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Discharge - Sections 8-1002, 8-1002.1, 8-1003 - Maryland Unemployment Decisions Digest

 

Introduction

The provisions dealing with discharge are located in Sections 8-1002 and 8-1003 of the Labor and Employment Article of the Maryland Annotated Code.

The intent of unemployment benefits is to protect workers and their families from involuntary unemployment. Fino v. Maryland Employment Security Board, 218 Md. 504, 147 A.2d 738 (1959). If a claimant is discharged for reasons which do not constitute misconduct, no penalty will be applied against the claimant's unemployment insurance benefits. However, if a claimant is found to be discharged for simple misconduct, gross misconduct or aggravated misconduct, benefits will be delayed or denied.

If a claimant is discharged for simple misconduct within the meaning of Section 8-1003, a penalty consisting of a delay of payments for five to ten weeks is imposed. The duration of the penalty period is discretionary with the fact finder. Once the penalty period expires, the claimant may still be eligible for the full amount of unemployment insurance benefits available under the law.

If the claimant is discharged for gross misconduct under Section 8-1002, the claimant will be disqualified until he becomes reemployed, earns at least 20 times his weekly benefit amount in covered employment and thereafter becomes unemployed through no fault of his own.

In 1992, the legislature enacted Section 8-1002.1 which defined aggravated misconduct. The law became effective on January 1, 1993. Under this section, as enacted at that time, if a claimant was discharged for aggravated misconduct, the duration of the disqualification was the same as it is under Section 8-1002. However, in addition to this, the claimant's wages earned from the employer against whom he committed the aggravated misconduct could not be used to establish the claimant's weekly benefit amount in any benefit year. This was the harshest penalty for misconduct since the wage deletion could effectively bar a claimant from receiving benefits until he was able to build up a wage base from subsequent employment.

In 1995, the legislature repealed Section 8-1002.1 and reenacted it with amendments. Under the new Section 8-1002.1, if a claimant is discharged for aggravated misconduct, he will be disqualified until he becomes reemployed, earns at least 30 times his weekly benefit amount in covered employment and thereafter becomes unemployed through no fault of his own. However, the claimant's wages earned from the employer against whom he committed aggravated misconduct will no longer be deleted from the claimant's wages used to establish his weekly benefit amount. The amendment to Section 8-1002.1 applies to all new claims filed on or after October 1, 1995.

Effective March 1, 2011, the penalties for misconduct and gross misconduct were increased. The penalty for misconduct was raised from 5-10 to 10-15 weeks. The penalty for gross misconduct was raised from having to earn 20 times the claimant's weekly benefit amount to 25 times. See, Maryland Code Annotated., Labor and Employment Article Section 8-1002.

 

Discharge - Sections 8-1002, 8-1002.1, 8-1003

I. What is a Discharge
Before a penalty can be applied under Sections 8-1002, 8-1002.1 or 8-1003, it must be shown that the employer discharged or suspended the claimant. In some cases, it is clear that the employer discharged the claimant, either verbally or in writing. However, in other cases, the actions and words of the claimant and employer are unclear and must be interpreted to determine whether a discharge occurred.

For example, an employee's resignation in lieu of discharge is treated as a discharge where the employee has no choice but to resign or be discharged. However, where an employee resigns in order to avoid facing charges that might result in a discharge, the resignation is treated as a voluntary quit under Section 8-1001. A claimant's failure to file a grievance or appeal a discharge does not convert the discharge into a voluntary quit. A claimant's acceleration of the date of departure after being discharged does not change the discharge into a voluntary quit. Similarly, an employer's acceleration of the date of a claimant's resignation, (unless due to intervening acts of misconduct by the claimant), does not change the claimant's resignation into a discharge.

The loss of an employee's occupational license or the failure to meet other occupational requirements can be a reason for separation from employment, but whether the separation is a discharge or a "constructive voluntary quit" depends upon the circumstances. Generally, when the claimant voluntarily or negligently allows himself to become legally unable to do his job, leaving the employer no choice but to discharge him, the separation is considered a constructive voluntary quit. If the employer has a choice about whether or not to continue the claimant's employment and chooses to separate the claimant from employment, the separation is considered a discharge. But see, footnote number 1, page 101.

