The claimant was discharged for violating the employer’s tardiness policy. She was allowed benefits upon a finding that she was discharged, but not for misconduct connected with the work. The employer appealed, and a hearing was scheduled before an administrative law judge.
At the Hearing
The Employer’s Evidence: The employer testified that the claimant was excessively tardy to work, giving traffic and sleeping through her alarm as the reasons for her lateness. She had received warnings pursuant to the employer’s policy, which the claimant had received at hire, that provided for discharge if a claimant incurred an excessive number of incidents of tardiness to work. She was informed that her tardiness was putting her job in jeopardy. The employer gave her information on leaves of absence and changed her schedule in an attempt to assist her with arriving to work on time. On the date of the final incident, the claimant was late due to traffic.
The Claimant’s Evidence: The claimant testified that she was suffering from anxiety and depression, which (along with traffic congestion) prevented her from arriving to work on time. She testified that she informed the employer’s witness that she was experiencing difficulty with her coworkers, who she felt were bullying her. She testified that she was given information about an Employee Assistance Program, but was fired before she could take advantage of it. She also testified to illness which contributed to full-day absences.
The Hearing Decision
The administrative law judge (ALJ) found that the claimant was discharged for misconduct connected with the work, and she was disqualified from benefits. The ALJ found that the claimant had violated the employer’s known and reasonable company policy, and the reasons for her tardiness were not outside of her control to avoid. The claimant appealed, arguing that her anxiety and depression, which she argued was the ultimate cause of her tardiness, was outside of her control, and therefore her tardiness was not misconduct connected with the work. She also argued that a physical condition which caused her to miss full shifts was outside of her control to avoid.
The Board of Review Decision
The Board of Review (BOR) agreed with the ALJ’s decision. The BOR found that the claimant’s tardiness caused her separation from work. Although the claimant was absent from work due to illness, the absences were not the cause of her discharge. The claimant could have adjusted her routine to prevent her tardiness due to traffic, therefore the tardiness was within her control to avoid. Her discharge was properly considered to be misconduct connected with the work.
- In absenteeism cases, the claimant will be given the opportunity to explain the reasons for the incidents that led to discharge. If the incidents were outside of her control to avoid, benefits may be allowed. In this case, the administrative law judge found that traffic was not outside of the claimant’s control to avoid because there were several incidents caused by traffic. The claimant should have made adjustments which would have allowed her to arrive to work on time. If you are pursuing and attendance and/or tardiness case, be prepared to argue that there were options available to the claimant that would have prevented her absences or tardiness. If you can prove that the claimant had alternatives to her policy violations, you could persuade the state that the claimant’s actions rose to the level of a disregard of her obligation to you to arrive to work as scheduled.
- If a claimant violates a particular employer policy, and the violations lead to her discharge, other policy violations generally are not considered relevant to the case. In this case, the claimant attempted to argue that her absences due to illness, which is generally considered outside of a claimant’s control to avoid, should have been considered in the ALJ’s decision. The claimant in this case violated a particular policy of the employer’s related to tardiness, and the violations which led to her discharge were all incidents of tardiness. Since the claimant testified that her absences, not tardiness, were due to illness, the illness should not have been considered in the final decision. The absences were not relevant to the reason she was discharged.
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