Love v. Heritage House Convalescent Center

• Decision Date: 24 January 1983
• Docket Number: No. 2-1081,2-1081
• Citation: 463 N.E.2d 478
• Parties: Frances LOVE, Appellant (Claimant Below), v. HERITAGE HOUSE CONVALESCENT CENTER, Appellee, and Review Board of the Indiana Employment Security Division, Appellee. A 361.
• Court: Indiana Appellate Court

Page 478

463 N.E.2d 478

Frances LOVE, Appellant (Claimant Below), v. HERITAGE HOUSE CONVALESCENT CENTER, Appellee and Review Board of the Indiana Employment Security Division, Appellee.

No. 2-1081 A 361.

Court of Appeals of Indiana Second District.

Jan. 24, 1983.

Franklin W. Arkenberg, III, Griggs & Arkenberg, Franklin, for appellant.

David T. O'Malia, Stark, West & Smith, Indianapolis, for appellee Heritage House Convalescent Center.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee Review Bd. of the Indiana Employment Sec. Div.

SULLIVAN, Judge.

Frances M. Love (Love) appeals the decision of the Review Board of the Indiana Employment Security Division affirming a referee's denial of unemployment benefits because she had been discharged for just cause from her employment with the Heritage House Convalescent Center. We affirm.

In deciding that appellant was ineligible for benefits under I.C. 22-4-15-1 (Burns Code Supp.1982), ¹ the Board adopted the following findings and conclusions which the appeals referee entered after having conducted an evidentiary hearing:

"FINDINGS OF FACT: The claimant worked for this employer from June 9, 1980 until April 6, 1981. The claimant was last employed in a position of nursing assistant in the intermediate care unit at the rate of pay of $3.50 per hour. On April 6, 1981 the claimant was discharged from her employment for alleged unsatisfactory attendance.

The claimant was absent from her employment due to either her own personal illness or the illness of a close family member on twenty days from September 9, 1980 until the date of the claimant's discharge. In addition, the claimant was excused for her absence on December 25, 1980 because of excessive snow.

The claimant was tardy no more than three minutes in reporting to work on thirteen days. The claimant was tardy on those days due to road conditions from her residence to the facility of the employer. The claimant is required to travel at least part of the distance to work on a gravel road and on township roads.

The employer has a policy which provides that if an employee is absent for a total of six days in any given six-month period, a counselling report will be completed by the employee's immediate supervisor without regard to the reason for the absences. Following such a counselling report, any additional unexcused absences may be cause for termination and the supervisor may determine that any additional absences, regardless of the reason for the absence, may be cause for termination.

An employee is considered tardy anytime the employee clocks in for work after the starting time of the shift. The employer's policy further provides that more than ten tardies in a twelve-month period may be cause for termination.

The claimant received a copy of the employer's attendance policy at the time she began work for this employer. The claimant was counselled regarding her attendance on August 1, 1980, February 3, 1981, and March 8, 1981. On March 30, 1981 the claimant was specifically advised that any absence or tardiness before May 1, 1981 would result in her termination. The claimant was absent from her employment on April 5, 1981.

On April 6, 1981 the claimant was discharged from her employment because she incurred more than six absences in a six-month period (regardless of the reason for the absences) and because she incurred more than ten tardies in a twelve-month period.

CONCLUSIONS: An individual who is discharged for just cause is ineligible for benefit rights as provided in Chapter 15-1 of the Indiana Employment Act. The term 'discharged for just cause' is defined by the Act to include unsatisfactory attendance, if the individual cannot show good cause for absences or tardiness and knowing violation of a reasonable and uniformly enforced rule of an employer.

In this case, the employer's rule regarding attendance subjects an employee to discharge regardless of the reason for the absences. An employer's rule which subjects an employee to discharge for absences without regard to the reason for those absences is not a 'reasonable rule' for purposes of disqualification from unemployment benefits under Chapter 15-1. In this case, although the claimant may have violated the rule of the employer regarding attendance, the employer's rule regarding attendance is not a reasonable one under Chapter 15-1 of the Act. As a result, the referee concludes that the claimant did not knowingly violate a reasonable and uniformly enforced rule of the employer.

The legislature has specifically provided that unsatisfactory attendance constitutes just cause for discharge, if the individual cannot show good cause for the absences or tardiness. Illness of the claimant or illness of a close family member of the claimant constitutes good cause for absences. In this case, all of the absences of the claimant were for good cause.

It is the responsibility of the employee to arrive at work on time. General road conditions do not constitute good cause for chronic tardiness. Since the claimant was tardy on thirteen different occasions because of general road conditions, the referee concludes that the claimant did not have good cause for such tardiness. As a result, the referee concludes that the claimant was discharged for just cause within the meaning of Chapter 15-1 of the Indiana Employment Security Act." Record at 83-84.

In her assignment of errors, appellant challenged the Board's decision as being both contrary to law and unsupported by the evidence. Framed in this manner, the challenge triggers the two-tiered standard of review contemplated by I.C. 22-4-17-12 (Burns Code Ed.1974). Under this standard, the Board's "finding of ultimate fact" is its conclusion, whereas its "findings of basic facts" are the evidentiary findings on which this conclusion is premised.

"At the first level of review, we examine only the relationship between the premises and the conclusion and ask if the Board's deduction is 'reasonable.' (Citation omitted.) The inquiry at this first level of review may be termed a 'question of law.' (Citation omitted.)

At the second level of review, we inquire into the nexus between the premises or findings of basic facts and the evidence presented to determine if the evidence justified these findings. In this inquiry we are obliged to give substantial deference to the agency's findings, inasmuch as the agency, and not this court, has the opportunity to hear and see the witnesses and the exhibits. Thus, in reviewing the sufficiency of the evidence to sustain the findings of basic facts, we are not at liberty to reweigh the evidence ...." Gold Bond Building Products Division National Gypsum Co., Shoals Plant v. Review Board of the Indiana Employment Security Division (2d Dist.1976) 169 Ind.App. 478, 349 N.E.2d 258, 263.

Accord, Forster v. Review Board of Indiana Employment Security Division (4th Dist.1981) Ind.App., 420 N.E.2d 1287, 1290.

We shall first determine whether there was a nexus between the Board's findings of basic facts and the evidence adduced. In reviewing the evidence, we consider only that evidence and the reasonable inferences therefrom most favorable to the Board's decision. We are free to disturb this decision only if reasonable persons would be bound to reach a different conclusion on the evidence in the record. Ervin v. Review Board of the Indiana Employment Security Division (3d Dist.1977) 173 Ind.App. 592, 364 N.E.2d 1189, 1193.

While the initial burden of proving that the employee has been discharged for just cause is upon the employer, once the employer...