Monday, June 7, 2010

UNEMPLOYMENT INSURANCE - MISCONDUCT

On the other hand, researching the recent decisions of the Appellate Division, 3rd Department (which is where all appeals from the Appeals Board goes to), it appears that the Court is quite strict with the issue of repeated lateness - here's a sample case and note that it was decided almost a year and a half after the Appeals Board denied the claim:

IN THE MATTER OF THE CLAIM OF DIANE ARMELLINO, Appellant v.

COMMISSIONER OF LABOR, Respondent.

507342.

Appellate Division of the Supreme Court of New York, Third Department.

Calendar Date: November 4, 2009.

Decided and Entered: January 14, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 21, 2008, which ruled that claimant was disqualified from receiving unemployment insurance benefits because heremployment was terminated due to misconduct.

Diane Armellino, New York City, for appellant.

Andrew M. Cuomo, Attorney General, New York City (Linda D. Joseph of counsel), for respondent.

Before: Mercure, J.P., Spain, Lahtinen, Malone Jr. and Garry, JJ.

MEMORANDUM AND ORDER

Claimant was employed as an administrative assistant at a fence and ironworks installation company starting in July 2006. On July 25, 2007, despite prior warnings concerning her tardiness and absenteeism, claimant failed to report to work. As a result,claimant's employment was terminated. The Unemployment Insurance Appeal Board ultimately disqualified her from receiving unemployment insurance benefits on the ground that her continued absences constituted misconduct. Claimant now appeals.

Substantial evidence supports the Board's decision finding that claimant was discharged from her employment due to disqualifying misconduct. "It is well settled that continued absenteeism and tardiness despite previous warnings can constitute
disqualifying misconduct" (Matter of Schnabel [Commissioner of Labor], 307 AD2d 572, 572 [2003] [citations omitted]). Here, the employer's representatives testified that claimant had been warned several times prior to July 25, 2007 about her poor attendance and punctuality. Claimant, while not contesting that she had been absent
from work numerous times, gave conflicting testimony that she had never been warned of the consequences of her continued absences,which created a credibility issue for the Board to resolve (see Matter of Alexander [City Univ. of N.Y. — Commissioner of
Labor], 7 AD3d 860, 861 [2004]).

Mercure, J.P., Spain, Lahtinen, Malone Jr. and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

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