Holmes v. Review Bd. of Indiana Employment Sec. Div., No. 2-283A71

Docket NºNo. 2-283A71
Citation451 N.E.2d 83
Case DateJuly 13, 1983
CourtCourt of Appeals of Indiana

Page 83

451 N.E.2d 83
Wallace G. HOLMES, Appellant,
v.
REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION,
William H. Skinner, David L. Abrams and Paul M. Hutson, As
Members of And As Constituting the Review Board of the
Indiana Employment Security Division, And Otis Elevator
Company, Appellees.
No. 2-283A71.
Court of Appeals of Indiana,
Fourth District.
July 13, 1983.

Page 84

Susan A. Failey, Legal Services Organization of Indiana, Inc., Bloomington, for appellant.

Linley E. Pearson, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.

CONOVER, Judge.

Claimant-appellant Wallace G. Holmes (Holmes) appeals a decision of the Review Board of the Indiana Employment Security Division (Board) denying Holmes unemployment compensation because his discharge by Otis Elevator Company (Otis) for absenteeism was for just cause.

Reversed.

ISSUE

Whether incarceration awaiting trial upon criminal charges later dismissed constitutes just cause for an employee's discharge for absenteeism.

FACTS

Holmes had been employed by Otis for five years, but was terminated for absenteeism on March 11, 1981. Otis's policy dealing with absenteeism was first an oral warning, next a written warning, and third suspension prior to discharge. Holmes had a chronic absenteeism problem which resulted in an oral warning by Otis given him on October 22, 1980. When the problem continued, he received a written warning on November 18, 1980. Finally on March 3, 1981, he was placed on three day suspension by Otis, all for absenteeism. When Holmes did not return to work at the end of his suspension on March 9th, Otis extended the suspension period to March 11th. When he did not return on that day, Otis terminated him.

Three felony counts had been filed against Holmes and a sizeable cash bond set. When he could not satisfy the bond after his arrest, Holmes was incarcerated in the Monroe County Jail and remained there during and after the suspension period imposed upon him by Otis. On March 12, 1981, the day after his discharge, Holmes's father advised Otis Holmes was being held in jail under bond.

After four and one-half months, the charges were dismissed, and Holmes was freed. Otis declined to reinstate Holmes to his former employment. Holmes sought unemployment compensation.

An Indiana Employment Security Division (IESD) deputy's finding of just cause for termination was reversed by an IESD referee who found Holmes's discharge for absenteeism was without just cause since he had not been convicted of a crime.

On appeal to the full Board, the referee's decision was reversed, the Board stating as its grounds for reversal:

The Review Board concludes that Claimant's reason for his absence after the expiration of his suspension was due to his incarceration which in itself is disqualifying and does not constitute good cause for failure to report to work.

It further finds that Claimant has failed to show good cause in connection with

Page 85

work within the meaning and intent of Chapter 15-1 of the Act for his absence.

Holmes appeals this decision.

DISCUSSION AND DECISION

Ind.Code 22-4-15-1 reads in part:

(e) "discharge for just cause" as used in this section is defined to include but not be limited to: ...

(3) unsatisfactory attendance, if the individual cannot show good cause for absence or tardiness;

* * *

(8) incarceration in jail following conviction of a misdemeanor or felony by a court of competent jurisdiction .... (Emphasis supplied.)

Although Holmes was incarcerated because criminal charges were filed against him, he was never convicted. The charges against him were dismissed.

Because he was not incarcerated following conviction, Holmes argues just cause for his termination did not exist, and he had good cause for being absent from his employment. "Only a claimant who has been incarcerated after conviction of a crime can be disqualified from receiving benefits," Holmes claims.

The Board, however, argues section (e)(8) cannot be so narrowly interpreted because the opening clause of the section uses the words "include but not be limited to," citing Frost v. Review Board of the Indiana Employment Security Division, (1982) Ind.App., 432 N.E.2d 459. In Frost, the Board sought to recover unemployment compensation benefits it had paid when Frost was reinstated and awarded back pay pursuant to a grievance she had filed. The statute defining "deductible income" contained the language "shall include, but shall not be limited to" followed by specific examples of such income. In his discussion of the subject, Judge Sullivan said:

IC 22-4-5-1 contains the clause " '[d]eductible income' ... shall include, but shall not be limited to ...." ... We deem such to be an expression of legislative intent that the specifications which follow are by way of example only. Where, as here, the specific words follow the general, the general term is restricted to things which are similar to those enumerated. 2A Sutherland, Statutes and Statutory Construction (4th ed. 1973) Sec. 47.17.

Frost, supra, 432 N.E.2d at 461. Because substantially the same language appears in IC 22-4-15-1, the Board claims incarceration when criminal charges are filed which causes absenteeism resulting in discharge constitutes just cause therefor, and does not constitute good cause for being absent even though the employee was never convicted of a crime. The section (e)(8) language in question does not restrict just cause discharge to post-conviction incarceration only, it is merely one example of incarceration constituting just cause for discharge, according to the Board. Incarceration pending trial regardless of case disposition is another example of just cause incarceration, the Board in effect, argues.

