I was terminated stating that because I was not able to complete my 6 months probation. On my third month of probation I requested twice to have my supervisor evaluate my performance and to help set up goals. The 1st time it was rescheduled 2nd time he didn't reschedule it at all, This is in December 2010, January 2011 I suffered a work related injury which to this day has kept me out of work as I am still being treated, Worker comp is still pending. A certified letter to me states that because my supervisor was unable to evaluate me, they were terminating the probationary period.I filed a complaint stating that I was under a doctors care and that the job/boss has all the doctors notes, and the Director of HR told me that it is policy that if we were not able to complete the probationary period that they would terminate the employee. I asked her to point that out in the rules of employment and I have not heard back from her as of yet. I do however have a copy of the rules and regulations/gerneral provisions please see below what is stated within the section called Probationary service and other requirements for membership in the civil service area:Initial Probation Period.(1) The initial probation period shall be utilized as part of the examinationprocess to determine the employee’s fitness and ability for employment in theposition and the civil service.(2) An employee who is granted a civil service appointment must serve an initialprobation period.(3) An employee must meet the performance requirements of the position asmeasured by a formal performance appraisal in order to successfully completethe initial probation period.(4) The initial probation period shall be for a period of six (6) months providedthe VP/DHR may establish a longer period for a class of work when such anextended probation is necessary to adequately train and evaluate theemployee.(5) Upon written notification to the employee and before the expiration of theinitial probation period, the appointing authority may extend the initialprobation period for up to six (6) additional months because of the employee’sabsence during the period or because additional time is needed to evaluate theemployee’s performance. The VP/DHR’s approval must be obtained if theinitial probation period is extended beyond the additional six (6) months.(6) If an employee is terminated at HHSC’s discretion during or at the end of theinitial probation period or any extension thereof, the Internal ComplaintProcedures will apply to the termination.I am thinking that because of my current status of being disabled they terminated me, because number 5 above states that they may extend the initial probation period for up to six additional months because the employee's absence during the period of because additional time is needed to evaluate the employee's performance.Please help, I am the only income earner in my family as my husband suffered a disabling stroke in 2001 leaving me as the sole provider to the family.
State/Country relating to question: Hawaii
Thank you for using Just Answer. Between my law practice and other law related jobs, I have over 13 years experience. I look forward to assisting you.Unfortunately, that provision is not going to protect you here. All that does is give the employer (not you) the right to extend the probationary period, if they wish.Even if they did extend the probationary period, all the does is lengthen the period of time where you job has no protection (that's what a probationary period is). Your employment can be terminated for no reason at all during a probationary period, which is why employer's put them in place.Here, they can terminate for absence, even though work related, because nothing about worker's compensation allows you the right to return to your job. It's insurance, not a promise of return. That law, that promises return, is called the FMLA and doesn't become applicable to you until you've been employed for at least 12 months.Unfortunately, there doesn't appear to be any means, on the facts you've given, to reverse this termination.
I asked if there was something else that can be done because I was unconfortable with the certified letter sent to me which states termination and the HR director told me to resign, I consulted a WC lawyer who said that if I resign that is a means to an end to my workers comp case is that true? Could I lose my WC case?
What you stated above about they can terminate an employee due to absence, Is this right even with medical certification? I am currently considered disabled, but they can use that being absent is a condition of termination? Could I not do a wrongful termination stating that because I am disabled they terminated me? I mean they knew what I was going through from the beginning.
Yes, that is even correct with medical certification.As I previously noted, medically related absences are not protected until you fall under the FMLA, which only happens one year after you become an employee. You are not protected by the FMLA.Not, you can not do a wrongful termination claim. You are not disabled, but rather, you are injured which is covered under a different law (the FMLA, which I've been referred to here). Even if you were disabled, the ADA doesn't allow for absences from work, which is the entire reason the FMLA had to be passed...and once again, the FMLA is not applicable to you, because you haven't been there a year.Don't resign. There is no good reason for you to. Make them terminate you, which they are claiming to do. Termination, on these facts, would not end your WC claim.I sue employers for wrongful termination for a living. I fully understand your question and the facts you've outlined here. Unfortunately, your termination is not illegal on the facts you have given here. I know you want to hear differently, but I'm respecting you enough to be honest with you and can only hope that you appreciate that honesty.
I appreciate your help with this!! I also understand what and why policies and rules are also put into place. My other concern is that because it is listed as being terminated on my file, I will not be able to apply for another job at this location or for that matter with another employer.
I still believe that my employer fired me for taking time off due to my injury. I moved back to Hawaii only after knowing that I could secure a job even with it being on a conditional basis (probationary period), I did'nt go into this to get hurt and stay out of work, plus jobs here on the Island are so scarse that I am afraid that I will not find one anytime this year that is comparable to this job or pay scale, Infact my WC lawyer stated that after we hear back from the hearing officer who is dealing with my case, it would be in the best intrest to apply for social security disability.
Any suggestions on social security disability? Would that still not be considered under the Wrongful termination thing? As you stated above you mentioned that I am injured and not disabled, what is the difference? The injury sustained is a cause for disability. Permanent Partial Disability as stated in my doctors note to the Hearing officer.
Termination for this reason isn't going to effect your employability with other employers. People have a misconception about their employee file, believing it to be public information.It is not. You can fully explain to any future employer what has happened and they will understand the basis for the termination, realizing that it is not misconduct based.I'm certain your employer fired you for taking time off for your injury. My point has always been that, assuming that, it's not illegal. You are not protected from termination for being absent due to medical issues, even under WC, without the protection of the FMLA and that law doesn't apply to you because you've been there long enough.Your filing for social security will have no bearing whatsoever on your ability to make a wrongful termination claim here. I appreciate your desire to continue pressing this issue, but this is what I do for a living. I know every angle that there is and filing for SS after the fact doesn't create a claim where one doesn't exist.Injured is when you have sustained an injury that may be able to be corrected over a reasonable amount of time. If you'll remember though, I also said that it doesn't even matter if you are disabled. Being disabled does not protect you from termination, even when absences are related to that disability. So, let's assume you are disabled and they directly terminated you for being absent. That's still legal because the ADA (American's with Disabilities Act) doesn't create a right to absences. That is the entire reason the FMLA had to be passed....and the ADA and FMLA work together to protect the disabled from termination due to their absences, but only one the FMLA applies...after 12 months of employment.You have a worker's compensation claim and that's it. Quitting will hurt that, so don't do it.I would ask that you be fair me with now and accept anyone of my answers.
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