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1. Unemployment Compensation--findings of fact--employee discharged for substantial fault
The trial court did not err by concluding that the Employment Security Commission's (ESC) findings of fact did not support the conclusion that petitioner employee was discharged for substantial fault under N.C.G.S. § 96-14(2a), because: (1) the employer did not have an employee handbook nor did it have a list of company rules and regulations, which means the Court must rely on the Commission's findings as to the employer's policy and the statute is construed strictly in petitioner's favor; (2) the Commission's findings of fact do not indicate that the employer used a formal point system or written warning system to reprimand its employees; (3) ESC failed to enter specific findings of fact that the employer expressly warned petitioner that failure to submit log notes was a violation of employer's rules and that petitioner continued to violate this requirement after being warned; (4) ESC failed to enter specific findings of fact that the employer expressly warned petitioner that failure to call in was a violation of employer's rules and that continued violation of the rule would result in discharge; (5) the act of advising an employee about the employer's absence policy does not necessarily constitute a warning; and (6) ESC failed to make specific findings that employer warned petitioner that his behavior including failure to follow up on his duties, failure to follow directions, and his poor attitude, was in violation of certain rules and that petitioner continued the behavior after being warned that such behavior could lead to discharge.
2. Unemployment Compensation--qualification for unemployment benefits
The trial court did not err by concluding that petitioner employee was not disqualified from unemployment benefits, because: (1) the Employment Security Commission (ESC) did not properly reach its conclusion of substantial fault under N.C.G.S. § 96-14; and (2) there is no remaining basis for disqualifying petitioner from receiving unemployment benefits once it was determined that ESC's findings did not support its conclusion that petitioner was substantially at fault.
Judge STEELMAN dissenting.
Legal Aid of North Carolina, Inc., by Janet McAuley Blue, for
Employment Security Commission of North Carolina, by Regina S. Adams, for respondent-appellant.
Employment Security Commission of North Carolina (ESC or
the Commission) appeals an order of the trial court wherein the
trial court held that Brad Boyland (petitioner) was qualified to
receive unemployment benefits. For the reasons stated herein, we
affirm the order of the trial court.
The factual and procedural history of this case is as follows: Petitioner was employed by Southern Structures, Inc. (employer) as a construction job superintendent from February 2000 until he was discharged in May 2002. On 16 June 2002, petitioner filed a claim with ESC for unemployment insurance benefits. Upon review of the claim, the ESC adjudicator concluded that petitioner was qualified for benefits.
Employer appealed the ruling to an ESC appeals referee. The referee conducted an evidentiary hearing, made findings of fact and entered the following conclusion of law: It is concluded from the competent evidence in the record that the claimant's job performance did not meet the reasonable expectations of the employer. As such, the claimant was discharged for substantial fault on his part connected with the work. The referee held that [c]laimant is disqualified for unemployment benefits for a period of nine weeks beginning June 16, 2002 and ending August 17, 2002.
Petitioner appealed the referee's decision to the Commission. Upon review of the case, the Commission concluded that the factsfound by the Appeals Referee are supported by competent and credible evidence contained in the record. The Commission further concluded that the Appeals Referee properly and correctly applied the Employment Security Law (G.S. §96-1 et seq.) to the facts as found, and the resultant decision was in accordance with law and fact. The Commission affirmed the referee's decision.
Petitioner then filed a petition for judicial review with the superior court, arguing that the evidence did not support the findings of fact, and the findings did not support the conclusion of law that petitioner was discharged for substantial fault. Upon review of the matter, the superior court found as a fact that the Commission failed to find whether petitioner violated an explicit policy and whether petitioner was warned regarding his conduct. The superior court concluded the findings of the Commission were not sufficient to support its conclusions of law that petitioner was discharged for substantial fault. The superior court remanded the matter to ESC for another evidentiary hearing and the issuance of a new decision.
A second evidentiary hearing was conducted by the appeals referee and additional testimony was admitted into evidence. Upon consideration of this new evidence, the referee made the following pertinent findings of fact:
4. The claimant was discharged from this job
for poor job performance.
5. The claimant was hired to train as a construction job superintendent under Ms. Faw and the then superintendent. Whenthe superintendent left in April or May 2001, Ms. Faw left the claimant as the superintendent and continued the training.
6. The employer does not have an employee handbook nor does she have a list of company rules and regulations.
7. On or about October 30, 2001, Ms. Faw gave the claimant his evaluation. Some of the problems with his performance were his attitude towards some of the employees especially when it came to clean up that the claimant did not think was part of his job although everyone was responsible for handling it. She counseled him that he needed to be more observant and organized on the job site. He was to oversee the subcontractors and make sure deliveries were correct. She advised him that taking notes, or better notes, during meetings would help him in his observations and organization and would be something he could refer back to as the project progressed to make sure the work as being properly performed. It was also discussed that punch list items needed to be taken care of sooner, that the credit card was to only be used for business purposes, and that paperwork of what he did each day needed to be kept and turned in on a weekly basis to track what he had done each day.
8. In December 2001, Ms. Faw hired Mr. Rhoades as the project manager because she had not seen an improvement in the claimant's job performance. Ms. Faw told the claimant that he would be working under not only her supervision but also that of Mr. Rhoades.
9. \The claimant did not timely follow instructions of Mr. Rhoades. One specific instance related to covering a floor. Ms. Faw had told the claimant in the past that she liked the work he did in covering the floors and that she preferred that he did it rather than another employee. Mr. Rhoades gave the claimant instructions to cover a certainfloor at least twice but it was not until Ms. Faw instructed him to do it that he did it.