Where the employer offers employees monetary incentives to accept early retirement, but the employees would be laid off whether or not they accepted the incentive, the employees are considered to be discharged.

If the employer separates an employee from his job during or following an approved leave of absence, this is considered a discharge.

Finally, when a claimant's assignment for a temporary agency ends, the claimant is considered to be discharged. The claimant's decision not to reapply for more assignments does not create a voluntary quit.

 

A. What Constitutes a Discharge?

The claimant was discharged for a series of absences and incidents of tardiness, not all of which were adequately explained. After filing for unemployment insurance benefits, the claimant was reinstated through the company grievance procedure. The fact that the claimant was later reinstated does not change the fact that the claimant was originally discharged for absenteeism. The claimant was disqualified for misconduct under Section 8-1003. Campbell v. Montgomery Ward, 213-BH-85.

Where, under the terms of the sale of the business, the claimant had no choice but to leave if he failed to meet certain conditions to purchase the business, and the employer wanted him to leave, the claimant's departure is a discharge, but not for misconduct. Gasch v. AFS, Inc., 3-BR-87.
The claimant, who had a conflict with her supervisor, returned from her vacation and saw the locks changed, her desk cleared, her commissions not deposited, and heard from a coworker that she would be fired. The claimant correctly concluded that she had been discharged. Adams v. Fairfax Mortgage Corporation, 119-BH-88.

The claimant was discharged after a telephone conversation during which she stated her anger at her employer, and the employer stated to her, "If that's the way you feel, then you might as well not come in anymore." The claimant's reply of "Fine," does not make it a quit. Dei Svaldi v. Martin Taubenfeld, D.D.S., P.A., 1074-BR-88.

A suspension from work for an indefinite duration is a discharge where the suspension can be ended only upon the payment of money and where it is also accompanied by the seizure of the tools by which the employee normally earns his salary. The claimant was discharged as soon as a suspension under these circumstances was imposed on him. Gladding v. Montgomery Ward and Company, 1120-BR-92.

B. Discharge or Quit?

 

1. In General

The claimant's supervisor told her she would be terminated the following day. The claimant then offered her resignation in angry response to this announcement. The employer refused to allow her to revoke her resignation. The claimant was discharged, but not for any misconduct or gross misconduct. Hardy v. Blue Cross and Blue Shield, 490-BR-87.

The claimant, who submitted a letter of resignation after learning of her termination, was discharged. The claimant's earlier verbal communication to coworkers of an intention to resign, where no such communication was made to the employer, is not a voluntary quit. Stewart v. Access Enterprises, 230-BR-88.

The claimant was employed pursuant to a written, five-year contract. As the contract came to an end, neither the claimant nor the employer discussed extending the contract. The claimant correctly believed that the employer did not want him in the position anymore, although the employer did not communicate this to the claimant. If the claimant had asked to continue his job, his request would have been denied. Therefore, the claimant did not quit. He was discharged, but not for misconduct or gross misconduct connected with the work. Tenney v. Andrews Food Company, Inc., 153-BR-89.

Where the claimant was hired under the Military Spouse Preferential Priority Placement Program and then became legally barred from continuing that job due to the transfer of her spouse, the claimant did not voluntarily quit her job. She was discharged for reasons that do not constitute misconduct within the meaning of Section 8-1003. Holmes v. Department of the Army, 1175-BR-94.

Where the claimant was told that a new person was replacing her in her supervisory position and that the claimant would "have other things to do", she was discharged from her supervisory position. The claimant lacked the requisite "intent" to have voluntarily quit her supervisory position. Accordingly, the claimant was discharged, but not for gross misconduct or misconduct connected with the work. NOTE: The employer failed to participate in the appeal process. Mettle v. Pikesville Nursing-Conva House of Baltimore County, Inc., 853-BR-01.

