APPEAL FROM CAMPBELL CIRCUIT COURT HONORABLE FRED A. STINE, V, JUDGE ACTION NO. 11-CI-00384.
BRIEFS FOR APPELLANT: Patrick B. Shirley Frankfort, Kentucky.
BRIEF FOR APPELLEE CAMPBELL COUNTY DETENTION CENTER: Steven J. Franzen Campbell County Attorney Newport, Kentucky Robert E. List Assistant Campbell County Attorney Covington, Kentucky.
BEFORE: COMBS, STUMBO AND VANMETER, JUDGES.
The Kentucky Unemployment Insurance Commission (hereinafter referred to as the Commission) appeals from an order of the Campbell Circuit Court which reversed its decision to award unemployment benefits to Justin Fryman. We find that the circuit court erred in reversing the decision of the Commission; therefore, we reverse and remand.
Mr. Fryman began working for the Campbell County Detention Center on September 25, 2006. He was discharged on August 31, 2010, for allegedly violating the Detention Center's attendance policy. The policy states that employees are to be at work on time and ready to work and that excessive absenteeism would be grounds for disciplinary action. Mr. Fryman filed a claim for unemployment benefits on September 26, 2010. Kentucky Revised Statutes (KRS) 341.370(1)(b) disqualifies an employee from receiving benefits if the employee is discharged for misconduct connected with the work. KRS 341.370(6) states:
"Discharge for misconduct" as used in this section shall include but not be limited to, separation initiated by an employer for falsification of an employment application to obtain employment through subterfuge; knowing violation of a reasonable and uniformly enforced rule of an employer; unsatisfactory attendance if the worker cannot show good cause for absences or tardiness; damaging the employer's property through gross negligence; refusing to obey reasonable instructions; reporting to work under the influence of alcohol or drugs or consuming alcohol or drugs on employer's premises during working hours; conduct endangering safety of self or co-workers; and incarceration in jail following conviction of a misdemeanor or felony by a court of competent jurisdiction, which results in missing at least five (5) days work. [Emphasis added].
On October 14, 2010, Mr. Fryman received a notice that the Division of Unemployment Insurance found he was discharged for misconduct connected with work and disqualifying him from receiving unemployment insurance benefits. On October 28, 2010, Mr. Fryman appealed the determination to an unemployment referee. The referee conducted an evidentiary hearing on December 9, 2010. Mr. Fryman and David Fickenscher, Fryman's supervisor, both testified at the hearing. Mr. Fickenscher testified as to the absences and tardies Mr. Fryman had received in the six months leading up to his discharge. Each time Mr. Fryman was absent or tardy, a form was completed which listed the reason for missing work. Mr. Fickenscher testified that Mr. Fryman was absent from work on February 11, 2010, (for unknown reasons because the form was missing); April 7, 2010, (for a family illness); May 29, 2010, (for being ill with vomiting and a fever); June 12, 2010, (for an eye rash); June 13, 2010, (for continuation of the eye rash); July 19, 2010, (for family illness); and August 12, 2010, (for being sick). Mr. Fickenscher also testified that Mr. Fryman was tardy to work on March 1, 2010, (for unknown reasons because the form was missing); March 5, 2010, (for car problems); April 27, 2010, (for unknown reasons because the form was missing); May 30, 2010, (for oversleeping); July 28, 2010, (for oversleeping); August 5, 2010, (for unknown reasons because the form was missing); August 11, 2010, (for oversleeping); August 20, 2010, (for forgetting his time card and having to return home to get it); and August 25, 2010, (for car problems).
Mr. Fryman testified that he had valid excuses for his absences and tardies. He also provided evidence that he had been diagnosed with depression and testified that this was the cause of his oversleeping.
The referee reversed the determination and awarded Mr. Fryman unemployment benefits. The referee stated:
The determination becomes whether claimant's attendance, taken in its totality over the last six (6) months of his employment, contains a sufficient number of instances of unsatisfactory attendance that were without good cause, to compel a finding of misconduct under . . . KRS 341.370(6). The statute does not specify any mathematical formula for making such a determination; therefore, the rule of reason must prevail. That is, each instance of unsatisfactory attendance must be judged on its own merit, with a final determination of misconduct being made based on consideration of all of the individual determinations.
The direct, sworn testimony of the claimant, uncontested by the employer, was that a majority of the instances of unsatisfactory attendance was for good cause; specifically, the majority of claimant's absences and tardies were due to either his personal illness or the illness of his family members and car problems. Claimant has met his burden, by a preponderance of evidence, to establish good cause for his unsatisfactory attendance.
On December 21, 2010, the Detention Center appealed the referee's decision to the Commission. The Commission then performed a de novo review of the application for benefits and the record compiled by the referee. On February 28, 2011, the Commission issued an order affirming the referee's ...