Thursday, October 15, 2015

Unemployment insurance benefits denied because claimant’s employment was terminated due to misconduct


Unemployment insurance benefits denied because claimant’s employment was terminated due to misconduct
Matter of Malcolm (Honeoye Falls-Lima Cent. Sch. Dist.--Commissioner of Labor), 2015 NY Slip Op 07306, Appellate Division, Third Department

The Unemployment Insurance Appeal Board ruled, among other things, that Bernice Malcolm was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Malcolm, a special education teacher, challenged the Board’s finding that she lost her employment due to disqualifying misconduct, stemming from conduct and circumstances that led to the preferment of charges by the employer against her.

The Appellate Division said that it is well settled that a "[v]iolation of an employer's known policies, as well as unauthorized absence from work, have been held to constitute disqualifying misconduct," citing Matter of Maldonado, 118 AD3d 1246.

Here, said the court, the record establishes that, although the employer informed Malcolm that approval for an unpaid leave of absence was required before she commenced an administrative internship at another school, Malcolm failed to request any leave of absence and, instead, used paid sick leave for part of that period. In addition, the record indicated that Malcolm did not submit to a scheduled medical examination required by her employer in order to validate her absence from work or comply with her employer's directive to return to work. The decision also noted that testimony by her employer also established that Malcolm abused the employer's paid leave and bereavement polices on various other occasions.

Under the circumstances presented herein, the Appellate Division found that the Board's finding of misconduct is supported by substantial evidence in the record. As to Malcolm assertion that her absences were justified and not improper, the court said that “this claim presented a credibility issue for the Board to resolve.”

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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