STATE OF RHODE ISLAND
AND PROVIDENCE PLANTATIONS
PROVIDENCE,
SC DISTRICT COURT
JOSE VIEIRA
:
V. : A.A. 03-47
DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW :
D E C I S I O N
DEROBBIO, C.J.
This matter is before the Court on the complaint of Jose Vieira, 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 upheld the finding of the Referee that the claimant, Jose Vieira
was not entitled to receive employment security benefits.
The travel of the case is as follows. The claimant was employed for eight years
by the employer. The claimant filed for Employment Security benefits on January
3, 2003. In a decision dated January 14, 2003, the Director determined that
the claimant left his 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
of the decision on January 22, 2003. A hearing on the appeal was held on February
12, 2003, at which time the claimant and the employer appeared and testified.
The Referee held the claimant was not entitled to receive unemployment security
benefits, based on the determination that claimant was discharged for misconduct
in connection with his employment and was disqualified pursuant to Rhode Island
General Laws § 28-44-18.
Thereafter, a timely appeal was filed and the matter was heard by the Board
of Review. The Board determined that the Referee's decision was a proper adjudication
of the facts, and upheld the Referee's decision. Thereafter, Jose Vieira 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
a proper adjudication of the facts and that the claimant was discharged under
disqualifying circumstances pursuant to Section 28-44-18 was supported by reliable,
probative, and substantial evidence in the record and whether or not it was
clearly erroneous.
The Board of Review adopted the following findings of fact of the Referee:
"I find by preponderance of testimony and evidence the following findings
of fact: The claimant worked as a baker for Homestead Baking Company. The claimant
worked for this employer for eight years. The employer has a policy that the
president reviews any disciplinary actions on any individual with more than
one year of employment. The claimant is part of a bargaining unit.
During the calendar year 2002 the claimant received five written warnings. The
April 16, 2002 warning suggested suspension for attendance problems. The president
reversed the suspension and had the claimant counseled. Written warnings were
issued on May 2 and June 19, 2002. The president reviewed the actions and determined
no further action to be taken, but counseling was provided to the claimant relevant
to the harm being done to the employer. On July 21, 2002, the claimant was suspended
for a no call/no show. On October 31, 2002 the claimant was once again given
a written warning. He spoke directly with the president of the company regarding
his no call/no show. On December 20, 2002, the claimant failed to appear for
work or call in his absence. According to the October 31, 2002 final warning
the claimant was dismissed. The claimant read each of the disciplinary slips
issued during the calendar year 2002."
The Board of Review adopted the following conclusions of the Referee:
"While the Director determined that the claimant left work voluntarily
without good cause within the meaning of Section 28-44-17 of the Rhode Island
Employment Security Act, I find that he did not leave voluntarily. He was discharged.
To be determined, therefore, is whether or not he was discharged under disqualifying
circumstances under the provisions 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.
Section 28-44-18 provides, in part, as follows:
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.
In cases of termination the employer bears the burden to prove by a preponderance
of credible testimony and evidence that the claimant committed an act or acts
of misconduct as defined by the law in connection with his work. It must be
found and determined that the employer has met their burden.
In the instant case, the claimant continually acted against the employer's best
interest by his failure to comply with the employer's attendance policies. During
his most recent year of employment he was given ample opportunities, as evidenced
by the written warnings, to telephone in absences or late arrivals in a timely
manner. The claimant disregarded the warnings and suspension. Therefore, I find
and determine the claimant was discharged under disqualifying circumstances."
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.
On appeal to this Court, the claimant filed a motion to remand this matter to
the Board of Review for the following stated reason:
"That more testimony is needed as to Petitioner reasons for his absences
and tardiness from work at Homestead Bakery in order to determine whether Petitioner's
absences and tardiness constitutes misconduct as defined within R.I.G.L. §
28-44-12."
Also, in his memorandum of law, claimant asks for reversal of the judgment of
the Board of Review; and alternatively, to remand this matter to the Board of
Review for additional testimony on the issue of whether the tardiness and absences
of the claimant were justifiable and therefore not misconduct.
A review of the record demonstrates that immediately upon completion of the
employer's testimony the hearing officer, the Referee, asked if there were any
reasons for the absences and tardiness, giving the claimant an opportunity to
respond. He did respond as follows (See Transcript of Referee Hearing pages
22 and 23):
"REF: Thank you. Mr. Vieira, do you have any questions for Mr. Vican on
his testimony, sir?
CLT: Just about on the COBRA, I had never received anything from, about the
COBRA, on insurance."
* * *
"REF: Well, coming back to you, sir, since we reversed, ah, directions
here, do you have any reasons for these absences or not telephoning in your
absence, tardiness?
CLT: I believe on one of them when I got suspended in October, I, um, came back
with a doctor's note. I was out for, ah, two days I believe. So, I had, um,
(inaudible). It's, it wasn't stated on that 'cause that day I did not show up
and then I went to the doctor and he - I was out for two days afterwards 'cause
I had (inaudible). But I didn't, I didn't call. So it was my fault."
Before the hearing was concluded, again the Referee asked the parties if there
were any further questions or anything to add. (See Transcript of Referee Hearing
page 24).
"REF: . . . Are there any questions, anything further to add, gentlemen?
CLT: No, sir."
The record is clear, and there is sufficient and substantial evidence, that
the claimant had ample opportunity to ask questions of the employer and ample
opportunity to respond to the questions of the Referee to explain such absences
and tardiness as alleged by the employer.
Therefore, the motion and prayer for relief of the claimant to remand to the
Board of Review for the presentation of additional evidence is denied.
There is evidence on the record, presented by employer, regarding tardiness,
absences, warnings, counseling and suspensions, which if believed by the trier
of fact, is sufficient to satisfy the standard set forth in Turner v. Department
of Employment Security.
This Court has held that repeated tardiness and absences can be the basis for
misconduct when such absences and tardiness is without good cause. The issue
of good cause is a question of fact to be determined by the trier of facts.
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.