Moore v. Swisher Mower & Machine Co.

CourtCourt of Appeal of Missouri (US)
Citation49 S.W.3d 731
Parties(Mo.App. S.D. 2001) Kenneth Moore, Appellant, v. Swisher Mower and Machine Co. Inc., and Division of Employment Security, Respondents. ED78608 0
Decision Date26 June 2001

49 S.W.3d 731 (Mo.App. S.D. 2001)
Kenneth Moore, Appellant,
Swisher Mower and Machine Co. Inc., and Division of Employment Security, Respondents.
Missouri Court of Appeals Eastern District

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: Party Acting Pro Se

Counsel for Respondent: Cynthia Ann Quetsch and Larry Raymond Ruhmann

Opinion Summary: Kenneth Moore appeals from a Missouri Labor and Industrial Relations Commission order determining he was not entitled to unemployment compensation benefits because he left work voluntarily without good cause attributable to his work or employer. The record shows that Moore was arrested and jailed on an assault charge that was later dismissed. He became separated from employment because, for three consecutive days during his initial period of incarceration, he failed to call in and tell his employer about his impending absences in accordance with the company's absenteeism policy.

Division One holds: (1) Whether viewed as a question of fact or a question of applying law to the undisputed facts, nothing in the record supports the Commission's determination that Moore voluntarily quit his job rather than being discharged. (2) Moore's failure to comply with his employer's reasonable work rule requiring him to call in and report impending absences, even under the difficult circumstances at hand, was a matter within his control and constituted work-connected "misconduct" within the meaning of section 288.050.2 RSMo 2000, thereby justifying the determination that he was disqualified for unemployment benefits for five weeks.

R. Dowd, Jr., P.J., and Rhodes Russell, J., concur.

Richard B. Teitelman, Judge

Kenneth Moore (Moore) appeals the decision of the Labor and Industrial Relations Commission (Commission) that he was not entitled to unemployment compensation benefits because he left work voluntarily without good cause attributable to his employer. Mr. Moore was arrested and jailed on a charge of assault which later was dismissed. He was separated from employment with Swisher Mower & Machine Company, Inc. (Employer) when, during his incarceration, he failed for three consecutive days to report his work absences as required by Employer's absenteeism policy. Because we find that Moore did not leave work voluntarily but instead was discharged for "misconduct connected with work" within the meaning of Section 288.050.2 RSMo (2000),1 we reverse and remand with directions.


At the time of his separation from employment, Mr. Moore had worked at Employer's plant as a boxer and assembler for approximately ten months. On November 11, 1999, sometime after Moore had left work that day, he was arrested and jailed on an outstanding charge of assault. He was unable to post bail and remained incarcerated for several months. He maintained his complete innocence of the charges, which were eventually dismissed.

As part of its absenteeism policy, Employer had a written rule requiring employees to call in each day if they had to be absent from work; the written policy also provided that failure to follow this rule and report absences for three consecutive work days would be grounds for termination. The first day Moore was scheduled to return to work following his arrest was November 15, 1999. He was unable to return to work that day due to his incarceration. On that day, as well as each of the following two days, Moore failed to phone Employer from jail or otherwise notify Employer that he would be absent from work. On November 17, 1999, Moore failed to attend work or report his absence to Employer for the third consecutive day, and Employer discharged him on that date.

After the charges were dropped and Moore was released from jail, he filed a claim for unemployment benefits. On June 20, 2000, the Division of Employment Security (Division) issued a deputy's determination that Mr. Moore was disqualified for benefits for five weeks because he was discharged by Employer for "misconduct connected with work"---specifically, that he was absent from work for three consecutive days and "the absences were not reported."

Moore appealed the deputy's determination, which resulted in a hearing before an Appeals Referee. Mr. Moore testified, inter alia, that he was aware of Employer's rule that employees were expected to call in if they were going to be absent. He stated that phone privileges were extremely restricted and limited in the jail, which made it difficult to call, and that this was why he did not call Employer between November 15-17. He further testified, however, that despite the difficulties with phone access, he was able to talk with a family member by phone during the first few days in jail---yet did not ask his brother to communicate his absences for him to Employer. The following exchange occurred at the hearing:

Q. Now, Mr. Moore, did you during these---the first few days that you were incarcerated, did you talk with anybody else by phone?

A. At Swisher's?

Q. No, I mean did you talk to family or anything like that?

A. I talked to---I talked to my brother.

Q. Okay. I mean, did you---did you have---instruct your brother to call the employer?

A. No, I didn't.

Q. Okay. Why not do that?

A. Well, because my business at hand, what I was trying to do was trying to get---get out of this jail.

Q. Okay.

A. And that was---what had priority on my mind is trying, you know, get out of that jail. Also testifying at the hearing was Employer's human resources manager. She testified, unequivocally, that Mr. Moore did not quit and was discharged. The following exchange occurred:

Q. Do you know what the last day would have been that Mr. Moore actually performed work for you folks?

A. We show the last day worked as November 11, 1999.

Q. All right. Did he quit his job?

A. No, he did not.

Q. Was he discharged? A. Yes, he was.

Q. And when would that have been communicated to him?

A. The termination paperwork was actually filled out on November 17, 1999. I don't believe it was communicated to him on that day. I think the next time that he came in to work is when it was communicated and I'm not aware of that date.

Q. Okay. So, it was effective November 17?

A. Correct.

Q. Okay. Ms. Chaney, can you tell me why it is that effective date Mr. Moore was discharged?

A. The reason for termination was that he didn't call or come into work for three days. After hearing this evidence the Appeals Referee issued his decision, modifying the deputy's determination and finding that Mr. Moore was not discharged but rather that he voluntarily left his work on November 15, 1999. The relevant portions of the Appeals Referee's findings and conclusions state:


[Claimant] was aware of the employer's rule which required him to call in each day that he had to be absent. Claimant last worked on November 11, 1999. He was then arrested before he could next come to work on November 15, 1999. Despite his knowledge of the employer's rule, the claimant did not even attempt to call the employer until some time after November 17, 1999. He communicated with his brother during the period November 15 through 17, 1999, but never asked him to talk to the employer or call in his absences. The claimant denied his guilt regarding the underlying assault charges. The alleged incident had no connection with the workplace or any co-workers. The claimant was released from jail on April 19, 2000.


The first issue facing this Tribunal is whether to characterize the claimant's separation from employment as a quit or a discharge. The claimant denies any guilt connected with the assault charge for which he was jailed. Therefore, this Tribunal is persuaded that his incarceration (and related absences from the workplace) was not voluntary in the sense that he committed some action which he could reasonably expect to result in his discharge or the abandonment of his job. On the other hand, even though the claimant had some opportunities to communicate with the employer during the time he was in jail, he failed to seize those opportunities. His decision not to communicate with the employer is an action over which he had control. Thus, this Tribunal concludes that his failure to communicate with the employer resulted in the voluntary separation from his job for the employer. Therefore, this Tribunal concludes that the claimant voluntarily left his employment effective November 15, 1999.

Accordingly, pursuant to Section 288.050.1, the Appeals Referee determined that Mr. Moore was disqualified for any unemployment benefits at all until he had earned wages for insured work equal to ten times his weekly benefit after November 15, 1999.2 Mr. Moore appealed the decision of the Appeals Referee to the Commission. The Commission issued its order affirming the decision of the Appeals Referee and adopting the decision as its own. Mr. Moore now appeals the Commission's order to this Court.


1. Motion to Dismiss

Preliminarily, we note that Division has filed a motion to dismiss...

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