RENDERED: September 6, 1996; 10:00 a.m.

NOT TO BE PUBLISHED

NO. 95-CA-001162-MR MASONIC HOMES OF KENTUCKY, INC. APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE WILLIAM E. McANULTY, JR., JUDGE

ACTION NO. 94-CI-002549

KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION and MARY L. GRIFFIN APPELLEES

OPINION AFFIRMING

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BEFORE: DYCHE, JOHNSON and KNOPF, Judges. JOHNSON, JUDGE: Masonic Homes of Kentucky, Inc. (Masonic Homes) appeals from a Jefferson Circuit Court order entered April 10, 1995, that upheld a decision by the Kentucky Unemployment Insurance Commission (Commission) that Mary L. Griffin (Griffin) had been discharged for reasons other than misconduct connected with her work and was entitled to unemployment insurance compensation. We affirm.

Griffin was hired on June 2, 1992, by Masonic Homes as a certified medical technician. Shortly after Griffin was hired, Masonic Homes instituted a "no fault" absentee policy which called for termination following ten unauthorized absences regardless of reason. 

The record reveals that apart from her tenth absence,1 Griffin's preceding nine absences were due to personal illness with each supported by a doctor's excuse.

Griffin's employment file reveals the following actions taken against her for absenteeism: A written warning issued August 16, 1993, showing that she had been absent six times since June 2, 1993; verbal counseling on August 31, 1993, for an unauthorized absence on August 23, 1993, following the previous written warning; written warning explaining excessive absenteeism based upon an unauthorized absence on October 22, 1993; suspension without pay for three days beginning November 16, 1993, because of unauthorized absences occurring on October 28 and November 3, 1993, with a warning that further absences would warrant termination. On November 28, 1993, Griffin called Masonic Homes and left a message that she had to stay home with her daughter who was pregnant and under doctor's orders not to be left alone and that no one else was available. Griffin was discharged the following day.

Griffin filed for unemployment benefits, which were denied following an initial determination of employee misconduct. See Kentucky Revised Statutes (KRS) 341.370(1)(b). Griffin appealed to the referee, who, during the rehearing, allowed inquiry into the reasons for Griffin's tenth absence. The referee then set aside the original determination and found that Griffin had been discharged for reasons other than misconduct, and that "good cause" existed for her tenth absence.1

Masonic Homes appealed the referee's decision to the Commission which affirmed by order dated April 28, 1994. Masonic Homes then filed a complaint in Jefferson Circuit Court contesting the Commission's determination. The circuit court affirmed and this appeal followed.

Subsequent to the filing of briefs in this appeal, this Court rendered Alliant Health System v. Kentucky Unemployment Insurance Commission , Ky.App., 912 S.W.2d 452 (1995), in which it was held that discharge based upon a violation of a "no-fault" attendance policy does not automatically preclude an employee's receipt of statutory unemployment compensation benefits. As stated in that decision, KRS 341.370(6) provides that "if the employee can show 'good cause for [the] absences or tardiness,' he or she may be entitled to statutory benefits." Id. at 454.

There being substantial evidence in the record to support the Commission's determination that Griffin's absences were for good cause, the decision below is affirmed. See Brown Hotel Co. v. Edwards, Ky., 365 S.W.2d 299, 302 (1962).

ALL CONCUR.

BRIEF FOR APPELLANT: Hon. William A. Buckaway Hon. Thomas J.B. Hurst TILFORD, DOBBINS, ALEXANDER, BUCKAWAY & BLACK Louisville, KY

BRIEF FOR APPELLEE, COMMISSION: Hon. Beverly Haverstock Hon. Randall K. Justice Frankfort, KY

BRIEF FOR APPELLEE, GRIFFIN: Hon. Herbert L. Segal SEGAL, ISENBERG, SALES, STEWART, CUTLER & TILLMAN Louisville, KY