Opinion
Civil Action Number 05A-10-009-JOH.
Submitted: February 16, 2006.
Decided: March 17, 2006.
Appeal from a Decision of the Unemployment Insurance Appeal Board — REVERSED and REMANDED.
John Bailey, Wilmington, Delaware, appellant.
David H. Williams, Esquire, of Morris, James, Hitchens Williams, Wilmington, Delaware, attorney for employer-below, appellee.
MEMORANDUM OPINION
John Bailey appeals the Unemployment Insurance Appeals Board's decision denying his claim for benefits. He was terminated for sleeping on the job and, apparently, because he had been warned previously about job performance deficiencies and sleeping.
The Court declines to review the merits of the appeal and/or the Board's decision. The reason is that there is an important procedural issue on which the Board did not rule. Through no fault of its own, it appears it was not presented with an opportunity to rule on it. The Board must now get that opportunity before this matter can proceed further, if it is does.
The process for obtaining unemployment compensation begins, obviously, with the former employee making a claim. By statute, the Department of Labor undertakes the next step:
Whenever an individual files a claim for benefits, the Department shall forward to the employer by whom the claimant was most recently employed, hereafter "last employer", and to each base period employer relating the individual's claim a separation notice. The last and base period employer(s) shall return such notices completed, indicating the reason for the claimant's separation from work with them and the individual claimant's last date of work with them, within 7 days of the date contained on the separation notice. Any last or base period employer who fails to complete a separation notice within the period prescribed above shall be barred from claiming subsequently that the individual claimant to whom such separation notice applied shall be disqualified under any provisions of § 3314 of this title and shall be barred from seeking relief from benefit wage charges to its experience merit rating account under §§ 3349-3356 of this title unless the Department for reasons found to constitute good cause, shall release such employer from the default. If the last or base period employer fails to timely submit a completed separation notice, the Department shall not be required to issued a determination on said claim or to make an examination of said claim or be required to follow the remaining procedures as set forth in §§ 3318-3320 of this title.
19 Del.C. § 3317(b) (emphasis added).
The Department sent the notice to the employer, Printpack. The record by the Board for this appeal shows, and Printpack concedes, that its response was not returned to the Department within the requisite seven days.
By statute, therefore, Printpack would be barred from claiming Bailey was disqualified from benefits. But the statute does provide for relief from that bar. If the Department finds good cause, it can release the employer, here Printpack, from that bar (default). The record now before the Court demonstrates that the issue of lateness of Printpack's response never came up before the Claims Deputy, the Appeals Referee or the Board. The transcript of the testimony offered at various stages and the three decisions below clearly show that.
Bailey argues that he was never aware of Printpack's belated response to his initial claim until he saw the record now before this Court. Printpack does not dispute that. It argues, instead, that Bailey knew why he was fired and knew through all the administrative proceedings why he was fired. The record on appeal confirms that.
Without a determination that Printpack had good cause for its belated response to Bailey's initial claim, however, it may be barred from disputing his qualification for benefits.
See Hoster v. Delaware Park, 1999 WL 743318 (Del.Super.).
Printpack argues this Court should not entertain Bailey's argument because he failed to raise it below. That proposition may or may not apply to this case. But the record would tend to indicate that he could not have raised it before the administrative tribunals because he was unaware there was such an issue until the record below was sent to this Court.
There are, therefore, several issues which the Board needs to consider. Is there good faith to excuse Printpack from its belated response which was not filed within seven days? It is not an issue of prejudice or lack thereof to Bailey since he contested the single reason for termination given in the response, that he slept six and a half hours on April 7, 2005. The statute does not create a weighing process — prejudice to the claimant versus actions of the employer — only consideration of the employer's reasons for being tardy.
The Court notes that the record and Printpack's briefing demonstrate that there is no dispute that its response was not returned to the Department within seven days.
The Court has accepted, as it must, and as the record of hearings and decisions would tend to confirm, Bailey's representation to the Court that, prior to the appeal, he was unaware of the tardiness issue. While not a likely matter in dispute, it is not out of the question that his representation to the Court may play a role in the remand hearing. That is, if he were aware of the issue before the appeal to this Court but chose not to raise it until the appeal, there could be another issue. The Board may delve into that, too.
Nothing in this opinion is to be taken or implied as any view by the Court on the substance of the issues involved in the Board's denial and Bailey's appeal. This is a remand to have the requisite Board determination on this good cause issue because of its important role in allowing or disallowing Printpack to contest Bailey's qualification for benefits.
Conclusion
For the reasons stated herein, this matter is REVERSED and REMANDED for the Board to make the findings as set out in this opinion.