2. Resignation in Lieu of Discharge or to Avoid Facing Charges
The claimant resigned in lieu of termination for excessive absenteeism in the face of warnings. A claimant who resigns in lieu of discharge does not show the requisite intent to quit under Allen v. CORE Target City Youth Program, 275 Md. 69, 338 A.2d 237 (1975). In this case, the claimant was discharged for gross misconduct. Tressler v. Anchor Motor Freight, 105-BR-83.

A resignation submitted in response to charges which might result in discharge is a voluntary quit. However, a claimant who is given the choice of resigning or being discharged and who subsequently resigns, will be considered as having been discharged for the purposes of the Maryland Unemployment Insurance Law. Hickman v. Crown Central Petroleum Corporation, 873-BR-88.

3. Failure to File Grievance or Appeal
Management personnel conveyed to the claimant that she was not to report for work anymore, due to her difficulties in learning the work. This management decision constitutes a discharge. A discharged employee is under no obligation to appeal to a higher level of management. Cottman v. Hill and Sons Management Company, Inc., 725-BR-92.

During the mandatory state police background investigation, the claimant worked as a security guard on a probationary status. The claimant was subsequently disapproved by the state police. The claimant had the right to appeal the disapproval, but did not do so. He was subsequently discharged. The claimant's failure to appeal the disapproval is not a quit. The police permit was denied, and the claimant was not allowed to work. This is a discharge. Pitts v. BPS Guard Services, Inc., 1858-BR-92.

4. Claimant Accelerates Time of Discharge
The claimant's acceleration of the date of departure from employment after being informed of a planned layoff due to the sale of the business does not constitute a voluntary quit. Helsel v. Johnson Shell, Inc., 85-BR-84.

The employer informed the claimant that his job would be coming to an end because the gas station where he worked was to be sold. The new owners did not approach the claimant about continuing to work. The claimant then had to give up his apartment. He was required to give his landlord 30 days' notice, which he did. Subsequently, the employer asked the claimant to work an extra two weeks, but the claimant declined because he had to be out of his apartment before then. The claimant was discharged, but not for any misconduct or gross misconduct. The claimant's inability to work the last two weeks was caused directly by the employer's action informing him that his job was coming to an end. Terrell v. Settle, 849-BR-89.

5. Employer Accelerates Time of Quit
After incurring a long history of unexcused absences and tardiness, the claimant submitted a resignation to be effective in two weeks. During the notice period, the claimant was away from the work station and became disruptive. The claimant was discharged prior to the effective date of the resignation. The termination was not merely an acceleration of the leaving, but was for intervening violations of employment rules constituting gross misconduct. Salisbury v. Levinson and Klein, 395-BH-84.

The claimant submitted a resignation giving two weeks' notice but was discharged prior to the expiration of the notice period for an act which did not constitute misconduct. Unlike the Salisbury case, supra, the claimant was not discharged for an independent reason. The discharge was primarily an acceleration of the resignation date. Therefore, the claimant will be considered to have voluntarily quit under Section 8-1001 from the effective date of the resignation. However, the claimant is not disqualified from benefits during the notice period. Nazarini v. Chesapeake Bay Seafood House, 294-BR-86.

6. Voluntary Quit or Discharge? See, footnote 1, page 101

 

a. Loss of Ability to Drive
The claimant in this case could not continue employment because he failed the required test to obtain his federal commercial driver's license. There was no misconduct involved in the claimant failing the test. The claimant's efforts to prepare himself for the test were reasonable. He failed the test due to simple inability. The claimant was discharged, but not for any misconduct. Battle v. Mass Transit Administration, 41-BR-93.

