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Judges split in termination ruling

March 20, 2009

In an opinion involving whether a worker was fired for just cause after multiple excused absences, the majority acknowledged the split in the Indiana Court of Appeals regarding the reasonableness of "no-fault" attendance policies.

In Lisa M. Beckingham v. Review Board of the Indiana Department of Workforce Development and Cenveo Corp., No. 93A02-0808-EX-771, Lisa Beckingham appealed the Unemployment Insurance Review Board's denial of her application for unemployment benefits. The board affirmed the administrative law judge's finding she had been fired for just cause for violating Cenveo's attendance policy. Cenveo has an excuse-based policy and the company handbook provided that an employee can be fired for excessive excused absences or tardiness within a one-year period. Beckingham had 14 ½ excused absences within one year.

On appeal, she argued the board improperly determined Cenveo fired her for just cause, that the board should have used Indiana Code Section 22-4-15-1-(d)(3) instead of (d)(2) to rule whether she was terminated for just cause, and the company's attendance policy is unreasonable because it subjected her to termination regardless of her reason for absences.

The appellate court addressed the issue of "no-fault" attendance policies in the Jan. 29, 2009, opinion John D. Giovanoni II v. Review Board of the Indiana Dept. of Workforce Development and Clarian Health Partners, Inc., No. 93A02-0806-EX-545. The majority in that case ruled Love v. Heritage House Convalescent Center, 463 N.E.2d. 478, 482 (Ind. Ct. App. 1983), provided a more sound model for determining eligibility for unemployment benefits when the employee is fired for attendance issues.

But in the instant case, Senior Judge George Hoffman Jr. and Judge Carr Darden held the reasoning set forth in Jeffboat, Inc. v. Review Board of Indiana Employment Security Decision, 464 N.E.2d 377 (Ind. Ct. App. 1984), and Beene v. Review Board of the Indiana Department of Employment and Training Services, 528 N.E.2d 842 (Ind. Ct. App. 1988), is the better rationale for determining the reasonableness of an employer's attendance policy. The majority affirmed Beckingham was discharged for just cause under section (d)(2) and that that I.C. Section 22-4-15-1(d) is disjunctive and an attendance issue may be analyzed under section (d)(2) or section (d)(3).

Judge Edward Najam dissented, voting to reverse the board's determination of Beckingham's claims and remand with instructions it consider her claim under (d)(3). Judge Najam wrote he would follow the reasoning of the majority in Giovanoni that termination for unsatisfactory attendance must be analyzed solely under section (d)(3).

The Review Board of the Department of Workforce Development filed a rehearing request in the Giovanoni case March 2.

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