Decision Number 1103-BR-90 - Discharge - Sections 8-1002, 8-1002.1, 8-1003 - Maryland Unemployment Decisions Digest - Appeals

BOARD OF APPEALS

DECISION

Issue: Whether the claimant was discharged for gross misconduct or misconduct, connected with her work, within the meaning of Section 6(b) or 6(c) of the law.

- NOTICE OF RIGHT OF APPEAL TO COURT -

YOU MAY FILE AN APPEAL FROM THIS DECISION IN ACCORDANCE WITH THE LAWS OF MARYLAND. THE APPEAL MAY BE TAKEN IN PERSON OR THROUGH AN ATTORNEY IN THE CIRCUIT COURT OF BALTIMORE CITY, IF YOU RESIDE IN BALTIMORE CITY, OR THE CIRCUIT COURT OF THE COUNTY IN MARYLAND IN WHICH YOU RESIDE.

THE PERIOD FOR FILING AN APPEAL EXPIRES AT MIDNIGHT ON December 2, 1990.

APPEARANCES

REVIEW ON THE RECORD

Upon review of the record in this case, the Board of Appeals reverses the decision of the Hearing Examiner and concludes that the claimant was discharged for misconduct, within the meaning of Section 6(c) of the law.

The Board has held that a violation of an employer's attendance policy is not misconduct per se where that policy does not distinguish between absences which occurred because of legitimate medical reasons and unexcused absences, such as the policy at issue in this case. See, e.g., Randall v. Nationwide Mutual Life Insurance Co., 1641-BR-82.

However, the Board has also found that an employee who misses a large number of work days, even if excused, has a heightened duty not to miss any work for unexcused reasons. See, e.g., Birmingham v. S. Schwab Co., Inc., 333-SE-86.

Applying the reasoning of those cases here, the Board concludes that while the claimant's absences appear to all be due to illness, at least some of her occurrences of lateness were not due to legitimate medical reasons or other unavoidable reasons. Therefore, a finding of misconduct under Section 6(c) and a minimum disqualification is appropriate.

The claimant's actions do not amount to gross misconduct within the meaning of Section 6(b).

DECISION

The claimant was discharged for misconduct, connected with her work, within the meaning of Section 6(c) of the Maryland Unemployment Insurance Law. She is disqualified from receiving benefits for the week beginning May 27, 1990 and the four weeks immediately following.

The decision of the Hearing Examiner is reversed.

Hazel A. Warnick, Associate Member
Donna P. Watts, Associate Member

HW:W
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COPIES MAILED TO:
CLAIMANT
EMPLOYER
UNEMPLOYMENT INSURANCE - WALDORF

LOWER APPEALS DECISION

DECISION

Issue: Whether the claimant was discharged for gross misconduct connected with the work, within the meaning-of Section 6(b) of the Law.

- NOTICE OF RIGHT OF FURTHER APPEAL -

ANY INTERESTED PARTY TO THIS DECISION MAY REQUEST A FURTHER APPEAL AND SUCH APPEAL MAY BE FILED IN ANY OFFICE OF THE DEPARTMENT OF ECONOMIC AND EMPLOYMENT DEVELOPMENT, OR WITH THE APPEALS DIVISION, ROOM 515, 1100 NORTH EUTAW STREET, BALTIMORE, MARYLAND 21201, EITHER IN PERSON OR BY MAIL.

THE PERIOD FOR FILING A FURTHER APPEAL EXPIRES AT MIDNIGHT ON September 22, 1990.

APPEARANCES

FINDINGS OF FACT

The claimant was discharged and applied for benefits. The Claims Examiner determine that she was discharged for gross misconduct and the maximum was imposed. She appeals. The claimant was employed in various clerical capacities from April 3, 1989 through May 24, 1990. Under the employer's policies more than six absences or occurrences within six months are grounds for discharge. This is a no fault policy. Consequently, an employee may be discharged regardless of reason.

The claimant was absent on April 16, 1990 due to illness. She was one minute late on May 1, 1990 due to traffic.

She was two minutes late on May 2, 1990 due to traffic. She was absent on May 14, 1990 because her daughter was ill and she called in.

She was late on May 16, 1990 because her daughter was ill and she called in.

She was late on May 22, 1990 due to traffic and highway construction.

She was fifteen minutes late on May 23, 1990 because she woke up late.

She was absent on May 24, 1990 after suffering a miscarriage. For the days she was tardy, she received one half occurrence and for the days that she was absent all day, she received a full occurrence.

It was a thirty minute commute to work for the claimant. She normally left home an hour before she was due at work.

The claimant's absences except for May 23, 1990 were either due to illnesses or traffic. Under the circumstances, neither constitute misconduct under the Maryland Unemployment Insurance Law.

CONCLUSIONS OF LAW

Article 95A, Section 6(b) provides for a disqualification from benefits where an employee is discharged for actions which constitute (1) a deliberate and willful disregard of standards which the employer has a right to expect or (2) a series of violations of employment rules which demonstrate a regular and wanton disregard of the employee's obligations to the employer.

The preponderance of the credible evidence in the instant case will support a conclusion that the claimant's actions do not rise to the level of gross misconduct within the meaning of the Statute.

The claimant was discharged under the employer's no fault policy. I find that her absences except for May 23, 1990 were either due to illness or traffic, which was beyond her control and; therefore, does not constitute misconduct under the Maryland Unemployment Insurance Law.

Her tardiness on May 23, 1990 due to sleeping late is by itself insufficient to support a finding of misconduct.

DECISION

The determination of the Claims Examiner is reversed. The claimant was discharged but not for gross misconduct or misconduct connected with the work, within the meaning of Section 6(b) or Section 6(c) of the Maryland Unemployment Insurance Law. No disqualification is imposed based upon her separation from employment with Nordstrom, Inc.

The claimant may contact the local office regarding the other eligibilities requirements of the Law.

Van D. Caldwell, Hearing Examiner

Date of Hearing: 8/31/90
ps/Specialist ID: 20693
Cassette No: 6528
Copies mailed on 9/7/90 to:

Claimant
Employer
Unemployment Insurance - Waldorf (MABS)

Gibbens Company