Moore v. Review Bd. of Indiana Employment Sec. Div., 2-1183A402

• Decision Date: 10 April 1984
• Docket Number: No. 2-1183A402,2-1183A402
• Citation: 461 N.E.2d 737
• Parties: Randy S. MOORE, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, David L. Adams, and Paul M. Hutson, as members of and as constituting the Review Board of the Indiana Employment Security Division, and Transil Wrap Plastics, Appellees.
• Court: Indiana Appellate Court

Page 737

461 N.E.2d 737

Randy S. MOORE, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION William H. Skinner, David L. Adams, and Paul M. Hutson, as members of and as constituting the Review Board of the Indiana Employment Security Division, and Transil Wrap Plastics, Appellees.

No. 2-1183A402.

Court of Appeals of Indiana Third District.

April 10, 1984.

Patricia Smith, Legal Services Organization of Indiana, Inc., Indianapolis, for appellant.

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

HOFFMAN, Judge.

Appellant Randy Moore was employed as a utility person for Transil Wrap Plastics. He had worked for the company approximately five weeks. In July 1983, his sister became ill and Moore arranged to take her to the hospital and watch over her. Moore told his employer he would be absent a few days.

The first day of Moore's absence his mother called Transil Wrap and informed his employer that Moore would be absent. The next day Moore called and stated, "I'd be off another day." On the third day of Moore's absence, Transil Wrap called his mother and informed her that Moore's employment had been terminated. Moore picked up his last check approximately one week later.

Moore applied for unemployment compensation. This request was denied due to an initial determination that he "voluntarily left employment without just cause." Moore timely appealed this decision to a referee. The referee entered the following findings and decision which were adopted in toto by the Review Board:

"FINDINGS AND CONCLUSIONS: Evidence shows claimant worked for this employer for a period from June 1983 to July 5, 1983 as a utility man. His rate of pay was $4.00 per hour, he was working full-time. Evidence also showed that claimant's work was from 4:00 P.M. to 12:00 Midnight, and that on the day in question, the claimant had been absent from work for three days because of an illness of his sister That on the first day of his being off work, claimant did not call the employer, and that he had asked his mother to do it for him; on the second day that he was off, claimant called, and on the third day of his absence, claimant did not inform employer nor call employer of his whereabouts. Referee finds here that claimant was absent from work for personal reasons and not for reasons considered good cause in connection with work within the meaning of the Act. Referee also finds that claimant had failed to exert the necessary effort to protect his job by notifying his employer properly with regards to his absence from work. Referee also finds that claimant had failed to exert the necessary effort to maintain the employer-employee relationship.

"From the foregoing findings therefore, it is held that claimant had voluntarily quit employment for personal reasons and not for reasons considered good cause in connection with work, within the meaning of the Act. It is also referee's findings that although claimant was terminated by employer because of his failure to call employer on the third day of his absence as to his whereabouts, referee holds that employer had a right to terminate claimant from his job because he failed to exert the necessary effort to maintain the employer-employee relationship."

Moore appeals.

On appeal Moore raised three issues which have been combined herein for review. That issue is: whether the evidence was sufficient to support the findings of the Review Board.

Generally, the Review Board's determination of factual questions is conclusive and binding on this Court. On review this Court does not reweigh the evidence and may only consider the evidence and reasonable inferences drawn therefrom which support the Board's decision. A decision by the Board will be reversed only where reasonable persons would be bound to reach a different conclusion. Wakshlag v. Review Bd. of Ind. Employ. Sec., (1980) Ind.App., 413 N.E.2d 1078; Ervin v. Rev. Bd. et al., (1977) 173 Ind.App. 592, 364 N.E.2d 1189.

In the case at bar the Board held that Moore had voluntarily left his employment without good cause. In addition, the Board found that Moore's employer had sufficient just cause to terminate Moore due to his absenteeism. Such alternative findings are not contradictory, as contended by appellant, and may be supported by the same set of facts and circumstances in certain situations. See Dozier v. Review Bd. of Indiana, etc., (1982) Ind.App., 436 N.E.2d 373. However, what remains to be seen is whether the facts in the case at bar support either conclusion.

In a situation where an employee is alleged to have been terminated for just cause, the employer bears the burden of...