Opinion
C.A. No.: 99A-09-002-FSS.
Submitted: March 14, 2000.
Decided: June 28, 2000.
Upon Appeal from the Unemployment Insurance Appeal Board- AFFIRMED
Joseph R. Slights, III, Esquire, Nancy W. Law, Esquire, Morris, James, Hitchens Williams, 222 Delaware Avenue, P.O. Box 2306, Wilmington, DE 19899-2306. Attorneys for Appellant.
Ms. Sharron D. Wilkerson, 129 Chestnut Crossing, Apt. K, Newark, Delaware 19713. Pro Se Appellee.
James J. Hanley, Esquire, Carvel State Office Building, 820 N. French Street, 6th Floor, Wilmington, Delaware, 19801. Deputy Attorney General for Unemployment Insurance Appeal Board.
ORDER
This is an appeal by the employer from an August 18, 1999 decision of the Unemployment Insurance Appeal Board. UIAB granted unemployment benefits to Appellee, who was terminated after refusing to return to work in protest over working conditions. The employer, Mid-Atlantic Pain Institute, filed an opening brief on January 18, 2000. Appellee did not file an answering brief. The Court is deciding the appeal on the basis of the brief and the record, including the UIAB decision.
I.
Appellee was a medical assistant. Her duties included answering patient phone calls, pulling patient records and consulting with a physician about patients' concerns. She did not have primary healthcare responsibilities. Appellee, who was pregnant, worked long hours and significant mandatory overtime without breaks. Appellee and other employees complained to the employer about their working conditions. The employer's administrator described Appellee and other employees as having been "disgruntled" for at least two months before the protest. It is agreed that Appellee's job action happened a few days before she was scheduled to meet with the employer concerning working conditions.
On Friday, April 23, 1999, at around noon, Appellee and two other employees left for lunch. During lunch, the employees discussed their dissatisfaction with the employer's non-responsiveness to their grievances. The employees decided not to return from lunch in protest. At approximately 3 p.m., one of Appellee's coworkers called the employer to say that none of the three would return that afternoon. It is undisputed that no one ordered the disgruntled employees to return to work or threatened them with dismissal if they did not finish their shifts. Instead, the workers were asked to return the following Monday, which they did. That day apparently passed without incident. On Tuesday, all three employees were fired.
According to the record, the specific cause of Appellee's termination was patient abandonment. Appellee testified that she could not understand that justification because on the afternoon of her absence, there were neither physicians nor patients in the office. Appellee noted that in emergencies, she had to consult a physician before doing anything. In non-emergency situations, Appellee had to contact a physician to get permission before doing anything approximately ninety percent of the time. Appellee was not concerned about her absence because the physician for the office was in surgery that afternoon. When no physician was in the office, Appellee had to call another office to speak to a physician, then wait for the return phone call. Appellee claimed that she would have been working the telephone if she had come back from lunch. In short, Appellee basically claimed that she did not abandon any patients because there were none to abandon while she was out of the office. The employer presented no evidence to the contrary.
II.
The Appeals Referee found:
The record shows that the claimant simply did not return from lunch on the afternoon of April 23, 1999, but did call in to report off. The claimant was apparently angered over the employer's inaction to the constant complaints of staff on the conditions of employment. The answer was always the same, the employer had too much on their plates to discuss the clinical side of the business. The claimant's failure to return that day was a simple protest over the employer's apparent inaction. Whereas a meeting was apparently pending for April 27, 1999 in reference [t]o the continuing complaints, the claimant was terminated upon work return to work. . . . It should be noted that the claimant was not assigned to serve any patients in the Wilmington office that final day.
A review of the record does not support a finding that this isolated incident of misconduct rose to the level of wilful misconduct or just cause for discharge. . . .
After further hearing, UIAB agreed with the Appeals Referee. UIAB found:
The Board heard testimony from the employer who acknowledged that the claimant had advised her employer of problems involving the work place. On April 23, three employees failed to return to work after lunch. The claimant stated that this act was intend[ed] as a protest to the lack of progress in resolving the problems. The employer construed [t]he claimant's actions as abandonment of pain patients. The Board accepts the claimant's statement that her responsibilities on the afternoon of April 23, involved only telephone duties. The Board concludes that the claimant's failure to attend work was not at the expense of patients. The Board concludes that the claimant's actions were not wilful or wanton misconduct. The Board notes that there was no prior warning or a prior incident.
III.
The Court's standard when reviewing a decision by UIAB is whether the findings and conclusions are free from legal error and supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The employer bears the burden of proving wilful misconduct, such as patient abandonment.IV.
The Court agrees with the Appeals Referee and the Board. Of course, showing up to work and staying on the job is fundamental. That truism is especially important for healthcare workers. In this case, however, Appellee's termination allegedly was on the specific basis of patient abandonment. That term implies something that did not happen. The employer did not demonstrate patient abandonment in light of the fact that there were no patients scheduled for the afternoon of Appellee's absence. Moreover, until she walked out, Appellee was a diligent employee, putting in long hours and a lot of overtime. When she finally acted up, she was given no warning or an order that she disobeyed. To the contrary, she was told to return the following Monday, which she did. When she returned to work as the employer instructed, she was allowed back and worked all day without incident. Then, instead of meeting with her on Wednesday in order to resolve their long-standing issues as scheduled, the employer summarily fired Appellee on Tuesday.
The Court agrees that the employer has not demonstrated that Appellee was fired for wilful misconduct such as patient abandonment. In some instances, a single failure to return to work might amount to wilful misconduct. That is especially true where patients are inconvenienced, or worse, their health is jeopardized. Those concerns are not present here. Termination also might be justified for refusing to obey a return to work order. Although this employee's single failure to return to work demonstrates poor judgment born of frustration, the Court agrees that under these particular circumstances, it does not constitute wilful misconduct. The UIAB decision correctly applies the law to the facts in this case. Appellee's claim has merit and she is entitled to unemployment benefits.
V.
For the foregoing reasons, the August 18, 1999 decision of the Unemployment Insurance Appeal Board is AFFIRMED.