                     IN THE COURT OF APPEALS OF TENNESSEE
                          WESTERN SECTION AT JACKSON
                 ________________________________________________

LORETTA TRULL,

       Petitioner-Appellant,
                                                     Crockett Chancery No. 6967
Vs.                                                  C.A. No. 02A01-9603-CH-00041

MARGARET CULPEPPER,
Commissioner of Tennessee
Department of Employment
Security and KERR PLASTIC
PRODUCTS; MANPOWER
TEMPORARY SERVICES,

      Defendants-Appellees.
___________________________________________________________________________

             FROM THE CHANCERY COURT FOR CROCKETT COUNTY
                  THE HONORABLE GEORGE R. ELLIS, JUDGE



                                   Beth S. Bates of Jackson
                                        For Appellant

                     Charles W. Burson, Attorney General and Reporter
                               Robeter W. Stack of Nashville
                        Jennifer H. Small, Deputy Attorney General
                                  For Appellee, Culpepper




                                         AFFIRMED
                                        Opinion filed:




                                                              W. FRANK CRAWFORD,
                                                              PRESIDING JUDGE, W.S.

CONCUR:

DAVID R. FARMER, JUDGE
HEWITT P. TOMLIN, JR., SENIOR JUDGE
     This is an unemployment compensation case. Petitioner, Loretta Trull, appeals from the

order of the chancery court dismissing her petition for certiorari and affirming the decision of

the Board of Review that disallowed her claim for unemployment compensation benefits.

       Trull was a machine operator for Kerr Plastic Products (Kerr) from April 1994 to March
1995.1 Kerr has an attendance policy where employees accumulate points for each absence or

tardiness incident. An employee is assessed six points for a day of absence, an additional three

points if that employee fails to notify Kerr of the upcoming absence at least one-half hour prior

to the scheduled start of the shift, and two points for any tardiness. An employee who reaches

50 points is automatically terminated.

       On March 7, 1995, Trull reached 50 points and, on March 9, 1995, she was terminated

for excessive absences. The points were accumulated over a three month period, from December

1994 through March 7, 1995. Trull’s points mostly resulted from family illnesses over that

period to herself, her daughter, and her mother. According to Beth Wiseman, Human Resources

Manager at Kerr, twenty-seven of the points were from Trull’s illnesses and twenty-three were

for family emergencies. In addition to the illnesses, Trull was tardy one day and was absent one

day because of her daughter’s wedding. On January 24, 1995, Trull received a verbal warning

about her point total. However, she accumulated more points, and on February 21, 1995, she

received a written warning. On March 6 and 7, 1995, Trull was absent because her mother was

in intensive care at the hospital. The only fact in dispute is the time of a phone call made by

Trull on March 6 to notify Kerr that her mother was ill. Kerr claims the call was within one-half

hour of Trull’s scheduled shift which is in violation of its policy and, therefore, they assessed

her an additional three points. Trull claims the call was ten minutes earlier than Kerr claims, and

she should not have been assessed the additional three points. However, the additional points

forced her total over the set level of 50 points, and she was terminated.

       Kerr’s policy does not require medical proof of an illness, so Trull did not provide

medical documentation for the illnesses or the emergencies. Basically Kerr’s policy is a no-fault

policy, but the employee can work off the points if he or she works for a period of time without

accumulating more points. In addition, a Kerr employee may request personal time off or a

personal leave of absence to attend to family emergencies or personal illness without

accumulating points. To be effective, the request for a leave of absence must be in writing. Trull

claims that she attempted to request a leave of absence, however, her request was not in writing

and, therefore, was not honored by Kerr.


       1
        Before joining Kerr as a permanent employee, Trull was assigned to Kerr as a
temporary employee through Manpower Temporary Services.

                                                2
       Trull filed a claim for unemployment benefits on March 22, 1995. The Tennessee

Department of Employment Security (TDES) denied the claim for unemployment benefits based

on T.C.A. § 50-7-303(a)(2) (Supp. 1996). The TDES decision states: “Claimant was discharged

from most recent employment because of excessive tardiness and/or absenteeism. Evidence

shows that there were warnings prior to discharge. This is considered work-related misconduct.

