DEROBBIO, C.J. This matter is before the Court on the complaint of Ranti Aderoju, filed pursuant to Rhode Island General Laws § 42-35-15, seeking judicial review of a final decision rendered by the respondent, Board of Review, Department of Labor and Training, which reversed the finding of the Referee that the claimant, Ranti Aderoju was entitled to receive employment security benefits.

The travel of the case is as follows. The claimant was employed for two years. Her last day of work was September 11, 2001. She filed a claim for Employment Security benefits on October 29, 2001.

In a Director’s decision dated November 19, 2001 it was determined that the claimant voluntarily left her job without good cause within the meaning of Section 28-44-17 of the Rhode Island Employment Security Act. The claimant filed a timely appeal.

A hearing was held before a Referee on December 10, 2001 at which time the claimant appeared and testified. No employer representative appeared at the hearing, although duly notified. On December 11, 2001 the Referee issued a decision in which he reversed the determination of the Director. The employer appealed to the Board of Review.

A hearing was held before the full Board of Review on January 3, 2002. The claimant and an employer representative appeared and testified at the Board hearing.

A majority of the Board determined that the Referee’s decision was not a proper adjudication of the facts, and reversed the Referee's decision. Thereafter, Ranti Aderoju filed a complaint for judicial review; jurisdiction for review of the decisions of the Board is vested in the District Court by Rhode Island General Laws § 28-44-52.

The standard of review is provided by Rhode Island General Laws § 42-35-15(g), a section of the state Administrative Procedures Act, which provides as follows:

42-35-15. Judicial review of contested cases.

(g) The court shall not substitute its judgment for that of the

agency as to the weight of the evidence on questions of

fact. The court may affirm the decision of the agency

or remand the case for further proceedings, or it may

reverse or modify the decision if substantial rights of

the appellant have been prejudiced because the

administrative findings, inferences, conclusions, or

decisions are:

 

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable,

probative, and substantial evidence on the

whole record; or

(6) Arbitrary or capricious or characterized by abuse

of discretion or clearly unwarranted exercise of

discretion.

 

Thus, on questions of fact, the District Court ". . . may not substitute its judgment for that of the agency and must affirm the decision of the agency unless its findings are clearly erroneous." Guarino v. Department of Social Welfare, 122 R.I. 583, 584, 410 A.2d 425 (1980) citing Rhode Island General Laws § 42-35-15(g)(5). The Court will not substitute its judgment for that of the Board as to the weight of the evidence on questions of fact. Cahoone v. Board of Review of the Department of Employment Security, 104 R.I. 503, 246 A.2d 213 (1968). Stated differently, the findings of the agency will be upheld even though a reasonable mind might have reached a contrary result. Cahoone v. Board of Review of Department of Employment Security, 104 R.I. 503, 246 A.2d 213, 215 (1968). See also D'Ambra v. Board of Review, Department of Employment Security, 517 A.2d 1039, 1041 (R.I. 1986).

The Court has recognized that a liberal interpretation shall be utilized in construing and applying the Employment Security Act:

. . . eligibility for benefits is to be determined in the light of the expressed legislative policy that "Chapters 42 to 44, inclusive, of this title shall be construed liberally in aid of their declared purpose which declared purpose is to lighten the burden which now falls upon the unemployed worker and his family." G.L.1956, § 28-42-73. The legislature having thus declared a policy of liberal construction, this court, in construing the act, must seek to give as broad an effect to its humanitarian purpose as it reasonably may in the circumstances. Of course, compliance with the legislative policy does not warrant an extension of eligibility by this court to any person or class of persons not intended by the legislature to share in the benefits of the act; but neither does it permit this court to enlarge the exclusionary effect of expressed restrictions on eligibility under the guise of construing such provisions of the act. Harraka v. Board of Review of Department of Employment Security, 98 R.I. 197, 201, 200 A.2d 595, 597 (1964).

The issue before the Court is whether the Board’s determination that the Referee’s decision was not a proper adjudication of the facts and that the claimant was discharged for misconduct in connection with the employment was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.

A majority of the Board of Review made the following findings of fact:

"The claimant’s last day of work was September 11, 2001. She worked for approximately two years as a certified nursing assistant. She had been out on sick leave from July 21, 2001 through September 9, 2001. She worked on September 11, 2001. She was out sick on September 12, 2001. She was not scheduled for work from the [sic] September 14 through the [sic] September 16, 2001. However, she was scheduled to work on the [sic] September 13 and September 17, 2001. On neither of those days did the claimant contact her employer to indicate that she would not be appearing for work. The employer attempted to contact her on the [sic] September 14, 2001 and left messages without receiving a return call. The claimant had previously received a warning from her employer regarding violation of the employer’s no call/no show policy."

A majority of the Board of Review made the following conclusions:

"The issue in this case is whether or not the claimant was discharged under disqualifying circumstances within the meaning of Section 28-44-18 of the Rhode Island Employment Security Act.

