Durbin v. Department of Workforce Services, Workforce Appeals Board , 728 Utah Adv. Rep. 14 ( 2013 )

2013 UT App 45_________________________________________________________
THE UTAH COURT OF APPEALS
JOHN D. DURBIN,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES, WORKFORCE
APPEALS BOARD
Respondent.
Per Curiam Decision
No. 20120966‐CA
Filed February 22, 2013
Original Proceeding in this Court
John D. Durbin, Petitioner Pro Se
Jaceson R. Maughan, Attorney for Respondent
Before JUDGES ORME, THORNE, and ROTH.
PER CURIAM:
¶1 John Durbin petitions for review of the Workforce Appeals
Board’s (the Board) decision affirming the denial of unemployment
benefits based on a finding that Durbin was discharged for just
cause. We decline to disturb the Board’s decision.
¶2 A claimant is ineligible for unemployment benefits if he or
she was discharged for just cause. See Utah Code Ann. § 35A‐4‐
405(2)(a) (LexisNexis 2011). The determination of whether an
employer had just cause to terminate an employee is a mixed
question of law and fact. See Smith v. Workforce Appeals Bd., 2011 UT
App 68, ¶ 9, 252 P.3d 372. This court will reverse an administrative
agency’s findings of fact “only if the findings are not supported by
Durbin v. Dept. of Workforce Services
substantial evidence.” Drake v. Industrial Commʹn, 939 P.2d 177, 181
(Utah 1997). This court will uphold the Board’s decision applying
law to facts “so long as it is within the realm of reasonableness and
rationality.” See Arrow Legal Solutions Grp., PC v. Workforce Servs.,
2007 UT App 9, ¶ 6, 156 P.3d 830.
¶3 The Board had substantial evidence to support its determi‐
nation that Durbin was discharged for just cause. The employer
provided documentation showing the verbal and written warnings
regarding Durbin’s attendance issues, establishing that Durbin
understood both the expectations for attendance and the conse‐
quences of further attendance problems. Testimony from both the
employer and Durbin established a pattern of tardiness that
negatively affected the employer. Based on substantial evidence of
a chronic attendance problem, the Board determined that Durbin
was discharged for just cause. That determination was rational and
reasonable.
¶4 Durbin asserts that some of the tardiness or absences should
have been excused because he was attending counseling at the
time.1 Even if he was attending counseling sessions, however, the
tardiness was not excused because he failed to provide advance
notice of the sessions and failed to notify his supervisor that he
would be late. Although the employer would accommodate such
sessions, advance notice was required so the employer could make
other arrangements for Durbin’s shift. Without notice, the tardiness
was disruptive to business operations.
¶5 In sum, we decline to disturb the Board’s decision.
1. Durbin attached new documents to his response to this court’s
motion for summary disposition. These documents are not in the
record on review and, accordingly, are not considered. See Utah R.
App. P. 11.
20120966‐CA 2 2013 UT App 45