Claim is denied under TCA 50-7-303.” Trull appealed the denial and a hearing was held on May

11, 1995. On May 16, 1995, the Appeals Tribunal affirmed the TDES decision. The decision

of the Appeals Tribunal states in part pertinent to this appeal as follows:

               FINDINGS OF FACT: The appeal was filed timely, and the
               Appeals Tribunal has jurisdiction. Claimant’s most recent
               employment prior to filing this claim was with Kerr Plastics
               Products, from April 8, 1994 until March 9, 1995. She was
               discharged for excessive absenteeism. Claimant had worked for
               the employer approximately 13 months and was absent or left
               early 12 times. Some of the absences were because of family
               illness and personal illness. None of the personal illnesses were
               documented by a doctor’s statement. On January 28, 1995,
               claimant received a verbal warning. On February 24, 1995, she
               received a written warning about her absenteeism.
               CONCLUSIONS OF LAW: Although the claimant did have
               some mitigating circumstances causing her to miss scheduled
               work, her accumulated absences were what caused her to be
               discharged and not any single instance of absenteeism. Claimant
               was unable to substantiate with medical proof a need to be off
               work. Therefore, the Appeals Tribunal finds that claimant
               violated the very liberal attendance policy of the employer, and
               also violated a duty she had to report for scheduled work even
               after being warned. Therefore, it is found that 12 attendance
               policy infractions in a 13 month period is misconduct under TCA
               § 50-7-303 (a)(2). Therefore, taking into consideration the strong
               agreement [sic] of the claimant’s counsel, the decision of the
               Agency which denied the claim is affirmed.
               DECISION: The claimant is not eligible for unemployment
               benefits under TCA § 50-7-303 (a)(2). The claim is denied as of
               the date of filing and until the claimant qualifies for benefits in
               accordance with the Tennessee Employment Security Law.

Trull appealed the Tribunal’s decision to the TDES Board of Review. The Board of Review

adopted the Tribunal’s findings of fact and conclusions of law and affirmed the decision. On

July 21, 1995, Trull filed her petition for certiorari in the Chancery Court of Crockett County,

and the Chancellor subsequently found that the Board of Review’s decision was supported by

the evidence, affirmed its decision, and dismissed the petition. Trull has appealed, and presents

the issues as follows: 1) whether her personal and family illness related absences were “work

related misconduct” within the meaning of T.C.A. § 50-7-303(a)(2); and 2) whether or not



                                                3
misconduct occurred because she was mistakenly assessed three discipline points too many and

thus should not have been terminated pursuant to Kerr’s own policy. The issue we must decide

is whether the Board of Review’s decision that Trull is not entitled to unemployment

compensation benefits is supported by substantial and material evidence.

       The standard of judicial review applicable in unemployment compensation benefit cases

where the trial court sits as an appellate court is set forth in T.C.A. § 50-7-304(I)(2) and (3)

(Supp. 1996):

                (2) The chancellor may affirm the decision of the board, or the
                chancellor may reverse, remand, or modify the decision if the
                rights of the petitioner have been prejudiced because the
                administrative findings, inferences, conclusions or decisions are:

                       *       *       *       *       *       *       *

                        (E) Unsupported by evidence which is both
                        substantial and material in the light of the entire
                        record.
                (3) In determining the substantiality of evidence, the chancellor
                shall take into account whatever in the record fairly detracts from
                its weight, but the chancellor shall not substitute the chancellor’s
                judgment for that of the board of review as to the weight of the
                evidence on questions of fact. No decision of the board of review
                shall be reversed, remanded, or modified by the chancellor unless
                for errors which affect the merits of the final decision of the
                board.

Substantial and material evidence is such relevant evidence as a reasonable mind might accept

to support a rational conclusion and such as to furnish a reasonably sound basis for the action

under consideration. Southern Ry. v. State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn.

1984) (citations omitted). Courts should not disturb a reasonable decision of an agency which

has expertise, experience and knowledge in a particular field. Id.

       This Court must apply the same standard as the trial court in reviewing the trial court's

decision in an unemployment compensation case. Ford v. Traughber, 813 S.W.2d 141, 144

(Tenn. App. 1991). In Sabastian v. Bible, 649 S.W.2d 593, 594-5 (Tenn. App. 1983), we stated:

                In order to sustain the Board of Review's application of the
                provisions of the statute, we need not find that its construction is
                the only reasonable one or even that it is the result we would have
                reached had the question arisen in the first instance in a judicial
                proceeding. The reviewing court's function is severely limited.
                 All that is needed to support the commission's interpretation is
                that it has warrant in the record and a reasonable basis in law.

       The Board's ruling disqualifying Trull for benefits was based upon T.C.A. §



                                                 4
50-7-303(a)(2) (Supp. 1996) which we quote in pertinent part:

               50-7-303. Disqualification for benefits. -- (a) Disqualifying
               Events. A claimant shall be disqualified for benefits:
               (2) If the commissioner finds that the claimant has been
               discharged from such claimant’s most recent work for misconduct
               connected with such claimant’s work, such disqualification shall
               be for the duration of the ensuing period of unemployment and
               until such claimant has secured subsequent employment . . . .”

