Boyland v. Southern Structures, Inc. , 172 N.C. App. 108 ( 2005 )

STEELMAN, Judge

dissenting.

I must respectfully dissent from the majority opinion in this case.

I agree with the majority that the issue presented is whether the ESC’s findings of fact support its conclusions of law, and that our review is de novo.

Resolution of this case hinges on whether employer gave employee warnings sufficient to comply with N.C. Gen. Stat. § 96-14(2a). Employer instructed employee to keep a daily log of the work he preformed and turn these in to his employer. Employer gave employee a palm pilot to facilitate this task. Employee kept the log for a while, but then stopped. Both Ms. Faw and Ms. Summey, asked employee to turn in his log notes. Despite their repeated requests, employee failed to do as asked. The majority holds it is unclear whether Ms. Faw and Ms. Summey’s multiple requests to turn in his notes constituted a warning. Such a holding would require employer to have told employee that failure to turn in the notes was a violation of employer’s rules and this was a “warning.” I would not read the requirements of N.C. Gen. Stat. § 96-14(2a) so narrowly. Where an employer makes repeated requests to an employee to perform a task that was clearly assigned to him and the employee continues to ignore the requests, this constitutes a warning for purposes of “substantial fault” under N.C. Gen. Stat. § 96-14(2a). Whether the employer gave a warning should be determined on the facts of each case and should not be determined by whether the employer used the magic word “warning.”

As to finding of fact 14 dealing with employee’s failure to call in sick, the ESC specifically found that: “Claimant was out again due to the flu and failed to call despite having been warned.” The majority takes a unique approach to this finding, holding: “we are not convinced that the act of advising an employee about the employer’s absence policy constitutes a warning.” The majority previously noted that the ESC’s findings were binding on appeal. The ESC found that employer issued employee a warning. It is not the role of the appellate courts to twist the plain meaning of the ESC’s findings to achieve a particular result.

I would hold that either of the ESC’s findings 13 or 14, standing alone, support its conclusion of substantial fault. As a result, I would reverse the trial court’s order in this matter.