Opinion
Record No. 1192-94-4
Decided: February 14, 1995
FROM THE CIRCUIT COURT OF CULPEPER COUNTY, Lloyd C. Sullenberger, Judge
Jamie B. Aliperti (Rappahannock Legal Services, Inc., on brief), for appellant.
Paul S. Stahl, Assistant Attorney General (James S. Gilmore, III, Attorney General; Lisa J. Rowley, Assistant Attorney General, on brief), for appellee Virginia Employment Commission.
No brief or argument for appellee Waterloo Associates, t/a Napoleon's.
Present: Judges Willis, Bray and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The judgment of the trial court is affirmed.
"On review, [this Court] must consider the evidence in the light most favorable to the finding by the Commission." Virginia Employment Comm'n v. Peninsula Emergency Physicians, Inc., 4 Va. App. 621, 626, 359 S.E.2d 552, 554 (1987). "[T]he findings of the Commission as to the facts, if supported by the evidence . . . shall be conclusive and the jurisdiction of the Court shall be confined to questions of law." Va. Code Ann. Sec. 60.2-625(A) (Michie 1992); See Bell Atlantic Network Services v. Virginia Employment Comm'n, et al., 16 Va. App. 741, 745, 433 S.E.2d 30, 32 (1993). However, "analyzing an employee's behavior within the disqualification provisions of [Sec. 60.2-618(2)] is a mixed question of law and fact reviewable by this Court on appeal." Virginia Employment Comm'n v. Sutphin, 8 Va. App. 325, 327, 380 S.E.2d 667, 668 (1989) (quoting Israel v. Virginia Employment Comm'n, 7 Va. App. 169, 172, 372 S.E.2d 207, 209 (1988)).
In denying Davis unemployment benefits, the commission found that he had not notified his employer adequately of his absence and thereby "disregarded the duties and obligations owed to his employer." The commission further found that by not attempting to obtain a ride from a supervisor who lived in a neighboring town Davis had failed to mitigate his disregard.
Evidence supports the commission's findings that Davis did not call his employer from January 1 to January 11 and that his efforts to obtain transportation to work were inadequate. The assessment of his reasons for not calling and of his efforts to keep his employer informed and to get to work lay within the sound discretion of the commission. Its determinations, being supported by the record, are conclusive and binding on appeal.
Davis next contends that the evidence did not support the finding that he was discharged for reasons constituting misconduct in connection with his work under Code Sec. 60.2-618(2).
[A]n employee is guilty of 'misconduct connected with his work' when he deliberately violates a company rule reasonably designed to protect the legitimate business interests of his employer, or when his acts or omissions are of such a nature or so recurrent as to manifest a willful disregard of those interests and the duties and obligations he owes his employer. Absent circumstances in mitigation of such conduct, the employee is 'disqualified for benefits,' and the burden of proving mitigating circumstances rests upon the employee.
Branch v. Virginia Employment Comm'n, 219 Va. 609, 611, 249 S.E.2d 180, 182 (1978).
Davis argues that his employer, Napoleon's, did not meet its burden of proving misconduct. Brady v. Human Resources Institute, 231 Va. 28, 31-32, 340 S.E.2d 797, 798-99 (1986). Citing Hancock v. Mr. Casuals, Inc., No. 1, Commission Decision No. 6355-C (July 3, 1974), he argues that his absenteeism, a result of the theft of his car, does not amount to misconduct. In Hancock, the commission held:
Mere absenteeism, attributable to illness or injury, when the employer has been notified . . . will not amount to misconduct. The sine qua non of wanton disrespect of the employer's interest or malevolent intent is absent in such cases.
Davis analogizes the illness or injury in Hancock to the theft of his car. Noting that they are all situations beyond the control of the employee, he argues that his actions were not deliberate, but beyond his control. He also argues that his decision not to contact his employer after January 1 was not in disregard of his employee's obligations, but because he had been informed that he was no longer on the work schedule. He assumed this was an alternative arrangement until he could obtain transportation.
Napoleon's had a company policy, written in its employee handbook, requiring employees to be aware of posted work schedules. The policy provided that failure to appear for work could cause an employee to be discharged. It also required an employee to notify the employer when the employee was unable to attend work. Professing that he was not informed of this policy, Davis argues that he should not be held accountable for a company policy of which he was not aware. He argues that Napoleon's never proved that he received a copy of the employee handbook. Phil Harway, President of Waterloo Associates, which owns Napoleon's, testified only that it was company policy for every employee to receive a handbook.
Davis's testimony in regards to the employee handbook was contradictory. He first testified that he received it. Later, he testified that it was shown to him, but he did not read it. Regardless of whether he actually read it, it was his duty to read it, and the commission did not err in holding him responsible for knowledge of the policy.
Davis next argues that even if he is held accountable under the policy, Napoleon's has failed to prove that his failure to abide by the policy was deliberate and willful. We need not determine whether Davis deliberately violated Napoleon's policy. His failure to contact Napoleon's for ten days is sufficient to show that he "manifest[ed] a willful disregard of his employer's interests and the duties and obligations he owed his employer." Branch, 219 Va. at 612, 249 S.E.2d at 182. The commission has held that an employer has a right to expect regular attendance from an employee. An employer also has a right to adequate notification when the employee is unable to work and to know when he will return to work. Absenteeism without notice is misconduct connected with work. Rebibo v. Saidman Imperial Cleaners, Commission Decision No. 15737-C (January 12, 1982).
Davis proved no circumstances in mitigation of his absenteeism. Because Napoleon's proved misconduct and Davis failed to prove mitigating circumstances, the commission did not err in denying him unemployment benefits.
We affirm the judgment of the trial court.
Affirmed.