DocketNumber: No. CV91 03 75 98S
Citation Numbers: 1992 Conn. Super. Ct. 6583
Judges: McGRATH, JUDGE CT Page 6584
Filed Date: 7/10/1992
Status: Non-Precedential
Modified Date: 4/18/2021
The plaintiff, JD Paving Sealing, Inc., filed suit against the administrator of the Unemployment Compensation Act to appeal the decision granting one of plaintiff's former employees benefits pursuant to the Act. The record reveals the following facts.
The plaintiff terminated Eric Battis on June 11, 1991. Battis filed a claim for unemployment compensation. The compensation examiner denied the claim because Battis was discharged for repeated wilful misconduct in that he was repeatedly absent from work without giving notice to the plaintiff.1 The examiner based his or her decision on a fact-finding supplement completed by the plaintiff and a statement made by the claimant.
The claimant appealed the examiner's decision to the referee pursuant to General Statutes
The referee did not postpone the hearing but held it as scheduled. The plaintiff employer did not appear at the hearing. The referee found that "[t]he press of business does not excuse the employer's non-appearance." The referee felt compelled to "rely [solely] on the claimant's sworn statements" and did not consider an exhibit sent to the referee by the employer because the employer did not appear at the hearing. Based on the claimant's testimony, the referee found that "the claimant's discharge was prompted by a final act of wilful misconduct with no prior incidents which constitute wilful misconduct." Because the referee found that the employer discharged the claimant for just one occurrence, the referee reversed the examiner's decision and sustained the claimant's appeal.
Thereafter, the plaintiff/employer appealed to the board of review, pursuant to General Statutes
On September 20, 1991, the board mailed its decision to uphold the findings of fact and conclusions of law reached by the referee and adopted them as its own. The board affirmed the referee's decision and dismissed the appeal.
On October 9, 1991, the plaintiff filed a letter of appeal to superior court, pursuant to General Statutes
On February 28, 1992, the defendant moved for judgment. The plaintiff has not filed anything in response.
Appeals from decisions of unemployment compensation boards are not tried de novo. Acro Technology, Inc. v. Administrator,
In its letter of appeal, the plaintiff asserts that the evidence it submitted to the referee and the board show that, contrary to the referee's finding, the claimant was late more than once. The defendant administrator argues that any evidence that the plaintiff wished to submit should have been presented at the hearing before the referee and that the plaintiff waived its right to do so when it failed to appear at the hearing. Furthermore, the referee found that the nonappearance was not justified by good cause.
Section
The referee apparently considered fatal the failure by the plaintiff to produce records of the claimant's attendance and tardiness. The referee dismissed the plaintiff's other exhibits as mere allegations and hearsay because the plaintiff did not appear at the hearing.2
The referee did not refer to the examiner's finding that the claimant had been dismissed for repeated absences without giving notice. The referee then based his decision solely upon the claimant's sworn statement and held that the claimant's absences and tardiness were minimal and that he had been fired for one act of wilful misconduct and was therefore entitled to unemployment benefits.
It is noted that the referee should have considered the record established by the examiner in making his ruling. State Regs.
The record of the examiner's decision shows that he found the employer more credible than the claimant. Because the referee reviews the examiner's decision de novo; General Statutes
Furthermore, the plaintiff submitted records of the claimant's absences and tardiness with its appeal to the board of review. Although the board may hear additional evidence or testimony; General Statutes
The defendant's Motion for Judgment is granted.
William J. McGrath, Judge