Employers certainly have the right to comment about alleged employee misconduct in a grievance proceeding, right? Not so fast. A recent Ohio court of appeals decision suggests that Ohio employers may want to be even more careful regarding what they say about alleged employee misconduct. In Gintert v. WCI Steel, Inc., 2007-Ohio-6737 (11th Dist. Trumbull County 2007), a union employee was fired, in part because three fellow employees said they heard him use a racial slur toward another employee. Denying that he used the slur, the terminated employee sued the company, his supervisors, and two employees for defamation.
The trial court granted the employer’s motion for summary judgment, relying on an earlier decision in Stiles v. Chrysler Motors Corp., 89 Ohio App.3d 256 (6th Dist. Lucas County 1993). In Stiles, the Lucas County Court of Appeals held that statements made in the course of a grievance proceeding arising out of a collective bargaining agreement are entitled to an absolute privilege. An absolute privilege protects employers regardless of whether challenged statements are false or malicious.
In this recent case, however, the Trumbull County Court of Appeals disagreed with the Stiles decision and held that such statements are protected only by a qualified privilege, and that an absolute privilege attaches only when statements are made in a judicial or quasi-judicial context. The court held that grievance proceedings under a collective bargaining agreement fall short of the required “judicial or quasi-judicial” context.
The distinction between the two types of privilege is important because, unlike the absolute privilege, a qualified privilege only protects statements made in good faith or on a matter of common interest between an employer and an employee - or between two employees - concerning a third employee. A qualified privilege does not protect a defendant if the statement was made with knowledge of its falsity or reckless disregard for its truth or falsity.This decision should be of interest to Ohio employers because of its implications on defamation cases brought against supervisors or others for what is said about alleged employee misconduct.