The claimant, a diabetic, was discharged due to a mandatory requirement that truck drivers are not legally allowed to drive if they take insulin. The claimant's medical condition was not the result of any action on the claimant's part, but due to a disease which the claimant could not control. The claimant did not voluntarily quit, nor did he have any of the necessary elements to show that he "constructively" quit. Therefore, the hearing examiner's finding that the claimant voluntarily quit with valid circumstances is an error of law. The claimant was discharged, but not for any misconduct. Styron v. Baltimore International Warehouse Company, Inc., 1738-BR-95.

b. Failure to Meet Occupational Requirements

 

(1) Security Clearance
The claimant was required to have a top secret clearance in order to keep his job. The claimant had a duty to his employer to conduct himself in such a way as to maintain his security clearance. To the extent that the claimant lost his clearance due to circumstances beyond his control, the loss of the clearance cannot be considered misconduct. However, culpable conduct leading to the loss of his clearance was misconduct. Davis v. National Security Agency, 853-BR-92.

(2) Required Courses/Certification
The claimant schoolteacher was separated from her job after failing to obtain the six college credits necessary to maintain her certification. Although the claimant took courses in good faith, she failed to accrue the required credits due to a billing dispute. No penalty under either Section 8-1001 or Section 8-1003 is imposed, since the claimant made a good faith effort to comply with the requirements. Abraham v. Prince George's County Public Schools, 487-BH-85.

(3) Work Visa
A claimant who was less than diligent in renewing his work visa prior to its expiration date despite reminders from his employer was found to have been discharged for misconduct. Senatus v. Perdue Farms, Inc., 01156-BR-99 (1999).

 

7. Retirement Incentives
The employer planned to lay off a definite number of employees and eliminate their jobs. Rather than make an arbitrary decision on its own, the employer offered employees monetary inducements to encourage them to voluntarily accept a layoff. However, these employees really did not have a choice. In all three cases, their jobs were eliminated. Although they were given an opportunity to find other jobs in the company, the reality was that there were very few available, at least within the local area in which they lived. Furthermore, the longer an employee stayed on and thought about the inducement package, the less money he would receive. Each employee knew that he would eventually be laid off, with or without the inducement package. This is a discharge. Bishop, et al. v. Digital Equipment Corporation, 270-BH-91.

The employer was attempting to downsize the work force. It offered a special pension package to everyone in the claimant's department. The claimant also received a further cash incentive to retire, consisting of a lump sum payment equal to six months' pay. The claimant, fearing an additional layoff and a subsequent withdrawal of the incentive package, decided to accept the package and take early retirement. The claimant's fears of imminent layoff and withdrawal of the incentive package were justified. There was no evidence of any misconduct on the claimant's part. The claimant was discharged, but not for any misconduct under Section 8-1002 or 8-1003. Lewis v. AT&T Communications, Inc., 426-BR-91.

 

C. Leave of Absence
A claimant who is replaced while out on a medical leave of absence is discharged, but not for misconduct or gross misconduct. Vathes v. Wareheim Air Brakes, Inc., 366-SE-87.

Upon returning from a leave of absence requested by the employer, the claimant was handed a letter of resignation and asked to sign it. The claimant signed the letter because he knew that if he did not sign it, he would be fired. The employer proved no misconduct of any kind on the claimant's part. The claimant had no intent to resign. The claimant was discharged, but not for any misconduct or gross misconduct. Cox v. B. Green and Company, Inc., 957-BH-89.

Being placed on an involuntary, unpaid leave of absence due to a medical disability is the full equivalent of a discharge, for unemployment insurance purposes. Tillery v. Maryland News Distribution Company, 812-BR-92.

The claimant's being placed on an involuntary, unpaid medical leave of absence due to the claimant's stress, anxiety and depression was the full equivalent of a discharge, but not for any type of misconduct. The Board applied Tillery v. Maryland News Distribution Company (812-BR-92) in deciding this case. Faulconer v. Maryland Nat'l Captl Pk & Plnng, 446-BR-00 (2000).

D. Discharge from a Temporary Agency
The claimant signed up with a temporary agency because it was the only way to obtain a long-term job. The claimant in fact was referred by the temporary agency to a clerk-typist position which she held for four years, until she was discharged through no fault of her own. Since the claimant's original intent was not to obtain temporary work and since the other positions offered by the temporary agency were not substantially equivalent to the prior long-term job, the claimant did not voluntarily separate herself from the temporary agency. The claimant was discharged but not for misconduct. Davis v. Marge Fox Personnel Services, 576-BR-89.

