Getting Poor Grades and A Lot

of Absences not “Misconduct”


Plumbing Company Strikes Out

with Argument that Choice to

Care for Mom was Conscious

Decision against Policy

             In Abbott Industries v. Department of Employment Security, __IllApp.3rd__, No, 2-10-0610 (2nd Dist. June 20, 2011) Cynthia Mitchell was an apprentice with a Bensenville plumbing firm.  She participated in a training program for one day each week in which her progress was graded.   

             She received poor grades (2.15 average; Abbott expected a 2.5 minimum) and missed a number of days over time to care for her mother.  In 2008 she did work a full day on 25 separate occasions in one year.  When she was fired in December 2008 for poor grades and excessive absenteeism and tardiness, she filed for unemployment benefits.

             Abbott argued up the chain of administrative review that  1) her failure to make the minimum grade average was intentional, threatening her license as a plumber, 2) this deliberate failure constituted a resignation,  and 3) her constant tardiness and absences to care for her mother were also willful violations of the company’s policy on attendance.

             The appellate court found that there was no quit because her 2.14 grade average was sufficient to maintain a provisional license, even if Abbott demanded a 2.5 average.

             Mitchell testified that she had let Abbott know about a family situation, leaving her as the only one to care for her mother, which was the reason for her absences. 

             The appellate court recited the familiar formula for Section 602A misconduct cases under the Unemployment Insurance Act:  a) was there a deliberate and willful violation of,  b) a reasonable rule or policy,  where  c) the violation harmed the employer, or was repeated after a warning.  The court found there was no dispute that Abbott’s rules regarding grades and attendance were reasonable, and that violation of these policies would cause harm to Abbott.  It was also undisputed that Mitchell committed violations.

             But the court found that her violations were not deliberate and willful.  Abbott never contradicted her testimony that she was the sole caregiver for her mother, and that her mother’s illness was outside Mitchell’s control.  “There is no evidence that Mitchell took her employer’s attendance rules lightly or intentionally disregarded them,” the court stated, “rather the record establishes that she was unable to comply with those rules due to the need to care for her mother and the lack of alternatives.”

             Citing a 1988 decision, Abbott had argued that her gross tardiness and missed partial days was so extreme that it became misconduct, tantamount to three days no-call no-show situations generally determined to be misconduct at the IDES. 

              But the court rejected this contention.  The 1988 case was decided under a previous version of 602A that did not require proof of willfulness.  And in that case, the claimant was out 20% of the time, whereas here, Mitchell effectively was tardy or absent 10% of the time.

             There was needless debate in this case over whether Mitchell had been counseled and how many times.  Evidently Abbott had committed the sin of poor documentation.

             If you don’t chronicle what happened, it didn’t happen.