Jeffboat, Inc. v. Review Bd. of Indiana Employment Sec. Div.
| Decision Date | 20 June 1984 |
| Docket Number | No. 2-783A260,2-783A260 |
| Citation | 464 N.E.2d 377 |
| Parties | JEFFBOAT, INCORPORATED, Appellant (Petitioner), v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION and Rex D. Wolfe, Appellee (Respondent). |
| Court | Indiana Appellate Court |
Norman L. Roelke, Jeffersonville, for appellant.
Linley E. Pearson, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.
Petitioner-appellant Jeffboat, Inc. (Jeffboat) seeks reversal of a decision by the Review Board of the Indiana Employment Security Division (Board) granting Rex D. Wolfe (Wolfe) unemployment compensation benefits because of a determination that absences due to illness may not be used to discharge an employee for just cause, despite the fact that the absences also violate a company plan dealing with absenteeism.
We reverse and remand.
The facts most favorable to the decision indicate that Wolfe was discharged from his employment as a welder with Jeffboat on November 24, 1981. Wolfe's discharge was based on violation of a labor-management agreement entitled Jeffboat Absentee Control Program (the Program). The Program allows an employee up to nine days of unverified personal absence per contract year without consequence. On the tenth through twelfth days of absence, a reprimand and suspension procedure is instituted, and the thirteenth day of absence results in discharge. In defining a day of absence, the Program states that two "Out-of-Gate Passes", issued for leaving work early, are the equivalent of one day of absence. Finally, an employee's reason for absence is generally irrelevant under the Program; however, when an employee can verify an illness causing absence for three or more consecutive days, the absence becomes an "Illness Leave" and does not count toward the thirteen-day personal absence limitation. Record at 23-24.
Wolfe's absence record, from May to November, 1981, shows he was reprimanded, suspended, and ultimately discharged after being absent thirteen days. The thirteen days included eight days of absence (six for illness) and ten "Out-of-Gate Passes" (the equivalent of five absences). Not included within the thirteen absences were three weeks of illness falling within the "Illness Leave" standards and one week of vacation. Record at 17.
A Deputy Referee found Wolfe ineligible for unemployment compensation, concluding that he was discharged for just cause in accordance with a reasonable and uniformly enforced company policy dealing with absenteeism. The Appeals Referee and the Review Board disagreed, finding that Wolfe had shown good cause for his final days of absence due to illness; therefore, he was not discharged for just cause.
One question is dispositive of this case:
Does unemployment compensation legislation allow an employee to be discharged for just cause, and therefore be ineligible for unemployment compensation benefits, because of a knowing violation of a reasonable and uniformly enforced rule of an employer dealing with absenteeism, even though some of the absences may be justified by illness?
PARTIES' CONTENTIONS--Jeffboat maintains that Wolfe is not eligible for unemployment compensation benefits because it properly discharged him for a knowing violation of a reasonable and uniformly enforced rule dealing with absenteeism. Wolfe responds that any absence justified by illness may not be used to discharge him for just cause and so he is eligible for unemployment compensation benefits.
CONCLUSION--Wolfe could be discharged for just cause because of a knowing violation of a reasonable and uniformly enforced rule of an employer dealing with absenteeism, even though some of the absences may be justified by illness.
Resolution of this case requires us to interpret certain provisions of Indiana's unemployment compensation law:
"(b) With respect to benefit periods, established on and after July 6, 1980, an individual who has voluntarily left his employment without good cause in connection with the work or who was discharged from his employment for just cause is ineligible for waiting period or benefit rights for the week in which the disqualifying separation occurred and until he has earned remuneration in employment equal to or exceeding the weekly benefit amount of his claim in each of eight (8) weeks....
....
(e) 'Discharge for just cause' as used in this section is defined to include but not be limited to:
(1) separation initiated by an employer for falsification of an employment application to obtain employment through subterfuge;
(2) knowing violation of a reasonable and uniformly enforced rule of an employer;
(3) unsatisfactory attendance, if the individual cannot show good cause for absences or tardiness;
(4) damaging the employer's property through wilful negligence;
(5) refusing to obey instructions;
(6) reporting to work under the influence of alcohol or drugs or consuming alcohol or drugs on employer's premises during working hours;
(7) conduct endangering safety of self or co-workers; or
(8) incarceration in jail following conviction of a misdemeanor or felony by court of competent jurisdiction or for any breach of duty in connection with work which is reasonably owed an employer by an employee."
Ind.Code 22-4-15-1 (1982) (emphasis supplied).
Appellate courts seemingly never stop repeating the admonition that statutory words, phrases, and punctuation should be given their plain, ordinary, and usual meaning by construing the statute as a whole. When the language used in the statute is clear and unambiguous and the intent of the legislature is unmistakable, we must adopt the meaning plainly expressed. Murphy v. State, (1980) Ind.App., 414 N.E.2d 322; Brighton v. Schoffstall, (1980) Ind.App., 401 N.E.2d 84.
Murphy, supra at 324-25 (footnote and citations omitted). See also 1A C.D. SANDS, SUTHERLAND STATUTORY CONSTRUCTION Sec. 21.14, at 90 (1972). Likewise, the eight subdivisions of IC 22-4-15-1(e) set out above present alternative definitions for "just cause". Thus, it is reasonable to conclude that Wolfecan be discharged for "just cause" because he knowingly violated a reasonable and uniformly enforced rule of an employer dealing with absenteeism, despite the existence of "good cause", or illness, for some of the unsatisfactory attendance.
To justify the refusal to pay unemployment compensation benefits under IC 22-4-15-1, Jeffboat had the initial burden of showing that Wolfe was discharged for just cause. Then, Wolfe had the burden of rebutting Jeffboat's case. Tauteris v. Review Bd. of the Ind. Employment Sec. Div., (1980) Ind.App., 409 N.E.2d 1192; Graham v. Review Bd. of the Ind. Employment Sec. Div., (1979) 179 Ind.App. 497, 386 N.E.2d 699. At the hearing, Jeffboat introduced a copy of the Program (which was negotiated with the union) and established Wolfe's violation of the Program's absenteeism provisions. Record at 14-17. Wolfe acknowledged existence of the Program, record at 16, but claimed it was unfair to be discharged for absenteeism partially caused by illness. Record at 22, 25. Having decided that absences partially caused by illness may lead to discharge for just cause so long as they are incorporated into a reasonable and uniformly enforced plan, we need only address whether the Program was reasonable and whether it was knowingly violated and uniformly enforced.
We cannot say a plan is unreasonable per se simply because it allows some absences caused by illness to be accumulated toward the thirteen-day benchmark at which an employee has been excessively absent and will be discharged. Thus, we reject the broad dictum of Love v. Heritage House, (1983) Ind.App., 463 N.E.2d 478, at 482, that "[a] rule which subjects an employee to discharge for excused, as well as unexcused absences, is unreasonable under I.C. 22-4-15-1(e)(2)."
Jeffboat's Program is reasonable because it protects the interests of the employer by providing protection from an employee who abuses the Program, e.g., one who is consistently "ill" one day a week (sometimes referred to as a malingerer). Further, the Program...
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