Fired worker can still get jobless benefits

'Substantial breach' of duties required for denial, court rules
2013-06-01T00:00:00Z Fired worker can still get jobless benefitsHoward Fischer Capitol Media Services Arizona Daily Star
June 01, 2013 12:00 am  • 

Denying someone unemployment benefits because they were fired should happen only when there is "a material or substantial breach" of the worker's duties and obligations, the State Court of Appeals has ruled.

And simply being late for work doesn't qualify, the judges ruled in overturning a state Unemployment Insurance Appeals Board finding that a pharmacy worker had been fired for just cause and therefore was ineligible for benefits.

Benefits could also be denied if an employee's action "adversely affects a material or substantial interest of the employer," which the judges said didn't apply to tardiness.

In the case heard by the court, Lenita Norwood had been employed by Women's International Pharmacy Inc. as a lab technician in Youngtown for nearly four years. She was fired in 2011 for violating the company's policy on tardiness two days in a row, each time being three minutes late.

Attorneys for the company said it is policy for workers to be on time because if one is late, it can delay the work of others. The policy also said that repetitive tardiness could result in termination.

The firm also said that workers who start at 8 a.m., like Norwood, are responsible for setting up the lab for the day. And they said the company has zero tolerance for repetitive tardiness.

At a hearing, Norwood testified, without challenge, that she had not been reprimanded for about 3 1/2 years when she was several minutes late at her workstation. And a company official acknowledged that a prior manager did not give Norwood a final warning until the day before she was fired.

Judge Donn Kessler, writing for the appellate court, said when an employee is discharged for work-connected misconduct, the burden is on the employer to prove she was let go for reasons that also should deny her unemployment benefits. Misconduct that might allow a company to fire a worker is not the same as misconduct that would disqualify someone from getting benefits, he said.

The latter, he said, requires things like repeated and frequent instances of tardiness or situations where there are special responsibilities, like opening the doors each day.

Kessler said Norwood's conduct did not rise to the level where she should not get her benefits.

"Limited incidents of slight tardiness ordinarily do not amount to misconduct sufficient to disqualify an employee from benefits," he wrote. Here, there were just two documented instances, with the difference in each case being three minutes.

Kessler said that while the company presented "generalized statements" of how tardiness at 8 a.m. can result in delays during the day, it offered no evidence that Norwood's being three minutes late did result in such problems.

Kessler said the company tolerated Norwood's slight tardiness for almost four years, until there was a change in management.

That, he said, made the first documented case of slight tardiness the day before she was fired. And Kessler said that means there was no evidence of repetitive incidents of tardiness.

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