of luck since I am probably ineligible to apply for unemployment in the first place because of my other jobs...?

Funny you mention other people's behavior on the job.....so many employees at this place, CURRENT employees, have been blatantly disrespectful to the boss. They outwardly scream at him, call him names, use un-Godly amounts of profanity when speaking to him, and will go out of their way to NOT do specific things that he asks them to. Some of the things these people say/do to him are just shameful, disrespectful, and incredibly insubordinate.....yet, they still have their jobs.

It is unbelieveable that these other, current employees could get away with such nasty behavior in front of so many people in the past (most of whom just got a good laugh out of it - again, shameful), yet my 'private' texts are deemed so much worse? I mentioned that this job is at an airport, where many companies (airlines, contract workers, TSA, FAA, etc.) all work very closely with/to each other. I have had several people from OTHER companies tell me that are stunned by my termination, citing that they've witnessed other employees saying and doing far worse while actually on duty and for others to hear/see!

Ironically, I was actually fired via text message - I didn't know if this was an appropriate method for terminating an employee, but from what I've found so far it is acceptable. It's not recommended, or considered to be very professional, however.

I appreciate your suggestions thus far - any other help or information you can provide would be most appreciated.