Attorneys for Appellee
Karen M. Freeman-Wilson
Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorney General
Appellee Pro Se
REVIEW BOARD, et. al.
) Court of Appeals No.
May 30, 2001
This determination by the Court of Appeals appears to have been correct and
I would affirm it. However, I would grant transfer to address an
issue in this case identified by the Unemployment Insu
rance Review Board (Board).
The rule under which the employee was terminated here was a no-fault attendance
policy maintained by his employer. The policy assigned a certain number of
demerit points to various types of attendance violations; when a minimum number of
demerit points are a
ccumulated, a specified sanction is imposed. An employee accumulating
more than 500 demerit points was subject to immediate termination. Here 100
demerit points were assigned whenever an employee missed work for whatever reason and
300 demerit points were assigned for being absent without reporting. On an
annual basis, each employee was entitled to five sick days, two personal business
days, two periods of three or more days for illnesses requiring medical treatment,
and accrued vacation days. Under the policy, an employee could accumulate sufficient
demerits to be discharged simply by being sick on more than five (non-consecutive)
days through no fault of his or her own.
The Board believes that violations of such no-fault attendance policies do not co
just cause for termination under the Act. The Board contends that the
purpose of the Act is to provide payment to persons unemployed through no
fault of their own and that the effect of denying benefits to persons
dismissed for violating no-fault attendance policies is to deny benefits to persons who
miss work through no fault of their own.
The Legislature has declared it to be the public policy of the State
"to provide for payment of benefits to persons unemployed through no fault of
their own." Indiana Code § 22-4-1-1. I believe we should grant
transfer to make clear that benefits cannot be denied to an employee dismissed
for absence due to legitimate illness where the attendance rule at i
not provide sufficient time off for legitimate illness. To do otherwise denies
benefits to persons who miss work through no fault of their own in
contravention of the Unemployment Insurance Act.
However, as noted at the outset, I agree that the employee here is
not entitled to relief. While the Unemployment Insurance Review Board believed the
employer's attendance po
licy was unreasonable in that it did not allow employees sufficient
time off for legitimate illnesses, the employee terminated here was not the victim
of the no-fault provision: he was at fault for not reporting in as
BOEHM, J., concurs.