The Board further states even though the Indiana Employment Security Act is social legislation and by its terms to be liberally construed, it must also be reasonably construed. A construction which forces an employer to hold open a job for an employee incarcerated because charged with crime is unreasonable and not within the purview of the statute, it posits.

This case does not present the question of whether an employer must hold open a job for an incarcerated employee charged with crime, as the Board contends. The question here is whether such employee is entitled to recover unemployment compensation benefits if he is discharged as a result of such incarceration, i.e., is discharge for absenteeism under such circumstances good cause under section (e)(3) or just cause under section (e)(8)?

We must first determine whether...

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23 practice notes
  • New Trend Beauty School, Inc. v. Indiana State Bd. of Beauty Culturist Examiners, No. 49A02-8602-CV-55
    • United States
    • Indiana Court of Appeals of Indiana
    • February 3, 1988
    ..."general and uniform system of jurisprudence," Holmes v. Review Board of Indiana Employment Security Division (1983) 4th Dist. Ind.App., 451 N.E.2d 83, giving effect to both acts, if at all possible. Indiana State Highway Commission v. Bates & Rogers Construction, Inc. (1983) 1st Dist. Ind.......
  • Irving v. Emp't Appeal Bd., No. 15–0104.
    • United States
    • United States State Supreme Court of Iowa
    • June 3, 2016
    ...justifying termination and those disqualifying employee from unemployment benefits); Holmes v. Review Bd. of Ind. Emp't Sec. Div., 451 N.E.2d 83, 87–88 (Ind.Ct.App.1983) ; Hunt v. Gen. Elec. Co., 84 A.D.2d 622, 444 N.Y.S.2d 492, 493 (1981). These cases demonstrate that for purposes of unemp......
  • Fennell v. Board of Review, No. A-1700-95T3
    • United States
    • New Jersey Superior Court – Appellate Division
    • February 7, 1997
    ...& Employment Security, 440 So.2d 438 (Fla.Dist.Ct.App.1983) (criminal charges dropped after three weeks in jail); Holmes v. Review Bd., 451 N.E.2d 83 (Ind.Ct.App.1983) (2-1 decision) (criminal charges dropped); Shoennagel v. Louisiana Office of Employment, 413 So.2d 652 (La.Ct.App.1982); Fo......
  • State Emp't Sec. Div. v. Murphy, No. 65681.
    • United States
    • Nevada Supreme Court of Nevada
    • March 31, 2016
    ...of an inability to pay a traffic fine was not disqualified from unemployment benefits); Holmes v. Review Bd. of Ind. Emp't Sec. Div., 451 N.E.2d 83, 88 (Ind.Ct.App.1983) (holding that a claimant was not disqualified from unemployment benefits because of pretrial incarceration where charges ......
  • Request a trial to view additional results
23 cases
  • New Trend Beauty School, Inc. v. Indiana State Bd. of Beauty Culturist Examiners, No. 49A02-8602-CV-55
    • United States
    • Indiana Court of Appeals of Indiana
    • February 3, 1988
    ..."general and uniform system of jurisprudence," Holmes v. Review Board of Indiana Employment Security Division (1983) 4th Dist. Ind.App., 451 N.E.2d 83, giving effect to both acts, if at all possible. Indiana State Highway Commission v. Bates & Rogers Construction, Inc. (1983) 1st Dist. Ind.......
  • Irving v. Emp't Appeal Bd., No. 15–0104.
    • United States
    • United States State Supreme Court of Iowa
    • June 3, 2016
    ...justifying termination and those disqualifying employee from unemployment benefits); Holmes v. Review Bd. of Ind. Emp't Sec. Div., 451 N.E.2d 83, 87–88 (Ind.Ct.App.1983) ; Hunt v. Gen. Elec. Co., 84 A.D.2d 622, 444 N.Y.S.2d 492, 493 (1981). These cases demonstrate that for purposes of unemp......
  • Fennell v. Board of Review, No. A-1700-95T3
    • United States
    • New Jersey Superior Court – Appellate Division
    • February 7, 1997
    ...& Employment Security, 440 So.2d 438 (Fla.Dist.Ct.App.1983) (criminal charges dropped after three weeks in jail); Holmes v. Review Bd., 451 N.E.2d 83 (Ind.Ct.App.1983) (2-1 decision) (criminal charges dropped); Shoennagel v. Louisiana Office of Employment, 413 So.2d 652 (La.Ct.App.1982); Fo......
  • State Emp't Sec. Div. v. Murphy, No. 65681.
    • United States
    • Nevada Supreme Court of Nevada
    • March 31, 2016
    ...of an inability to pay a traffic fine was not disqualified from unemployment benefits); Holmes v. Review Bd. of Ind. Emp't Sec. Div., 451 N.E.2d 83, 88 (Ind.Ct.App.1983) (holding that a claimant was not disqualified from unemployment benefits because of pretrial incarceration where charges ......
  • Request a trial to view additional results

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