*1 JEFFBOAT, INCORPORATED, (Petitioner),
Appellant
REVIEW BOARD OF INDIANA EM-
PLOYMENT SECURITY DIVISION Wolfe, Appellee (Respon-
and Rex D. dent).
No. 2-783A260. Indiana, Appeals
Court of
Second District.
June *2 procedure is institut suspension and
mand day absence re ed, the thirteenth defining day of In a discharge. sults "Out- absence, Program states that two Passes", leaving for work issued of-Gate one equivalent of are the early, for Finally, employee's reason an absence. under irrelevant generally absence however, can employee an when Program; for three causing absence illness verify an days, the absence be consecutive or more not and does "Illness Leave" an comes thirteen-day personal ab toward the count 23-24. at limitation. Record sence record, May to No- absence Wolfe's reprimanded, vember, 1981, shows he was discharged after ultimately suspended, and days. The thirteen thirteen being absent Jeffersonville, Roelke, ap- L. Norman (six for eight days of absence days included pellant. (the Passes" illness) and ten "Out-of-Gate Gen., R. Pearson, Atty. Gordon Linley E. absences). Not included five equivalent of Gen., Indianapolis, Medlicott, Deputy Atty. three were the thirteen absences within appellee. "Illness falling within the illness weeks of vaca- week of and one Leave" standards BUCHANAN, Judge. Chief 17. tion. Record found Wolfe Deputy Referee A SUMMARY CASE compensation, conclud- unemployment Jeffboat, (Jeff- Inc. Petitioner-appellant cause ing that he decision boat) of a reversal seeks uni- with a reasonable in accordance of the Indiana Board Review dealing company policy formly enforced D. (Board) granting Rex Security Division Appeals Referee with absenteeism. compensation (Wolfe)unemployment Wolfe finding disagreed, Review Board and the that of a determination his good cause for had shown may not be used illness due to absences illness; there- days of absence due final cause, de- employee for discharge just cause. fore, not he was violate also that the absences spite the fact dealing with absenteeism. company plan ISSUE remand. We reverse case: dispositive of this question is One legis-
Does FACTS be dis- allow an lation cause, be and therefore decision most favorable The facts compensa- ineligible for discharged from indicate that Wolfe knowing benefits, viola- of a tion with Jeffboat as a welder uniformly en- tion of a reasonable Wolfe's on November dealing with forced rule of labor-manage violation of on was based absenteeism, though even some Absentee entitled Jeffboat agreement illness? may justified be absences Pro (the Program). The Control days up to nine gram allows DECISION per contract personal absence of unverified PARTIES' CONTENTIONS-Jeffboat the tenth On consequence. year without absence, eligible for repri maintains not Wolfe is days through twelfth unemployment compensation benefits be- or drugs on premises during cause it properly discharged him for a working hours; knowing violation of a reasonable and uni- (7) conduct endangering safety of self or formly dealing enforced rule with absentee- co-workers; or responds ism. Wolfe any absence jail incarceration in following convic- justified by illness not be used to *3 tion of a misdemeanor felony or by court him for cause and so he is of competent jurisdiction or for any eligible for breach of duty in connection with work benefits. which is reasonably owed an employer by an employee." CONCLUSION-Wolfe could be dis- (1982) Ind.Code charged 22-4-15-1 (emphasis for sup- cause because of a know- plied). ing violation of a reasonable and
enforced
employer
rule of an
dealing with
Appellate courts seemingly never
absenteeism, even though some of the ab-
stop repeating the admonition that statuto
justified
sences
by
be
illness.