The claimant worked for a temporary agency from November 6, 1989 to November 22, 1989, at which time the assignment ended. The employer attempted to call the claimant with an offer of a new assignment, but was unable to personally contact her. The claimant was discharged from her employment. She became unemployed when her temporary assignment ended on November 22, 1989. No disqualification was imposed. Robinson v. SES Temps, Inc., 384-BR-90.

The claimant worked for a temporary agency from October 20, 1989 to October 26, 1989 when the assignment ended because the claimant was no longer wanted on the job due to productivity problems. The temporary agency offered the claimant another assignment on October 30, 1989, however, the claimant refused. A claimant who works for a temporary agency does not voluntarily quit his job when he refuses an assignment of work. In this case, the claimant's employment ended due to a lack of work or other reason not related to the claimant's misconduct and no disqualification was imposed. Leitzel v. Select Temporary Services, 493-BR-90.

 

II. Misconduct or Gross Misconduct?
Section 8-1002 defines gross misconduct as (i) a deliberate and willful disregard of standards of behavior that an employer has the right to expect and that shows gross indifference to the employer's interests; or (ii) repeated violations of employment rules that prove a regular and wanton disregard of the employee's obligations. Misconduct that does not fall within the above definition is not gross misconduct. The definition above also does not include aggravated misconduct.

As stated in Department of Economic & Empl. Dev. v. Jones, 79 Md. App. 531, 535-536, 558 A.2d 739 (1989), "There are no hard and fast rules to determine what constitutes deliberate and willful misconduct." In Employment Security Board v. LeCates, 218 Md. 202, 145 A.2d 840 (1958), the Court of Appeals noted that such a determination "will vary with each particular case." The Court went on to state: "Here we 'are not looking simply for substandard conduct * * * but for a willful or wanton state of mind accompanying the engaging in substandard conduct. * * * [T]he wrongness of the conduct must be judged in the particular employment context. * * * [C]ertain conduct will be so flagrant that indulging in it will undoubtedly be misconduct whether or not a specific rule prohibiting it has been expressly formulated and posted or otherwise announced to the employees.'" 218 Md. at 208, 145 A.2d. at 844, quoting Sanders, Disqualification for Unemployment Insurance, 8 V and. L.Rev. 307, 334 (1955). The Court concluded that where the claimant's conduct evinced an utter disregard of an employee's duties and obligations to the employer and was calculated to disrupt the discipline and order requisite to the proper management of a company, a finding of gross misconduct is supported.

The term "misconduct" (other than gross) is undefined in the statute. Allen v. CORE Target City Youth Program, 275 Md. 69, 338 A.2d 237 (1975). The Court of Appeals stated a standard for misconduct as follows: " . . . a transgression of some established rule or policy of the employer, the commission of a forbidden act, a dereliction of duty, or a course of wrongful conduct committed by an employee, within the scope of his employment relationship, during hours of employment or on the employer's premises." Rogers v. Radio Shack, 271 Md. 126, 314 A.2d 113 (1974).

Conduct or acts not considered serious enough to be gross misconduct may be misconduct. However, the term "misconduct" was not intended to include trivial or inconsequential acts or comments or isolated lapses in the employee's performance.

 

A. In General
Termination or layoff due to a lack of work or job abolishment is a discharge, but not for misconduct. Stevens v. Harford County Schools, 13-BR-82.

A claimant's misconduct is not mitigated by the alleged fact that others also committed misconduct. Griffith v. State Employees' Credit Union, 374-SE-92.

Where an employer discharges a claimant for a variety of actions alleged to constitute misconduct, but where some of these actions were not proven or cannot be considered as misconduct, the remaining actions should be considered, and if they amount to misconduct, the claimant was discharged for misconduct. Edmonds v. Anne Arundel County Government, 1476-BH-92.

