Excessive Tardiness, Absenteeism Insufficient to Deny Unemployment Benefits

Attorney Murphy is particularly pleased at a recent unemployment benefits decision in favor of his client, a former Probation Department employee of the Trial Court.  Indeed, this case is one of Attorney Murphy’s most impressive unemployment wins given the serious evidentiary challenge against his client: the employer documented at least two dozen days of both tardiness and absenteeism over a three month period.

Prior to termination the employer held two disciplinary hearings, which included the client’s union representative.  Thereafter, the employer issued a termination letter stating among other things: “a discipline hearing was held…to determine whether there is just cause to discipline you for your continuing pattern of chronic tardiness and absenteeism…you have been counseled and disciplined on numerous occasions…your unwillingness or inability to change your behavior is unacceptable…I am ending your…employment.”  Accordingly, the Division of Unemployment Assistance (DUA) determined the client not eligible to receive benefits based on this disciplinary history.

Thereafter, the client retained Attorney Murphy’s legal services.  Attorney Murphy then identified several problems with the employer’s disciplinary actions.  Attorney Murphy prepared his client for direct and cross-examination, which resulted in the DUA deeming his client’s testimony as credible.  Attorney Murphy’s client testified that the employer failed to take into account his medical reasons and doctor’s notes prior to terminating him.  Finally, in his closing argument Attorney Murphy pointed out that the employer failed to provide sufficient evidence in accordance with the unemployment statute.  Indeed, both the client’s testimony and Attorney Murphy’s argument proved to be persuasive, and the hearing officer reversed the original determination.  O’Leary v. Office of the Trial Court, DUA Decision, Nov. 2013.

Attorney Murphy notes this case stands for the proposition that no matter what the reason for an employee’s termination, if an employer fails to adhere to the requirements of the unemployment statute the employee may still be eligible to receive benefits.

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