Opinion
C.A. No. 02A-04-002
Date Submitted: August 19, 2002
Date Decided: October 23, 2002
John F. Brady, Esq. John F. Brady, P.A.
Albert J. Gennett, Jr.
Dear Mr. Gennett and Counsel:
This is my decision on Brighton Hotels, L.L.C.'s ("Employer") appeal of the Unemployment Insurance Appeal Board ("Board") decision granting unemployment benefits to Albert. J. Gennett, Jr. ("Employee"). The Board's decision is affirmed for the reasons set forth herein.
STATEMENT OF FACTS
On March 1, 2001, Employee commenced working as a front desk clerk for Employer. Employer terminated Employee on October 28, 2001 for unexcused absences and insubordination. During the course of his employment, Employee did not work his scheduled shifts on June 30, July 27, September 22, October 19, October 26 and October 27. Employee did not give a reason for his absences, only stating that it was personal. Employer's attendance policy requires employees to notify their immediate supervisor personally if they cannot work a scheduled shift. The employee must also inform the supervisor of the reason for their absence. The attendance policy states that unexcused absences are grounds for immediate termination. The attendance policy further states that failure to report to work without notifying the supervisor may constitute a voluntary resignation.
On October 19, Employee telephoned his supervisor Lisa Murdock ("Supervisor") to inform her that he would not be coming in that day for his scheduled shift. When Supervisor questioned Employee about the reason for his absence, Employee responded very rudely and sternly that it was personal. Supervisor informed Employee that they needed to talk. On October 26, Employee did not talk to Supervisor, but left a message with another employee that he would not be reporting for his shift that day. When Supervisor attempted to contact Employee by phone, someone at Employee's number hung up the phone on Supervisor. On October 27, Employee contacted the general manager John Kleitz ("Manager"). Manager informed Employee that he could not report to work until after he had a meeting with Manager and Supervisor scheduled for the next day.
Following the meeting, Supervisor made the decision to terminate Employee based upon the unexcused absences. Thereafter, Employee filed for unemployment benefits. On December 6, 2001, the Claims Deputy ("Deputy") denied benefits finding that Employee was terminated for just cause and was therefore disqualified from receiving benefits. Employee appealed this decision to the Appeals Referee ("Referee"). On January 29, 2002, the Referee reversed the decision of the Deputy and awarded benefits finding that Employee was terminated without just cause. Employer appealed this decision.
At a hearing on March 27, 2002, the Board adopted the findings of fact of the Referee and heard additional testimony. Employee argued that Employer's counsel may be disqualified from serving as attorney, as a potential fact witness in the case. After questioning Employer's counsel, the Board decided to proceed with the hearing. The Board affirmed the Referee's decision on April 3, 2002, finding that Employee was discharged from employment without just cause. The Board reasoned that Employer had failed to meet its burden of showing that notice was given to Employee that his absenteeism threatened his employment. Employer appeals this decision.
ISSUES PRESENTED
The first issue is whether the Board's finding that Employer failed to show that Employee was terminated for just cause is supported by substantial evidence. The second issue raised by Employer is whether the Board's decision was supported by substantial evidence of record. Specifically, Employer challenges the Board's finding that Employee was not given notice that his absences or other misconduct threatened his continued employment. Employer also asserts that the Board erred in failing to consider the alleged act of insubordination in reaching its determination. In his answering brief, Employee argues that Employer's counsel was disqualified from serving as attorney since he was also a fact witness in the case.
Although the court addresses this issue in the interests of justice, this argument is barred from consideration due to the failure to timely raise the issue by filing a cross-appeal.
DISCUSSION A. Standard of Review
The Supreme Court and this Court repeatedly have emphasized the limited appellate review of the factual findings of an administrative agency. The function of the reviewing Court is to determine whether the agency's decision is supported by substantial evidence, Johnson v. Chrysler Corp., 312 A.2d 64, 66-67 (Del. 1965); General Motors v. Freeman, 164 A.2d 686, 688 (Del. 1960), and to review questions of law de novo, In re Beattie, 180 A.2d 741, 744 (Del.Super. 1962). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battisa v. Chrysler Corp., 517 A.2d 295, 297 (Del.Super.), app. dism., 515 A.2d 397 (Del. 1986). The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. Johnson v. Chrysler Corp., 312 A.2d at 66. It merely determines if the evidence is legally adequate to support the agency's factual findings. 19 Del. C. § 3323(a). B. Termination for Just Cause
The Board's finding that Employer failed to meet its burden of proof in establishing termination for just cause is supported by substantial evidence and is free from legal error. The Unemployment Compensation Act serves to protect the unemployed from financial hardship and is liberally construed. Boughton v. Div. Of Unemployment Ins. of the Dep't of Labor, 300 A.2d 25, 26 (Del.Super. 1972). An individual is ineligible to receive unemployment benefits if he or she were terminated for just cause. 19 Del. C. § 3315(2). Just cause is defined as a wilful or wanton act or pattern of conduct in violation of the employer's interest, the employee's duties or the employee's expected standard of conduct. Avon Products, Inc. v. Wilson, 513 A.2d 1315, 1317 (Del. 1986). Wilful or wanton conduct exists where one is "conscious of his conduct or recklessly indifferent of its consequences." Coleman v. Dep't of Labor, 288 A.2d 285, 288 (Del.Super. 1972). The employer has the burden of proving just cause for termination by a preponderance of the evidence. Diamond State Port Auth. v. Morrow, Del. Super., C.A. No. 00A-09-003, Del Pesco, J. (June 13, 2001) (Mem. Op.).