Even though a claimant is discharged in the heat of anger, the reasons for the discharge, if they can be articulated, should be examined to determine whether they amount to misconduct. Allen v. Sentinel Newspapers, 155-BR-93.

B. Intent or Willfulness

 

1. Gross Misconduct Found
Absent medical evidence to support the claimant's allegations that his excessive tardiness was the result of a mental or emotional illness beyond his control, and in light of the claimant's contradictory testimony that he suffered from no illness which affected his work performance, a finding of gross misconduct is supported. Johnson v. Baltimore City Health Department, 1031-BH-85.

2. Misconduct Found
The claimant bypassed one part of her duties, resulting in a customer's premises being unprotected by the alarm system for one night. This was misconduct. Without sufficient evidence of a willful and wanton disregard of her obligations or a gross indifference to the employer's interest, there can be no finding of gross misconduct. Lehman v. Baker Protective Services, Inc., 221-BR-89.

Where the claimant's continued lateness, in the face of warnings, was due to the needs of her child, who suffered from mental retardation, the claimant did not have the requisite willful intent or disregard for the employer's needs to support a finding a gross misconduct. However, since the claimant regularly violated the employer's attendance policy, her actions rose to the level of simple misconduct. Bush v. Becton Dickinson and Company, 2084-BR-94.

3. No Misconduct Found
The claimant was discharged for bizarre, loud and aggressive behavior which was a side effect of legally prescribed drugs. The claimant provided medical documentation that the drugs could have been primarily responsible for the behavior leading directly to her discharge. No misconduct was found. Day v. Sinai Hospital of Baltimore, 540-BH-85.

The claimant was employed as a security guard for the Mass Transit Authority. She was arrested and unable to report to work. She notified the employer that she could not report to work for personal reasons. She was discharged due to her failure to inform the employer that she had been arrested. The employer required that members of its police force inform the employer immediately if they are arrested. The claimant was not a police officer. She reasonably believed that the rules regarding the police force did not apply to her. The claimant was later acquitted of all charges. The claimant's belief that she was not required to inform the employer of her arrest was reasonable, and her failure to do so does not amount to misconduct or gross misconduct. Gilbert v. Mass Transit Administration, 654-BH-91.

Allegations of sexual harassment in the workplace are extremely serious. However in this case, the claimant, who denied the activity for which he was discharged, was found to have been discharged but not for gross misconduct or misconduct connected with the work. The employer failed to meet its burden of proof by not presenting witnesses or "victim" testimony which would support the elements of either "misconduct" or "gross misconduct". Ingram v. Laurel Fitness & Swim Club, Inc., 02290-BR-96 (1996).

 

C. Misunderstandings
The claimant did not refuse to perform an assignment, but merely asked for assistance. The employer misunderstood and discharged the claimant for refusing to work. There was no misconduct. Duncan v. Grossman's, Inc., 661-BR-88.

The claimant was discharged because he allegedly took an unauthorized vacation. However, at the time the claimant took off from work, he honestly believed that he was on an authorized vacation leave. He had accumulated vacation leave and his belief that his vacation was authorized was reasonable. The misunderstanding between the claimant and the employer was due to a miscommunication. The claimant's actions did not amount to misconduct or gross misconduct. Sims v. Red Roof Inns, Inc., 655-BH-91.

D. Isolated Incidents
The claimant's one mistake, which occurred after he had worked only 31 days, was not misconduct. An instantaneous lapse in the performance of job duties does not constitute misconduct. Proctor v. Atlas Pontiac, 144-BR-87.

The claimant waitress was discharged after she misunderstood the owner's instruction to her on one occasion. The owner told the claimant to provide certain customers with free after-dinner drinks. The claimant misunderstood and did not charge the customers for their before-dinner drinks. When the other owner discovered this, he discharged her. This one slight lapse in the claimant's performance is insufficient to support a finding of misconduct. Gilbert v. Polo Grill, 192-BH-91.

