Initial Claim Level

The claimant was discharged due to tardiness and attendance policy violation by a large grocery retailer.  All relevant documents for the separation were provided in response to the initial claim including:

The claimant was denied unemployment benefits at the initial claim level. An appeal was filed and an unemployment hearing was scheduled

 

Hearing Level

Employer’s Case:

Witnesses:     Store HR Manager

Assistant Store Manager

Store Manager (unavailable due to no longer with company)

Documentation:                                 Attendance Policy – Implemented August 2012

Employee Acknowledgement:        Signed August 2012

1st Written Warning:                        Given & signed November 2012

2nd Written Warning:                      Given and signed April 2013

Final Warning:                                  Given and signed May 2014

Termination:                                     Given and signed January 2015

Employer’s witnesses testified the policy was a point based attendance and tardiness system. The policy had been implemented when the new store manager took over in July 2012.  The claimant had received the policy and signed acknowledgement as noted on the document. The policy indicated that 18 points in a rolling 12-month period was cause for discharge. The employer also testified that the claimant was consistently tardy and included the dates and reasons for tardiness.  Reasons ranged from hands being asleep, eyes burning, woke up late.  The times ranged from 15 minutes to 2 hours late. They indicated there was a grace period of 5 minutes. The warnings were issued per the policy for progressive discipline.   As well, the employer witnessed stated the claimant should have been discharged in 2014 due to her excessive overage but they were attempted to give her another chance due to her length of employment, which was 14 years.

Claimant’s Case:

The claimant testified that she had a strange medical issue that resulted in occasionally having bloodshot eyes or her hands being asleep and then she couldn’t drive to work. She acknowledged that she was frequently tardy, but that the store manager had told her she had a 15 minute grace period.  She pointed out that previously all of her warnings had included points only 15 minutes or longer. She stated that the day prior to the final incident she filed paperwork to take time off for an upcoming surgery. That was when the final paperwork was given to her terminating her employment. That paperwork included times she was tardy by 12 minutes. She also testified she never knew which incidents resulted in a a point or which were cleared and never knew where she was within the point system.

Hearing Decision:

The claimant was granted unemployment benefits.  The Hearing Officer ruled that the employer did not give sufficient notice of the policy violation.

Guidelines

  1.  Warnings related to attendance and tardiness should typically be given within a 12-month period.  This is particularly important with a point based system.  Giving an annual warning is not considered sufficient enough notice that they are in violation of the policy and headed toward a discharge.
  2. Point based attendance and tardiness policies are difficult because they typically do not allow for leniency when it comes the reasons for the absence or tardy.  This can cause the state unemployment agency to determine that the reason was irrelevant and therefore not misconduct.
  3. In this case the issue of determining a grace period was in dispute because the store manager was unavailable for the hearing. Having the grace period noted in the policy, as well as specifically how points were assigned would have supported employer testimony.

 

Attendance cases can be very difficult to win, but tardiness cases are much easier.  While the employer did “technically” follow progressive discipline, it is important for the warnings to be timely and consistently given, rather than seemingly random.  This is true in all discharge cases.

If you have questions regarding this or any other unemployment issue.  Please contact CCC at (800) 207-6926 or contact@corporatecostcontrol.com.

 

Montana domestic violence victims now eligible for full UI benefits

 


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