words,
ry
phrases,
punctuation
should
given
plain,
be
their
ordinary, and usual
Resolution of
requires
this case
us to
meaning by construing the statute
interpret certain provisions of Indiana's un-
as a
whole. When the language used in the
employment compensation law:
statute is clear and unambiguous and the
"(b)
respect
With
periods,
benefit
es-
intent of
legislature
unmistakable,
is
6,
tablished on and
July
1980,
after
we must adopt
the meaning plainly ex
individual who has voluntarily left his
pressed. Murphy
State, (1980)
Ind.App.,
employment
good
without
in
cause
con-
322;
Brighton v. Schoffstall,
nection with the work or who was dis-
(1980)Ind.App.,
An 'or' follows penultimate item. The Drafting Manual the Indiana (e) 'Discharge just cause' as used Assembly General [Drafting in Manual] this section is to include but defined (1976), states this to preferred be the not be limited to: structure for Indiana statutes. An 'or' is (1) separation by employer initiated used designate when a series is to be for falsification of an employment appli- disjunctive. read in the The word 'dis- cation to obtain through junctive' as, is defined 'Designating subterfuge; conjunction ... which denotes an alterna- (2) knowing violation a reasonable tive, contrast, opposition or between the and uniformly an em- enforeed ideas it connects.' Reference to other ployer; definitions set forth in I.C. 35-41-1-2 attendance, unsatisfactory the in- if (compare entity' 'Governmental dividual good cannot show cause officer',) light Law-enforcement in of the tardiness; absences or drafting guidelines contained (4) damaging property Drafting Manual and the use through negligence; wilful legislature disjunctive conjunction of the (5) refusing instructions; obey 'or', conclusively establishes (6) reporting to work under the influence three present subdivisions alternative drugs aleohol or consuming or alconol definitions for an "included offense'. UEL absences, (footnote unreasonable under unexeused at 324-25 supra, Murphy, Sanps, 22-4-15-1(e)(2)." 1.0. omitted). 1A C.D. also See citations Staturory § 21.- ConstRuCcrION SurHERLAND Program is reasonable Jeffboat's Likewise, eight subdi (1972). at 90 of the em the interests protects it 22-4-15-1(e) out above set of IC visions em from an providing protection ployer by "just definitions present alternative e.g., one Program, abuses ployee who Thus, to conclude it is reasonable cause". "ill" one a week consistently who is "just be can malingerer). (sometimes referred to as knowingly violated cause" employ Further, protects the rule of uniformly enforced legitimate disregarding interests ee's absenteeism, de dealing with or more consec of three long-term illnesses cause", or "good spite the existence sharp contrast This is in days. utive unsatisfactory illness, of the for some *4 subjected, was to which Love company rule tendance. than that more simply provided rule that a pay unem refusal to justify the To period, in a six-month days of absence six under IC compensation benefits ployment reason, termina leads to of the regardless 22-4-15-1, initial burden had the Jeffboat Love, supra, at 480. tion. discharged for was showing that Wolfe of knowing viola of a Finally, the elements Then, of had the burden Wolfe just cause. estab were uniform enforcement tion and v. Re rebutting case. Tauteris Jeffboat's the acknowledgment of lished Wolfe's Employment Sec. Ind. Bd. the view of 16, existence, at record Program's 1192; N.E.2d Div., (1980) Ind.App., 409 it offer, dispute, that without Jeffboat's Em the Ind. Bd. v. Review Graham of Program's procedures, the complied with Div., (1979) Ind.App. 179 ployment See. 14-17, Program was the and that at record hearing, At the Jeff- 497, 699. 386 N.E.2d Hence, at 14. Record enforced. copy of the introduced boat correctly determined Deputy Referee the union) and with the (which negotiated was unemploy eligible for was not the Pro of Wolfe's violation established compensation Record at provisions. gram's absenteeism in accord just cause of acknowledged existence 14-17. Wolfe uniformly en- a reasonable ance with 16, it claimed Program, record at but dealing with absentee company plan foreed discharged for absentee unfair to be Foundaries American Steel ism. See Record at by illness. partially caused ism Ind. Sec. Bd. Review par 22, Having that absences decided 25. 12, N.E.2d Div., (1968) Ind.App. 237 to dis may lead tially caused illness they are long as just cause so charge for brief, Wolfe sub Appellee's In his uniform into a reasonable incorporated only (not address need at plan, we offered ly enforced a new rationale mits Program was hearing) for his award whether and uni knowingly violated it was whether another on benefits based 22-4-15-1: segment of IC formly enforced. in this "(d) provided disqualifications unreason say plan cannot We following subject to shall be section it allows some simply per se
