Court rules 'substantial breach' of duties needed to disqualify fired worker from unemployment benefits - East Valley Tribune: Arizona

Court rules 'substantial breach' of duties needed to disqualify fired worker from unemployment benefits

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Posted: Wednesday, June 5, 2013 7:01 am | Updated: 11:21 pm, Tue Jun 11, 2013.

Being a few minutes late for work a couple of times may allow an employer to fire a worker.

But it is not enough to deny her claim for unemployment benefits, the Arizona Court of Appeals has ruled.

The judges overturned the decision of the state's Unemployment Insurance Appeals Board that Lenita Norwood had been fired for just cause and therefore was ineligible for benefits. They said the evidence on the record showed no real pattern of misconduct.

Potentially more significant for employers, the court said that disqualification from benefits occurs only when there is "a material or substantial breach'' of the worker's duties and obligations or if the breach "adversely affects a material or substantial interest of the employer.'' In this case, they found neither.

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. And Kessler said that misconduct that might allow a company to fire a worker is not the same as misconduct that would disqualify someone from getting benefits.

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

Kessler said the record here convinces the court that 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.

"Employer did not show how such de minimis tardiness actually affected its interests,'' Kessler said. He said 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 being three minutes late did result in such problems.

Kessler said the evidence also shows that 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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