


Attorney for Appellant

Patrick B. McEuen
Singleton, Crist, Austgen & Sears
Munster, IN



Attorneys for Appellee

Karen M. Freeman-Wilson
Attorney General of Indiana

Christopher L. Lafuse
Deputy Attorney General
Indianapolis, IN

Appellee Pro Se

Thomas Pierce
Gary, Indiana



      IN THE
      INDIANA SUPREME COURT


STANRAIL CORP.,
      Appellant,

      v.

UNEMPLOYMENT INSURANCE
REVIEW BOARD, et. al.
      Appellee.



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)     Court of Appeals No.
)     93A02-9911-EX-765
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      APPEAL FROM THE REVIEW BOARD of the

                 INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT

      Cause No.  9924-7099-R-615



                 DISSENT FROM DENIAL OF PETITION TO TRANSFER




                                May 30, 2001

Sullivan, J., dissenting from denial of transfer.

      In this case, the record indicates  that  an  employee  was  dismissed
pursuant to his employer’s attendance policy when he failed to call  in  the
fact that he was going to be absent on two days.  The employee  then  sought
unemployment compensation.  Under the Unemployment  Insurance  Act  (“Act”),
an employee can be  terminated  for  "just  cause,"  and  lose  unemployment
compensation through the "knowing violation of a  reasonable  and  uniformly
enforced rule of an employer."   Ind.  Code  §  22-4-15-1(d)(2).   Here  the
Court of Appeals held that it  had  been  reasonable  for  the  employer  to
dismiss the employee for not calling in the fact that he  was  going  to  be
absent.  Stanrail Corp. vs. Unemployment Insurance Review Board, 734  N.E.2d
1102 (Ind. Ct. App. 2000).


      This determination by the  Court  of  Appeals  appears  to  have  been
correct and I would affirm it.  However, I would grant transfer  to  address
an issue in this case identified by the Unemployment Insurance Review  Board
(“Board”).


      The rule under which the employee was terminated here was a “no-fault”
attendance policy  maintained  by  his  employer.   The  policy  assigned  a
certain number of demerit points to various types of attendance  violations;
when a minimum  number  of  demerit  points  are  accumulated,  a  specified
sanction is imposed.  An employee accumulating more than 500 demerit  points
was  subject  to  immediate  termination.   Here  100  demerit  points  were
assigned whenever an employee  missed  work  for  whatever  reason  and  300
demerit points were assigned for being  absent  without  reporting.   On  an
annual basis, each employee was entitled to five  sick  days,  two  personal
business days, two periods of three or more  days  for  illnesses  requiring
medical  treatment,  and  accrued  vacation  days.   Under  the  policy,  an
employee could accumulate sufficient demerits to  be  discharged  simply  by
being sick on more than five (non-consecutive) days through no fault of  his
or her own.


      The Board believes  that  violations  of  such  “no-fault”  attendance
policies do not constitute “just cause” for termination under the Act.   The
Board contends that the purpose of the Act is to provide payment to  persons
unemployed through no fault of their own and  that  the  effect  of  denying
benefits to persons dismissed for violating no-fault attendance policies  is
to deny benefits to persons who miss work through no fault of their own.

      The Legislature has declared it to be the public policy of  the  State
"to provide for payment of benefits to persons unemployed through  no  fault
of their own."   Indiana  Code  §  22-4-1-1.   I  believe  we  should  grant
transfer to make clear  that  benefits  cannot  be  denied  to  an  employee
dismissed for absence due to legitimate illness where  the  attendance  rule
at issue does not provide sufficient time off for  legitimate  illness.   To
do otherwise denies benefits to persons who miss work through  no  fault  of
their own in contravention of the Unemployment Insurance Act.

      However, as noted at the outset, I agree that the employee here is not
entitled to relief.  While the Unemployment Insurance Review Board  believed
the employer's attendance policy was unreasonable in that it did  not  allow
employees  sufficient  time  off  for  legitimate  illnesses,  the  employee
terminated here was not the victim of the  no-fault  provision:  he  was  at
fault for not reporting in as required.


      BOEHM, J., concurs.