10. The claimant was sent to a trade show in Atlanta. He was instructed to get information on how to create a daily log of work performed by a superintendent. The claimant got information and beginning February 2001, claimant was instructed to keep a daily log of the work he performed, the amount of time spent, and what was being done at each job site. The claimant was instructed to turn the daily logs in every two weeks with his time sheet. He was given a palm pilot to keep his notes along with a keyboard.
11. Claimant was able to keep detailed daily log notes and was able to turn them in every two weeks for the period of February 2, 2001 through March 14, 2001. Ms. Faw was pleased with the notes.
12. Claimant stopped keeping notes for the period of March 15, 2001 through August 5, 2001.
13. Claimant started to keep notes again beginning August 6, 2001 but failed to turn them in every two weeks as required. Ms. Faw asked him several time[s] to turn them in and even suggested that claimant give Ms. Summey his palm pilot and she would print the notes out. Claimant did not do this. Even Ms. Summey asked claimant for his daily logs but he failed to turn them in when requested. Claimaint failed to follow the employer's directive because he unreasonably thought that Ms. Faw and Ms. Summey were joking about the need for him to turn them in.
14. The claimant was out sick one time and did not notify Ms. Faw or Ms. Summey that he was going home sick. He was told in the future that he needed to call if he was going to be absent. Claimant was out again due to the flu and failed to call despite having been warned.
The referee made the following conclusion: It is concluded from the competent evidence in the record that the claimant's job performance did not meet the reasonable expectations of the employer. As such, the claimant was discharged for substantial fault on his part connected with the work. The referee's decision disqualified petitioner for unemployment benefits for nine weeks.
Once again, petitioner appealed the referee's decision to the Commission. Upon review of the case, the Commission ruled in pertinent part as follows:
the Commission concludes that the facts found by the Appeals Referee are supported by competent and credible evidence contained in the record, and adopts them as its own with the following modifications: . . . in FINDING OF FACT 12 - Add the following as concluding sentences -
Claimant was constantly reminded to keep the daily log notes and turn them in with his time sheets. The log notes for September 21, 2001 though December 12, 2001 were submitted on February 27, 2002. The log notes for February 21, 2002 through May 7, 2002 were not submitted until May 9, 2002, after he was terminated.
Add a new FINDING OF FACT to read -
15. In the spring of 2002, Ms. Faw decided to discharge the claimant because of his problems with the timely submission of the log notes, failure to call in when sick, failure to follow up on his duties, failure to follow directions, and for having a poor attitude since [a new superintendent] had been hired.
Furthermore, the Commission concludes that the Appeals Referee properly and correctly applied the Employment Security Law (G.S. §96-1 etseq.) to the facts as found and modified, and the resultant decision was in accordance with law and fact.
The decision of the Appeals Referee is AFFIRMED.
The claimant is DISQUALIFIED for unemployment benefits for a period of nine (9) weeks beginning June 16, 2002, and ending August 17, 2002.
Again, petitioner petitioned the superior court for judicial review of the Commission's ruling. Petitioner argued in pertinent part that [t]he Commission failed to make findings regarding whether Mr. Boyland violated an explicit policy or was warned regarding his conduct. The Commission was required to make such a finding pursuant to the [superior court's order]. Upon review of the second Commission ruling, the superior court issued an order containing the following:
[T]he Court finds that the Commission's findings of fact do not support the conclusion that the Petitioner was discharged for misconduct or substantial fault, and further that the record evidence does not support a finding that the Petitioner should be disqualified due to misconduct or substantial fault.
Based on this finding, the trial court ordered that the decision of the Employment Security Commission finding the Petitioner disqualified for a period of nine weeks due to substantial fault is reversed and the Petitioner is not disqualified from receiving unemployment insurance benefits. It is from this order that ESC appeals.
STEELMAN, Judge dissenting.
I must respectfully dissent from the majority opinion in this case.
I agree with the majority that the issue presented is whether the ESC's findings of fact support its conclusions of law, and that our review is de novo.
Resolution of this case hinges on whether employer gave employee warnings sufficient to comply with N.C. Gen. Stat. § 96- 14(2a). Employer instructed employee to keep a daily log of the work he preformed and turn these in to his employer. Employer gave employee a palm pilot to facilitate this task. Employee kept the log for a while, but then stopped. Both Ms. Faw and Ms. Summey, asked employee to turn in his log notes. Despite their repeated requests, employee failed to do as asked. The majority holds it is unclear whether Ms. Faw and Ms. Summey's multiple requests to turn in his notes constituted a warning. Such a holding would require employer to have told employee that failure to turn in the noteswas a violation of employer's rules and this was a warning. I would not read the requirements of N.C. Gen. Stat. § 96-14(2a) so narrowly. Where an employer makes repeated requests to an employee to perform a task that was clearly assigned to him and the employee continues to ignore the requests, this constitutes a warning for purposes of substantial fault under N.C. Gen. Stat. § 96-14(2a). Whether the employer gave a warning should be determined on the facts of each case and should not be determined by whether the employer used the magic word warning.
As to finding of fact 14 dealing with employee's failure to call in sick, the ESC specifically found that: Claimant was out again due to the flu and failed to call despite having been warned. The majority takes a unique approach to this finding, holding: we are not convinced that the act of advising an employee about the employer's absence policy constitutes a warning. The majority previously noted that the ESC's findings were binding on appeal. The ESC found that employer issued employee a warning. It is not the role of the appellate courts to twist the plain meaning of the ESC's findings to achieve a particular result.
I would hold that either of the ESC's findings 13 or 14, standing alone, support its conclusion of substantial fault. As a result, I would reverse the trial court's order in this matter.
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