Kim Hawk v. Administrator, Unemployment Compensation Act et al. (2011)

MEMORANDUM OF DECISION

The plaintiff, Kim Hawk, brings a statutory appeal concerning the denial of her unemployment compensation application.   The Employment Security Board of Review has certified the record of this appeal to the court.  Connecticut General Statutes § 31–249b.

The record reveals the following:  The Unemployment Compensation Administrator denied the plaintiff-claimant's application for benefits.  General Statutes § 31–241.   The claimant appealed the decision of the Administrator.  General Statutes § 31–242.   Thereupon, a referee conducted a hearing de novo, made findings of fact and affirmed the decision of the administrator.  General Statutes § 31–242.   The claimant appealed the decision by the referee to the Board of Review.  General Statutes § 31–249.   The Board adopted the referee's findings of fact and affirmed her decision.  General Statutes § 31–249.   The claimant then filed a motion to reopen the Board's decision.   General Statutes § 31–249a.   The Board denied that motion.  General Statutes § 31–249a.   The plaintiff appealed the decision of the Board to the Superior Court.  General Statutes § 31–249b.

The court has carefully reviewed the record provided to the court of the proceedings and determinations made at the hearings before the Unemployment Security Board of Reviews on the plaintiff's application for benefits and finds that:

(a) the plaintiff was discharged for willful misconduct in the course of her employment under General Statutes § 31–236(a)(2)(B), and is ineligible for benefits because the referee and board of review found that she was absent without good cause or proper notice on June 21, 22 and 23, 2010 and was previously absent without good cause on multiple occasions.

This court, in hearing this appeal, did not hear the case de novo and is bound by those facts found and reasonable conclusions reached from them, as presented in the record certified by the Employment Security Board of Review.   The court may go no further than to determine whether the decision appealed is unreasonable, arbitrary or illegal.  Burnham v. Administrator, 184 Conn. 317, 321–22, 439 A.2d 1008, 1010 (1981);  Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 4–5, 434 A.2d 293, 295 (1980).   Further, pursuant to Supreme and Appellate Court precedent, the Board's findings are binding on the court absent a motion to correct the findings pursuant to Connecticut Practice Book 22–4.  JSF Promotions, Inc. v. Administrator, 265 Conn. 413, 422, 828 A.2d 609 (2003);  Shah v. Administrator, 114 Conn.App. 170, 175–78 (2009);  Chavez v. Administrator, 44 Conn.App. 105, 106, 686 A.2d 1014 (1997);  Calnan v. Administrator, 43 Conn.App. 779, 784–85, 686 A.2d 134, 137 (1996).   The plaintiff did not file a motion to correct with the Board within two weeks of the filing of the record in this court in May 2011, as required by § 22–4.   Thus, the Board's findings of fact are binding on this court.

Under General Statutes § 31–236(a)(2)(B), an individual is ineligible for unemployment compensation benefits if discharged or suspended for willful misconduct in the course of employment.   Wilful misconduct is defined in General Statutes § 31–236(a)(16) as follows:

․ deliberate misconduct in wilful disregard of the employer's interest, or a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not a result of the employee's incompetence and provided further, in the case of absence from work, “wilful misconduct” means an employee must be absent without either good cause for the absence or notice to the employer which the employee could reasonably have provided under the circumstances for three separate instances within a twelve-month period.   Except with respect to tardiness ․ each instance in which an employee is absent for one day or two consecutive days without either good cause for the absence or notice to the employer which the employee could reasonably have provided under the circumstances constitutes a “separate instance” ․

Pursuant to Reg. Conn. Agencies, D.O.L., § 31–236–26d(f) (2005), where an employee's absence without notice to the employer, per its policy, of such absences continued for two or more consecutive days provides that three consecutive days equal two instances of absence.   Further, absence not reported in compliance with the employer's notice policy has been held by the Board to constitute an absence without proper notice, unless the policy is unreasonable under the circumstances or the claimant had good cause for failing to comply with the policy.

Here the referee and Board of Review found that plaintiff was discharged for her absences of June 21, 22 and 23, 2010.   They found her last day of school was June 21, with June 22 and 23 scheduled training days, and her discharge was not addressed because school had ended.   Pursuant to their further findings, she did not report her absence on June 21 to Ms. Morris or one of the other administrators, as required by the employer's reasonable notice policy, but, instead, left a message for the classroom teacher, without any explanation for failing to follow the policy.   The findings show she did not have good cause for her absence on June 21, because she could not explain her failing to report for work when she realized she did not have an appointment with an attorney that day.   On June 22 and 23, she also did not notify Ms. Morris or one of the other administrators and did not even have good cause for either absence, including June 22, because she did not provide evidence of an all day meeting with an attorney, as she claimed.   The absences of June 21, 22 and 23 constitute two separate instances of absence, pursuant to the above regulation, and the findings of fact establish multiple prior occasions of absence on November 19, 2009, December 14, 2009, January 5, 2010 and February 11, 2010, without evidence of either good cause or proper notice.

Therefore, the court finds that the plaintiff was discharged for wilful misconduct in the course of her employment, pursuant to General Statutes § 31–236(a)(2)(B), and is ineligible for benefits.

For the foregoing reasons, plaintiff's appeal is dismissed.

Julius J. Kremski, J.T.R.

Kremski, Julius J., J.T.R.