able modifications: be accumulat by illness to caused absences thirteen-day benchmark ed toward (2) whose An individual excessively has been which Thus, medically substantiated we discharged. will be is the result absent and involuntari- who is disability and physical Heritage of Love v. dictum reject the broad having made reason- 478, unemployed after ly N.E.2d House, Ind.App., 463 employment maintain the efforts to able subjects an 482, which that "[a] em to dis- subject relationship not be shall excused, as as well discharge for ployee to 24, 1983, published qualification ordered upon Court's under this section for such separation." own May 1984) motion Ind.App., 463 N.E.2d 478. superficial Even a examina clearly We prerequisites have outlined the tion of Love discloses that provision for relief under this and one of there, here, as based its termination of the prerequisites those is that employee upon a written rule. required "the substantiation of disorder by the statute The decision of the must be made to the em- Review appeal- Board ployer, compels since the statute was, ed from Love pertinent, insofar as as follows: claimant to make 'reasonable efforts to maintain the relationship', April 6, "On 1981 the claimant was dis- requirement from her employment because presupposes em- ployer will be aware of the existence of a violation of the she [in incurred rule] problem medical physical and of the limi- more than six absences in a six-month tations arising from such disorder." period (regardless of the reason for the absences) and because she incurred more Raham v. Review Bd. the Ind. Employment than ten tardies in a peri- twelve-month Div., (1980) Se App., c. Ind. od. 606, 607. CONCLUSIONS: An individual who is provided Wolfe Jeffboat with a doe- cause is verifying tor's statement that he was ill rights provided benefit as in Chapter during days the final two of absence result *5 15-1 of the Employment Indiana Act. ing in discharge, his record at 'discharged The term cause' is stated at the hearing that "I my went to defined the Act to include unsatisfac- doctor the very next and he told me I attendance, tory if the individual cannot problem had a serious my lungs, with good show cause for absences or tardi- get told me I welding." needed to out of ness knowing violation of a reason- However, Record even if he suf uniformly able and enforced rule of an fered "physical from a disability", Wolfe employer. offered no evidence of discussions with case, In employer's this the rule regard- concerning recurring illnesses Jeffboat ing subjects attendance employee an to or the need "get to out of welding". With discharge regardless of the reason for required out the reasonable effort to main the absences. An employer's rule which tain the relationship, Wolfe is subjects an employee discharge not entitled to benefits un regard absences without to the reason der his alternative rationale. See Gold for those absences is not a 'reasonable man v. Review Bd. Employment the Ind. of rule' purposes disqualification Div., (1982) App., Se c. Ind. from benefits under 734; Huber v. Review Bd. the Ind. case, Chapter 15-1. In although this the Div., (1981) Ind.App., c. Se claimant have violated the rule of N.E.2d 1257. employer attendance, regarding Reversed and pro- remanded for further employer's regarding rule attendance ceedings consistent herewith. not a one Chapter under 15-1 result, of the Act. As a the referee SHIELDS, J., concurs. concludes that the claimant did not know- ingly violate a reasonable and SULLIVAN, J., opinion. dissents with employer." enforced rule of the SULLIVAN, Judge, dissenting. resolving In the central issue before us I respectfully dissent. ie., upon appeal, whether majority The casually cause, dismisses the ra was we were tionale of Heritage Love v. required House Conva to consider and determine whether (2d lescent Center January Dist. decided question the rule in was a reasonable rule pursuant to Love's whether STUDEBAKER, Appellant statement cause. Our Mark P. rule was (Defendant Below), subjects an that "[a] excused, unex- well as as discharge for absences, under I.C. is unreasonable cused EM the INDIANA BOARD OF REVIEW essential 22-4-15-1(e)(2)" therefore DIVISION SECURITY PLOYMENT case. in the Love made the determination (Plaintiff Involved, Appellee and, None acknowledges here majority opinion The Below). in Love quoted statement No. 2-1283A450. in that case determination to our essential distinguish made to attempt is Indiana, Appeals of Court in the rule rule Love District. First fact here considered. Inc. as Jeffboat, 20, 1984. June involve, as an es- cases that both remains determinations, em- factor sential with- punishes absences rule which ployer's are those absences regard to whether
out majori- If the good cause. with or without so it should do Love to disavow ty wishes
forthrightly. majority that Jeff- fully agree with
I enlightened rule is policy absentee
boat's weighted in favor liberally and is absences, late- Many employee. average sanctions before
nesses, permitted ete. are an eminent- It is permitted. discharge is or right of an in terms of policy
ly fair adequately staffed to maintain *6 to an not unfair rule is The
place of work. employ- to retain who seeks ad- frequent absences despite business.
versely affect continued right has no circumstances. under such however, the rule remains, The fact deny upon which to basis not a sufficient employee ter- of his own. through fault no
minated