{¶ 42} I respectfully dissent. This case involves a contract concerning terms of Scott's employment. "[P]arties to an employment contract, as with any other contract, are bound toward one another by standards of good faith and fair-dealing." Boiling v. Clevepak Corp.,20 Ohio App.3d 113, 121, 20 OBR 146, 484 N.E.2d 1367. The law implies a condition that neither party will act so as to defeat the other party's legitimate expectations under the contract. Restatement of the Law 2d, Contracts (1981) 189, Section 230.
{¶ 43} According to the record, the city terminated Scott for "being in violation of the Rules of Civil Service 9.10 and the City of Cleveland's Drug-Free Workplace Policy, as well as for failing to meet the requirements of [his] last chance agreement."
{¶ 44} The city cited paragraph 8 of Civil Service Rule 9.10, which pertains to "insubordination," and also an excerpt from its drug-free workplace policy that provides: "Civil Service Rule 9.10 states that any officer or employee in the classified service may be discharged, suspended or reduced in rank for intoxication or misuse or abuse of drugs in the course of his or her employment."
{¶ 45} On May 10, 2005, the city requested that Scott report to work early for his shift the next day in order to attend a predisciplinary hearing and then submit to drug testing, which he agreed to do. However, the predisciplinary hearing was cancelled, leading Scott to believe that the subsequent drug testing had likewise been cancelled. While the city representative denies it, Scott maintains that he offered to submit to drug testing upon his arrival to work on May 11, 2005. Scott maintains that he was willing to submit to drug testing throughout the duration of his shift on May 11, 2005. Instead, his superior told him it would be rescheduled for "a later date." Scott did not hear of it again until he returned *Page 149 a call to work the evening of May 12, 2005. The city instructed him to come in for testing the following day at 3:30 p.m., which he said he could not do.
{¶ 46} Scott worked 12-hour shifts. The week in question, Scott was scheduled to work May 10 and 11 from 5:30 a.m. to 5:30 p.m. Scott was not scheduled to work on May 12 or May 13. Then, he was scheduled to work the next three days. Nonetheless, when Scott would not or could not come in for testing on his day off (May 13) as demanded by the city at 6 p.m. the evening of May 12, the city terminated him by letter dated May 18, 2005.
{¶ 47} Scott stated that he could not make it into work on May 13, but he indicated that he was scheduled to work the following day and could take the test at that time. Scott did not have access to a car on May 13, 2005, and taking the bus would have required numerous transfers.
{¶ 48} In the summer of 2004, the city required Scott to execute a last-chance agreement after he tested positive for drugs. Scott explained that he had "smoked a part of [a joint of marijuana]" while golfing on vacation, which he classified as a "stupid mistake." The last-chance agreement executed by Scott, his union, and the city on November 5, 2004, provided that he would submit to "periodic, random drug * * * tests conducted by the employer at any time within the next twenty-four (24) months following this agreement."
{¶ 49} There is nothing to suggest that Scott's termination resulted from a violation of the cited provisions of the city's drug-free workplace policy. Indeed, he had previously submitted to at least six random drug tests, which all resulted negative for drug use. According to Scott, all of those random tests were administered to him during working hours.
{¶ 50} The referee for the Cleveland Civil Service Commission found that the city failed to establish any violation by Scott of the drug-free workplace policy. The referee further concluded that the city failed to establish that Scott refused to submit to drug testing on May 11, 2005. However, the referee concluded that Scott violated the last-chance agreement when he did not appear for drug testing on May 13, 2005, his scheduled day off, and sustained his termination for that reason. The trial court upheld that decision, but I would not.
{¶ 51} Scott legitimately and reasonably expected that the condition of random drug testing would apply only during times he was working. This understanding is buttressed by the custom and practice established by these parties whereby all the previous random tests were conducted on days Scott was scheduled to work. To provide otherwise would allow the city to demand testing at any hour of the day, seven days a week, which is simply unreasonable. When Scott did not submit to testing on his day off work, he was terminated notwithstanding the opportunity to conduct the test during working days. Summoning an employee *Page 150 to appear on demand "at any time" or lose his job does not comport with the notions of good faith and fair dealing that applies to contracts such as this. The fact that the city would have paid Scott overtime for coming to work on his day off for drug testing does not dissuade me. It was essentially undisputed that getting to work on May 13, 2005, would have been a significant inconvenience to Scott, who did not have a car that day. The last-minute demand to change his plans and find a way to work or lose his job is very unreasonable. This is especially true when he was at work for 12-hour shifts on May 10 and 11, 2005, and was also scheduled to be there the three days following May 13, 2005. Therefore, I would sustain the first assignment of error. *Page 151