IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY BEAR-GLASGOW DENTAL, L.L.C., Employer-Below, Appellant, v. AYESHA EDWARDS, Claimant-Below, Appellee, and UNEMPLOYMENT INSURANCE APPEAL BOARD, Appellee. ORDER AND NOW, TO WIT, this 29th day of May, 2007, upon consideration of the submissions of the parties and the record below, it appears to the Court that: 1. Bear-Glasgow Dental, L.L.C. (“Employer”) appeals from the decision of the Unemployment Insurance Appeal Board (“UIAB”), which reversed the decision of the Claims Referee. The UIAB held that Ayesha Edwards (“Claimant”) was entitled to receive unemployment benefits because the Employer did not have just cause to terminate her employment. The Claimant did not file a response to the Employer’s appeal and, on October 13, 2006, Claimant was notified that the Court would decide the matter based on the papers that had been filed. 2. The Claimant worked for the Employer as a dental assistant from October 5, 2004 until November 19, 2005, earning $15.25 per hour. The Claimant was terminated on November 19, 2005, for her excessive tardiness, and because she wore jeans to work in violation of the Employer’s dress code. 3. On September 8, 2005, the Claimant received a written warning from the Employer regarding tardiness, absences, and last-minute shift changes. The Employer warned that excessive absences violated the Employer’s attendance policy set forth in the Employer’s handbook. The Claimant signed the warning, which indicated that any future absences would result in her dismissal. 4. From September 8, 2005 until her termination on November 19, 2005, the Employer documented that the Claimant was late to work on fifteen occasions, eight of which were considered excessively tardy. The Employer considered the Claimant excessively tardy when she appeared more than ten minutes late for work. 5. On November 18, 2005, the Claimant was sent home, because she arrived an hour and a half late for work. She was also wearing jeans and not clinical attire. The Claimant argued that she was not scheduled to work on November 18, but only appeared to perform a tooth whitening procedure on a patient at the request of a fellow employee. The Claimant knew that wearing jeans was a violation of the Employer’s dress code, but she assumed she could appear in jeans because she was only performing the whitening procedure. Although the Claimant claimed that she was not scheduled to work, she called the Employer to advise that she would be late because her bus was late. The Claimant was sent home early and advised that she would meet with the officer manager on Monday to discuss the incident. 6. On Saturday, November 19, 2005, the Claimant stated that she was not scheduled to work, but she needed extra money, so she asked a co-worker if she could take her shift. The Claimant conceded that she never confirmed with the co-worker if they were switching. On Saturday morning, the Claimant made several phone calls to the co-worker and the office manager, trying to ascertain who was scheduled to work. The parties agree that the Claimant was scheduled to work at 9:00 a.m. When she did not arrive until 9:40 a.m., the Claimant was fired. 7. The Employer’s handbook outlines the standard of conduct expected from its employees. These standards include attendance; the use of sick, vacation, and personal time; and personal appearance. The handbook requires dental assistants to wear clinical attire that conforms to OSHA standards, and forbids employees from wearing jeans or jean material. On October 7, 2004, the Claimant signed an acknowledgment that she read and understood these standards. 8. The Claimant’s application for unemployment benefits was denied by a Claims Deputy on December 12, 2005. The Claimant appealed the decision, and was granted a hearing before a Claims Referee. On January 18, 2005, the Referee held that the Employer had just cause to fire the Claimant, because her continued tardiness after a written warning constituted wilful and wanton misconduct. Moreover, the Claimant appeared to work in jeans, in violation of the Employer’s dress code and despite two previous verbal warnings. The Referee denied unemployment benefits to the Claimant. The Claimant appealed the Referee’s decision to the UIAB. 9. Following a hearing on April 19, 2006, the UIAB reversed the Referee’s decision, holding that the Employer’s September 2005 written warning was ineffective, because the Employer tolerated fifteen subsequent late appearances. The UIAB construed the Employer’s failure to act as a condonation of the behavior. Relying on Ortiz v. Unemployment Ins. Appeal Bd.,1 the UIAB held that the Employer was required to provide a second, unequivocal warning to the Claimant. Accordingly, the Employer did not have just cause to discharge the Claimant. 10. This Court reviews a decision of the UIAB to determine if the findings of fact are supported by substantial evidence, and if the decision is otherwise free from legal error.2 11. An individual who has been discharged from employment for just cause is disqualified for unemployment insurance benefits.3 “Just cause” has been defined as “a wilful or wanton act in violation of either the employer’s interest, or of the employee’s duties, or of the employee’s expected standard of conduct.”4 When establishing the employee’s expected standard of conduct, the Court may consider the provisions of the employer’s handbook.5 Finally, this Court has held that, generally, an employee’s poor attendance will support a finding of just cause for dismissal.6 12. The Employer argues that the UIAB’s decision should be reversed, because the UIAB misapprehended the Ortiz decision. In Ortiz, the Court held that an employer, who had accommodated the schedule of an employee with a seriously ill spouse for six months, was required to provide the employee with an unambiguous warning before terminating him for tardiness and absenteeism.7 The Court emphasized that its decision provided a narrow exception, based on the specific circumstances, and “should not be construed as holding that a warning is required in every instance before a discharge for absenteeism or tardiness is valid.”8 13. In this case, the UIAB erred as a matter of law in extending the holding in Ortiz to require an employer, who provided the employee with a written warning, to renew that warning when intervening violations of the employer’s attendance policy have occurred.9 The September 2005 written warning put the Claimant on sufficient notice regarding her tardiness, absences, and last-minute shift changes. The subsequent fifteen instances of the Claimant’s tardiness before she was ultimately fired on November 19, 2005, did not constitute the employer’s acquiescence. Accordingly, the Claimant was on notice that tardiness was a violation the Employer’s attendance policy, and the Employer was not required to provide an additional warning. 14. There is substantial evidence in the record to show that the Employer had just cause to terminate the Claimant. The Claimant was warned that continued absences, including shift changes or tardiness, would result in her dismissal. Despite this warning, the Claimant was late to work fifteen times between September 8 and December 18, 2005. In addition, the Claimant’s last-minute shift changing on November 19, 2005, not only created confusion, but ultimately caused the Employer to be without a dental assistant. Finally, the Claimant knowingly violated the Employer’s dress code by wearing jeans on November 18, 2005, after being verbally warned on two previous occasions. 15. For the aforementioned reasons, the decision of the UIAB is REVERSED. IT IS SO ORDERED.