Firing Employee for Being Injured Violates Public Policy

Firing Employee for Being Injured Violates Public Policy

Posted: July, 2011

Sutton v. Tomco Machining Inc. (6/9/11), 129 Ohio St.3d 153, 2011-Ohio-2723.

Issue: Does an employee who the employer fires after the injury occurs, but before the employee files a workers’ compensation claim, have a claim for wrongful discharge in violation of public policy?

Background: Sutton was injured while working. He reported the injury to the president of the company who fired him within one hour of being informed of the injury. The president did not explain why he fired Sutton, but did say that he did not fire Sutton because of Sutton’s work ethic or job performance. The president also said that did not fire Sutton for violating any work rule or policy.

Sutton followed the R.C. §4123.90 procedural requirements and then filed a complaint alleging both an R.C. §4123.90 claim for retaliatory discharge and a tort claim for wrongful discharge in violation of public policy.

The trial court granted judgment on the pleadings for the company. On appeal, the Court of Appeals affirmed the judgment for the company on the R.C. §4123.90 claim, finding that R.C. §4123.90 does not apply when a company fires an employee before the employee files a workers’ compensation claim.

However, the Court of Appeals reversed the finding on the tort claim, finding that R.C. §4123.90 created a public policy which the company violated by firing Sutton after learning about his work injury.

The company appealed.

Decision: Supreme Court affirms, but limits the available remedy.

In general, Ohio is an employment at will state. However, an exception exists when an employer fires an employee for reasons which violate a clearly established public policy.

To determine whether the public policy exception to employment at will applies in this case, the Court examines R.C. §4123.90. R.C. §4123.90 prohibits retaliatory discharge “because the employee filed a claim or instituted . . . proceedings under the workers’ compensation act.”

While this statute expressly prohibits retaliation against a worker who has filed a claim, it does not expressly apply to a situation such as Sutton’s – where a worker has been injured on the job but has not yet filed a claim. The Court characterizes this situation as a “gap” and states

We find that the General Assembly did not intend to leave a gap in protection during which time employers are permitted to retaliate against employees who might pursue workers’ compensation benefits. The alternative interpretation—that the legislature intentionally left the gap—is at odds with the basic purpose of the antiretaliation provision, which is “to enable employees to freely exercise their rights without fear of retribution from their employers.”

The Court finds it contrary to Ohio public policy to permit an employer to fire an employee for their injury before they file a workers’ compensation claim.

The Court limits the remedies for this type of wrongful discharge claim to the remedies provided by R.C. §4123.90 (reinstatement with back pay and attorneys fees). The Court bases this limit on the nature of the workers’ compensation system as a compromise, stating that this compromise “must govern” the remedies available to employees who suffer a retaliatory discharge in violation of public policy after suffering a workplace injury (but before filing a workers’ compensation claim).

Editor’s Comment: This was a 4-3 decision. The three dissenting justices did not dissent on the holding limiting remedies available to a worker fired by their employer because of the injury at work. The three dissenting justices would allow an employer to fire an injured employee as retaliation for being injured as long as the employee has not yet had time to file a workers’ compensation claim.

Information courtesy of the Ohio Workers’ Compensation Bulletin. Subscribe to the Ohio Workers’ Compensation Bulletin to keep informed about the Ohio workers’ compensation system.