1. Absenteeism
A poor attendance record may provide just cause for dismissal. Ortiz v. Unemployment Ins. Appeal Bd., 317 A.2d 100, 101 (Del. 1974). An unexplained or unexcused absence is contrary to the interests of an employer and may be a basis for discipline. Delgado v. Unemployment Ins. Appeal Bd., 295 A.2d 585, 586 (Del.Super. 1972). However, an employer may be required to warn an employee that their conduct is no longer acceptable where such conduct has been consistently tolerated in the past. Moeller v. Wilmington Savings Fund Society, 723 A.2d 1177, 1179 (Del. 1999).
In this case, Employer testified that Employee was terminated for unexcused absences and insubordination to his immediate supervisor. It is undisputed that Employee violated the procedures in the Employer's written attendance policy by failing to notify his supervisor directly and failing to provide a justifiable reason for his absence.
There is substantial evidence in the record showing that such conduct was tolerated in the past by Employer. Employer testified that Employee had a number of unexcused absences over a five-month period and admitted that it did not discharge Employee sooner because it needed the extra help during the summer season. As such, Employer was required to notify Employee prior to discharge that such conduct would no longer be tolerated. See Finestrauss v. Phillips, Del. Super., C.A. No. 01A-05-002, Ableman, J. (March 8, 2002) (ORDER) (finding that employer was required to provide unequivocal notice that employee's conduct threatened her continued employment).
However, the record does not clearly show that Employee was given notice that his unexcused absences threatened his employment. Employer asserts that notice was provided when Supervisor informed Employee that they needed to talk on October 19. However, the Board determined that the conversation on October 19 between Employee and Supervisor was inadequate to provide the requisite notice. Based on the evidence in the record, the Board logically concluded that informing Employee that they needed to talk did not put Employee on notice that his absences threatened his continued employment. This finding is supported by substantial evidence in the record and will not be disturbed on appeal.
2. Insubordination
Insubordination constitutes just cause for dismissal where the conduct involves "a wilful refusal to follow the reasonable directions or instructions of the employer." Hanna v. Fox Pools of Dover, Del. Super., C.A. No. 81A-JL-7, O'Hara, J. (March 10, 1982) (Mem. Op.) The focus is whether the conduct was wilful or wanton. Hundley v. Riverside Hosp., Del. Super., C.A. No. 92A-11-19, Cooch, J. (Sept. 27, 1993) (Mem. Op.). A single instance of insubordination may provide just cause for termination. Foraker v. Diamond State Recycling, Del. Super., C.A. No. 01A-01-010, Slights, J. (Aug. 17, 2001) (ORDER). However, an employer may have a duty to warn that the conduct is unacceptable where the conduct has previously been tolerated. Miles v. Delaware Express Shuttle, Inc., Del. Super., C.A. No. 94A-05-16, Cooch, J. (March 1, 1995) (Mem. Op.).
Neither the Board nor the Referee examined the termination for insubordination. An act of insubordination occurred when Employee failed to give a reason for his absence as required by the rules in the handbook. However, Employer testified that in the past, Employee had not give a valid reason for his absences. Despite these prior acts of insubordination, Employer acknowledges that Employee was not discharged. Consequently, since Employer did not put Employee on notice that they would no longer tolerate the refusal to give a reason for absences, they could not discharge Employee for such conduct. Miles v. Delaware Express Shuttle, Inc., Del. Super., C.A. No. 94A-05-16, Cooch, J. (March 1, 1995) (Mem. Op.). Although the Board failed to address the insubordination, a remand is not needed since the undisputed facts establish that no warning was given after such conduct was tolerated in the past. C. Disqualification of Counsel
Since this Court has concluded that the decision of the Board should be affirmed, Employee's argument regarding the disqualification of counsel need not be addressed. Moreover, this issue has been waived since it was not raised on appeal in a timely manner. However, it is clear that in any event, counsel was not disqualified under the Rules of Professional Conduct since he was not a necessary witness. Rule 3.7 of the Rules of Professional Conduct prohibit a lawyer from serving as counsel in a case where they are a necessary witness. Del. Prof. Cond. R. 3.7. One of the rationales of this rule is "to prevent confusion by the trier of fact with regard to the separate roles of an advocate and a witness." Estate of Waters, 647 A.2d 1091, 1097 (Del. 1994). As the comments to the rule explain, the opposing party properly objects to counsel where the dual roles may prejudice that party's litigation rights. Del. Prof. Cond. R. 3.7 cmt. The factors to be considered in determining whether a party will likely suffer prejudice include the nature of the case, the importance and substance of the lawyer's testimony, and the likelihood of a conflict between the lawyer's testimony and the testimony of other witnesses. Id. The court must also consider the effect of disqualification on the lawyer's client and whether the parties could reasonably foresee that the lawyer will testify as a witness. Id.
Rule 3.7 provides: "A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client." Del. Prof.Cond.R. 3.7.
However, disqualification is not required where one of the three exceptions in the rule applies. Cannon Airways, Inc. v. Franklin Holdings Corp., 669 F. Supp. 96, 99 (D.Del. 1987). Moreover, the "likely to be a necessary witness" standard "requires the opposing party to bear a higher burden on a disqualification motion, permits the court to delay ruling until it can determine whether another witness can testify, and precludes disqualification if the lawyer's testimony would merely be cumulative." Id. at 100.
Here, the record shows that counsel was also a part-time employee of Employer. However, counsel did not serve in any managerial capacity and could not provide testimony regarding any of the contested issues in the case. Moreover, counsel did not testify in the case and any potential testimony would have been cumulative. Accordingly, counsel was not disqualified from serving as attorney for Employer.
CONCLUSION
Based upon the foregoing, the decision of the Board is affirmed.
IT IS SO ORDERED.