E. Trivial or Inconsequential Act or Comment
The claimant's nondisruptive expression of displeasure with the working conditions is not misconduct. Forest v. Tys, Inc., 452-BR-89.

The claimant truck driver was angry with the employer and made an offhand remark to another driver that he felt like leaving the truck in Connecticut and going home. The claimant did not mean this remark as a serious threat, nor was it made to the employer. The claimant did not abandon his truck, but when he reported back to work, he was terminated. The claimant's discharge was not for any misconduct. Baker v. Quality Suppliers, 1600-BR-93.

F. Cumulative Effect of Incidents
The claimant resigned in lieu of discharge during an extended probationary period. The claimant's attendance and job performance were poor, and she had a bad attitude. She failed to properly notify the employer of absences, reported late for work and incurred incidents of leave without pay. Additionally, the claimant failed to maintain work schedules and files and failed to proofread her correspondence before sending it out. When she failed to improve during her extended probationary period, she was asked to resign. The claimant was discharged for gross misconduct. Chavis v. Walter P. Carter Center, 767-BH-89.

The claimant was discharged due to his continued practice of arriving late and leaving early, combined with his failure to follow proper procedures and his taking of an unauthorized vacation. This was gross misconduct. Nims v. Bay Fence Company, Inc., 958-BH-89.

The claimant failed to perform the primary duty for which she was hired. She continued to make and receive personal calls even after receiving warnings about this. She made long-distance calls for which she did not reimburse the employer. She was unproductive and made a lot of errors. She was also excessively tardy and absent. The claimant was discharged for gross misconduct. Murphy v. Loiederman Associates, Inc., 4-BR-90.

G. Effect of Warnings and Condonation

 

1. Warnings
The claimant received two prior warnings for failing to perform her job duties. The claimant was discharged for gross misconduct. Haller v. Ryder Truck Rental, Inc., 450-BR-89.

The claimant was discharged because she was allegedly harassing other employees and also because she discussed personal matters with customers. There is insufficient evidence of the first allegation. With respect to the second allegation, the claimant was encouraged to talk in a friendly manner with customers, however, talking about extremely personal matters was inappropriate. This could be misconduct in some situations, however, it is clear that in this case, the claimant was never specifically warned about this. Since the claimant was not told to stop doing this, her actions were not misconduct. Tates v. Robin George Davidson, 881-BH-91.

For unemployment insurance law purposes, it is not relevant whether the claimant was owed more warnings prior to discharge under the technicalities of the employer's discharge procedures. Oakley v. Progress Unlimited, Inc., 394-BR-92.

2. Condonation
The claimant missed a great deal of time from work due to personal problems, and the employer acquiesced to these absences. The claimant was later discharged for excessive absenteeism. Since the employer acquiesced to the claimant's conduct, it cannot be considered simple or gross misconduct within the meaning of Sections 8-1002 or 8-1003. Cortez v. American Cooperage and Steel Drum, 765-BH-84.

The employer repeatedly warned the claimant about his absenteeism, lateness and failure to properly request leave. Repeated warnings over a long period of time are the opposite of condonation. Washington v. Montgomery County Public Schools, 774-BR-92.

 

H. Discharge Motivated by Discrimination
The employer attempted to transfer and later terminated the store floor person on the grounds that the employer wanted a younger person in the sportswear department. Although the employer had a right to transfer an employee under its policy, it had no right to transfer or terminate an employee on the basis of age. There was no misconduct on the part of the claimant. Ruth v. Epstein's, 1073-BH-81.

The claimant was discharged for the negligent operation of equipment, insubordination toward a supervisor, refusing to follow the supervisor's reasonable instruction, leaving his work station early without permission, and 22 incidents of lateness within a 90-day period. The claimant failed to prove that the reasons for the discharge, though objectively based, were just a pretext for an underlying discriminatory motive. The discharge was for gross misconduct. Anderson v. Chem Clear, Inc., 912-BR-87.

 

Discharge - Sections 8-1002, 8-1002.1, 8-1003 continued