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Unemployment Compensation--discharge based on substantial fault-_attendance policy
The trial court erred by affirming the North Carolina Employment Security
Commission's determination that petitioner employee is partially disqualified from receiving
unemployment insurance benefits based on her being discharged due to substantial fault on her
part for abusing defendant company's points-based attendance policy, because the company's
general points-based policy may not form the basis of a finding of fault where petitioner never
accumulated the twenty-four points necessary to warrant discharge under the policy, and the
company did not follow this policy when it fired petitioner for absenteeism.
Legal Aid of North Carolina, Inc., by Linda S. Johnson,
Maureen C. Atta, and Kenneth L. Schorr, for petitioner-
Chief Counsel C. Coleman Billingsley, Jr., by Camilla F. McClain, for respondent-appellee Employment Security Commission of North Carolina.
The present appeal arises from a dispute over whether petitioner-appellant Temonia D. Davis is entitled to unemployment compensation benefits after being discharged by Britax Child Safety, Inc., for alleged abuse of the company's attendance policy. Davis appeals from a superior court order affirming the North Carolina Employment Security Commission's determination that Davis is partially disqualified from receiving unemployment insurancebenefits because she was discharged due to substantial fault on her part. We reverse and remand.
Temonia Davis began working with Britax Child Safety, Inc. on 7 September 1999 as an assembler. Britax made Davis aware of its points-based, no-fault attendance policy on 1 February 2000. The policy states that [e]xcessive absenteeism or tardiness will not be tolerated and may be cause for disciplinary action up to and including discharge. Under Britax's policy, an employee accumulates points for being absent and tardy.
The nature of an absence or tardiness determines the number of points an employee receives. An employee does not accumulate any points for, inter alia, taking an earned sick day, medical or family leave, missing work due to a traffic accident in which the employee was involved while coming to work, or taking earned vacation time after giving one week prior notice. An employee receives one point for an absence where the employee has properly called-in and presents a signed doctor's slip, one point for taking an earned vacation day without giving one week prior notice, and one point for being less than ten minutes tardy or leaving with less than ten minutes left before the end of the employee's shift. Employees who are late to work by more than ten minutes or who leave work with more than ten minutes of their shift remaining receive two points. An employee receives three points for an absence without a proper call-in for which no doctor's slip is presented.
Disciplinary action coincides with accumulation of points by an employee in a twelve month period. Upon receiving twelvepoints, an employee will receive a written notice of her point total. After accumulating sixteen points, the employee is given a written warning. At twenty points, the employee receives a final written warning. Upon receiving twenty-four points, an employee will be discharged. On the first day of each calendar month, Britax removes points accumulated by an employee during that same month of the previous year.
During the course of her employment, Davis was either absent or tardy on numerous occasions. Davis told her employer that many of her absences were attributable to high blood pressure, which made her dizzy and sick. She also suffered from repeated sinus infections. For most of her absences, Davis submitted a doctor's note.
Davis received written warnings on 18 February and 8 May 2000 for having sixteen and nineteen attendance points, respectively, and a final written warning on 8 June 2000 for having twenty-two attendance points. After being tardy without properly clocking-in for work, Davis received one additional point on 16 August 2000, at which time Britax issued another final written warning to her for having twenty-three attendance points. On 9 August 2001, Britax again issued a final written warning to Davis for having twenty attendance points; the warning contained the following handwritten admonition: [p]olicy states an employee will be discharged when they [sic] reach 24 points[.] On 29 October 2001, upon accumulating twenty-one attendance points, Davis received yet another final written warning which contained the following handwritten comment: the no fault attendance policy states thatany employee who accumulates 24 or more points in a 12-calendar- month period under this system will be discharged.
On 14 March 2002, Davis received one point for taking an earned vacation day without giving one week prior notice. At this time, she received a written warning in accordance with the No Fault Attendance Policy for having sixteen points. Between 19 March and 28 March, Davis received two points for being more than ten minutes late for work, three points for an unexcused absence, and one point for a three-day absence for which a doctor's slip was submitted. Britax issued a final written warning to Davis on 1 April 2002 for having accumulated twenty-two points; the warning stated that [e]xcessive absenteeism or tardiness will not be tolerated and may be cause for disciplinary action up to and including termination.
Moreover, Britax representatives concluded that Davis had abused the point system by missing work until she accumulated twenty or more points and then reporting to work until her point total fell below twenty, at which time she would begin to miss again. Therefore, on 1 April 2002, the company also placed Davis on disciplinary probation with the following written terms:
Because of excessive abuse of the point system [Davis] is being placed on disciplinary probation until June 1, 2002. During this time [Davis] is expected to be [at] work on time and to be out only with pre-approved authorization. Any absence longer than 3 days will require a leave of absence. A dramatic improvement needs to be seen in [Davis'] attendance. If abuse continues it will be subject to further disciplinary action up to and including termination.
Davis was neither absent nor tardy while on probation. Following the probation, Davis called in sick on 4 June and again on 6 June 2002. Although she did not have enough remaining sick leave to cover the 6 June absence, Davis was issued only one point because she submitted a doctor's note. In addition, on 5 June 2002, Davis was issued one point for leaving work and then returning. A sinus infection caused these absences. On 7 June 2002, Britax issued a final written warning to Davis for having twenty-one points and terminated her employment for excessive absenteeism and abuse of the attendance point system.
Following her discharge, Davis filed a claim for unemployment insurance benefits with the North Carolina Employment Security Commission. An adjudicator, and subsequently a hearing officer, determined that Davis was not discharged due to substantial fault on her part and should not be partially disqualified from receiving benefits. On Britax's appeal, the Employment Security Commission reversed. The Commission made the following pertinent findings of fact:
3. The claimant [Davis] was discharged for abuse of the employer's attendance policy due to excessive absenteeism despite prior disciplinary actions.
. . . .
7. . . . The employer concluded that the claimant abused the attendance policy because the claimant would miss work until she had accumulated twenty or more points and then the claimant would report to work until she was back down to under twenty points. This was accomplished due to the employer's policy of removing points after one year.
8. During her probationary period, the claimant reported to work although she was sick. The claimant was aware that her job wasin jeopardy if she was absent from work during her probationary period. Pursuant to the employer's attendance policy, two attendance points were removed during the probationary period which left the claimant with 20 attendance points.
9. After the 60 day period had elapsed, the claimant was absent on June 4 and 6, 2002, and left work early on June 5, 2002. The claimant received 1 attendance point on June 5 and 6, 2002. The claimant was absent due to a sinus infection. The claimant provided the employer with a doctor's note regarding her absence.
The Commission made the following conclusions of law:
The Commission . . . concludes that the claimant was discharged for substantial fault connected with the work. . . . Further, the claimant must be held disqualified from receiving unemployment insurance benefits for a period of nine (9) weeks.
Davis appealed to the Mecklenburg County Superior Court, which affirmed the decision of the Commission.
Davis appeals to this Court, contending (1) the Superior Court and the Commission erroneously interpreted N.C.G.S. § 96-14(2a) in concluding that Davis was discharged due to substantial fault on her part for abusing her employer's points-based policy, and (2) there is no competent record evidence to support the Commission's findings of fact which indicate that Davis abused Britax's attendance policy. Because we conclude that Davis' first argument has merit, we need not address the second.
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