       Trull was terminated by Kerr because repeated absences and tardiness caused her to

accumulate 50 points, the termination level under Kerr’s policy. Trull argues that her absences

for family and personal illness were beyond her control, and therefore, not misconduct. Trull

does not dispute that she was absent, but, instead contends that her absences were not work-

related misconduct.

       The unemployment compensation statutes were enacted for the benefit of the

unemployed, and since the disqualification for benefits because of misconduct connected with

work is penal in nature, a liberal construction of the statute in favor of the employee is required.

Weaver v. Wallace, 565 S.W.2d 867, 869-70 (Tenn. 1978); Miotke v. Kelley, 713 S.W.2d 910,

913 (Tenn. App. 1986). The General Assembly did not provide a definition of misconduct

connected with employment. Therefore, misconduct within the meaning of T.C.A. § 50-7-

303(a)(2) must be determined on a case by case basis. Miotke, 713 S.W.2d at 913. The burden

of proving the disqualification for benefits rests on the employer. Id.

        Excessive absenteeism may be the basis of a finding of misconduct warranting the denial

of unemployment benefits, but that level of absenteeism must be determined on an ad hoc basis.

Wallace v. Stewart, 559 S.W.2d 647, 648 (Tenn. 1977), Miotke, 713 S.W.2d at 913. In Wallace,

the Supreme Court considered whether absenteeism could be misconduct:

                        No aspect of contract of employment is more basic than
                the right of the employer to expect employees will appear for
                work on the day and at the hour agreed upon. Persistent failure
                to honor that obligation evinces a substantial disregard for the
                employer’s interest and may justify a finding of misconduct
                connected with the employment.

Wallace, 559 S.W.2d at 648.

        While unexcused and unjustified absenteeism can be a basis for finding misconduct,

absences due to illnesses and job injuries do not constitute misconduct under the Employment

Security Law. Simmons v. Traughber, 791 S.W.2d 21, 26 (Tenn. 1990). Trull relies on



                                                 5
Simmons to establish that her absences were not misconduct. In Simmons, the Supreme Court

remanded the cause to TDES for a new hearing. Id. at 26. However, the Court remanded the

case because the plaintiff was prejudiced by lack of counsel not because some of the plaintiff’s

absences were excused. Id. The Supreme Court stated that “[a] competent attorney, through

efficient cross-examination and introduction of medical records, may have been able to show that

Plaintiff was absent so frequently because of injuries and poor health.” Id.

         In the instant case, Trull was properly represented by counsel and presented witnesses

and evidence. However, the agency, the Appeals Tribunal, the Board of Review, and the

chancery court all felt that Kerr had carried its burden of proving that her excessive absenteeism

was misconduct. We believe that substantial and material evidence supports the Board’s

decision that Trull’s pattern of absences and tardiness constituted misconduct related to her

work. Like the Appeals Tribunal and the Board of Review, we believe that she “violated the

very liberal attendance policy of the employer, and also violated a duty she had to report for

scheduled work even after being warned.”

         Trull was terminated after she reached Kerr’s policy level of 50 points. Only twenty-

seven of those points were for her own illnesses. We do not believe that an absence to attend to

an adult daughter’s illness or to participate in the daughter’s wedding is excusable. In addition,

Kerr provided a policy that allowed employees to take a personal leave of absence when

confronted with a family crisis like Trull faced when her mother was in intensive care. However,

Trull did not follow Kerr’s policy and did not appear for work. Although the cause of the

absences is unfortunate, Trull’s inability to follow Kerr’s policy resulted in her termination.

These absences are part of a pattern of actions by Trull that show a “substantial disregard for the

employer’s interest.” Wallace, 559 S.W.2d at 648.

         From our examination of the entire record, we find substantial and material evidence to

support the decision of the Board of Review that Trull’s absences and tardiness constituted

misconduct related to her work as provided in T.C.A. § 50-7-303(a)(2) (Supp. 1996). The

judgment of the chancery court is affirmed, and the costs of this appeal are assessed against

Trull.

                                                       _________________________________
                                                       W. FRANK CRAWFORD,
                                                       PRESIDING JUDGE, W.S.

                                                6
CONCUR:


_________________________________
DAVID R. FARMER, JUDGE

_________________________________
HEWITT P. TOMLIN, JR.
SENIOR JUDGE




                                    7
