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Ky.: Minor Absenteeism Grounds for Denial of Jobless Benefits

By Kirk Rafdal  8/5/2013

Despite his brief unexcused absence, an employee nevertheless had engaged in misconduct and therefore was disqualified from receiving unemployment insurance benefits, the Kentucky Supreme Court ruled.

Western Kentucky Coca-Cola Bottling Company, Inc. (WKCC) hired Trevor Runyon as a night loader at its soft drink distributorship in 2006. Runyon generally worked five six-hour shifts every week with Wednesdays and Saturdays off, but began working a Wednesday shift in 2009 to ensure full-time employment status. During Runyon’s tenure at WKCC his performance was not entirely satisfactory. In 2008, he was suspended for three days for tardiness and absenteeism. He also was counseled for being difficult to work with and creating conflict with his coworkers.

On Sunday, March 22, 2009, Runyon was scheduled for his normal shift, but failed to report to work. He likewise was absent the following Monday without notification. His supervisor claimed Runyon did not phone either day to notify his employer of his absence. When Runyon appeared on Tuesday, March 24, for his regular shift, he asked his supervisor if he could work an extended Wednesday shift to compensate for the hours he missed on Sunday and Monday. Runyon’s boss agreed, but reprimanded Runyon for not having called in to report his absences.

When Runyon reported for his Wednesday shift, but clocked out just two hours later, his supervisor told him he could not “come and go as he pleased.” Runyon replied that he was “taking care of business” and left with no further explanation. The next day Runyon was terminated for unexcused absences, chronic tardiness and leaving his Wednesday shift without justification.

Though the state’s Division of Unemployment initially awarded Runyon full compensation, WKCC convinced a referee to set aside the decision on the grounds that Runyon had been discharged for misconduct.  Runyon appealed to the Kentucky Unemployment Insurance Commission (KUIC), which reversed, and WKCC unsuccessfully appealed to a circuit court and the state’s court of appeals.

In its ruling, the appeals court relied on the findings of the KUIC — namely that Runyon had not been “advised that his job was in jeopardy” and that he was not officially scheduled to work on Wednesdays. The court concluded that Runyon’s minor unexcused absences on Sunday and Monday were not sufficient to trigger employee misconduct, and moreover that Runyon had not been given adequate notice that such absences would result in termination.

The state supreme court disagreed with the KUIC’s findings of fact and noted that during the hearing Runyon answered affirmatively when asked if he had been “told that anything, any incidents after [the 2008 suspension] would result in your discharge.” This showed that Runyon had actual notice that he could be terminated for future absenteeism, the court said. Because Runyon had made a practice of working virtually every Wednesday to maintain his full-time status, the court also found that Wednesdays could reasonably be considered a regularly scheduled day, and Runyon was not entitled to walk away from his shift without an excuse. Regardless, Runyon’s unexcused absences on Sunday and Monday were sufficient to justify his termination and thus qualify as employee misconduct, the court said.

The court reversed and remanded with instructions to revoke Runyon’s unemployment benefits.

W. Ky. Coca-Cola Bottling Co. v. Runyon, Ky., No. 2011-SC-000784-DG (June 20, 2013).

Kirk Rafdal, J.D., is a staff writer for SHRM.

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