In order to impose a disqualification under the provisions of Section 28-44-18, there must be proof that the person who was discharged committed an act of misconduct in connection with the work.

Based upon the evidence available to the Board the claimant’s failure to call her employer to notify the employer that she would not be at work on two consecutive assigned days constitutes, in our opinion, misconduct within the meaning of Section 28-44-18."

Section 28-44-18 of the General Laws of the state of Rhode Island provides:

28-44-18. Discharge for misconduct. -- An individual who has been discharged for proved misconduct connected with his or her work shall thereby become ineligible for waiting period credit or benefits for the week in which that discharge occurred and until he or she establishes to the satisfaction of the director that he or she has, subsequent to that discharge, had at least eight (8) weeks of work, and in each of that eight (8) weeks has had earnings of at least twenty (20) times the minimum hourly wage as defined in chapter 12 of this title for performing services in employment for one or more employers subject to chapters 42 - 44 of this title; provided, however, that any individual who is required to leave his or her work pursuant to a plan, system, or program, public or private, providing for retirement, and who is otherwise eligible, shall under no circumstances be deemed to have been discharged for misconduct. However, if an individual is discharged and a complaint is issued by the regional office of the national labor relations board or the state labor relations board that an unfair labor practice has occurred in relation to the discharge, the individual shall be entitled to benefits if otherwise eligible. For the purposes of this section, "misconduct" shall be defined as deliberate conduct in willful disregard of the employer's interest, or a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, provided that such violation is not shown to be as a result of the employee's incompetence. Notwithstanding any other provisions of chapters 42 - 44 of this title, this section shall be construed in a manner which is fair and reasonable to both the employer and the employed worker.

The standard for defining "misconduct" under section eighteen was provided by the Rhode Island Supreme Court in Turner v. Department of Employment Security, 479 A.2d 740, 741-42 (R.I. 1984), in which the Court quoted from Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636, 640 (1940):

'[M]isconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute.

A review of the record shows there is evidence that the claimant was out on sick leave from July 21, 2001 to September 9, 2001 when she was to return, according to her doctor’s note. There is evidence on the record that she did not return on the 9th of September. There was evidence on the record that she returned to work on September 11, 2001. She called in sick on September 12, 2001 and she was a no call/no show employee on the 13th. She was not scheduled to work on the 14th, 15th or 16th. She did not return to work on September 17, 2001. The record shows that there is a company policy that if there is no call/no show for two consecutive days, then the party may be terminated.

Pages 2 and 3 of the transcript:

"Chairman. Read the...and you read the decision of the Referee.

Emp. I did.

Chairman. Okay and you can tell us then where you disagree with that decision.

Emp. Ranti was out on sick leave from July 21st with a doctor’s note to return on September 9th. She didn’t return.

INTERRUPTION.

Chairman. July 21 you said.

Emp. Yes.

Chairman. Okay.

Emp. She didn’t return on the 9th. When I called her she said she wasn’t going to be in until the 11th. She worked the 11th, called in sick on the 12th and then was a no call no show on the 13th and the 17th ...was not scheduled to work on the 14th, 15th and 16th. And it is our policy...that if someone is a no call no show for two consecutive work days that they are considered to be self terminated, voluntarily.

Chairman. Alright, what happened...what happened between the 3rd of December and the 11th, you said she was scheduled to return on the 3rd.

Page 4 of Transcript:

Emp. Which were her two scheduled days. She didn’t respond to any phone calls or any request to come in for a meeting in either.

Chairman. Alright so you just didn’t have any further contact with her at that point.

Emp. After that...after the 17th...actually on the 18th I spoke with our corporate office to...you know to see where...where we should proceed and they agree that because she did not show for those two scheduled days that she had considered herself...resigned her position. I did try calling her on several occasions and then she did return a call at one point and she said she just didn’t come in because she was sick."

A review of the entire record demonstrates that there is evidence to show that the claimant failed to call her employer to notify her employer that she would not be at work on two consecutive assigned days, in violation of the no call/no show company policy.

This conduct rises to the level of misconduct as defined in Turner v. Department of Employment Security.

A review of the entire record demonstrates that there is substantial, probative and reliable evidence to support the findings of fact, conclusions and decision of the Board of Review.

On findings of fact, as to the weight of the evidence, this Court shall not substitute its judgment for that of the administrative agency.

The scope of judicial review by the Court is limited by Section 28-44-54 which in its pertinent part provides:

28-44-54. Scope of judicial review - Additional evidence - Precedence of proceedings. - The jurisdiction of the reviewing court shall be confined to questions of law, and, in the absence of fraud, the findings of fact by the board of review, if supported by substantial evidence regardless of statutory or common law rules, shall be conclusive.

 

Upon careful review of the evidence, this Court finds that the decision of the Board was not "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record," and that said decision was not "arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Rhode Island General Laws § 42-35-15(g)(5)(6).

Accordingly, the decision of the Board is hereby affirmed.