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IN THE COURT OF APPEALS 7/15/97 OF THE STATE OF MISSISSIPPI

NO. 96-CC-00489 COA

MISSISSIPPI EMPLOYMENT SECURITY COMMISSION APPELLANT v. TAMRA L. UPCHURCH APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. R. KENNETH COLEMAN COURT FROM WHICH APPEALED: MARSHALL COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JAN GARRICK ATTORNEY FOR APPELLEE: NO BRIEF FILED FOR APPELLEE NATURE OF THE CASE: DENIAL OF UNEMPLOYMENT COMPENSATION BENEFITS TRIAL COURT DISPOSITION: TRIAL COURT REVERSED COMMISSION DENIAL OF UNEMPLOYMENT BENEFITS

MANDATE ISSUED: 8/5/97

EN BANC. McMILLIN, P.J., FOR THE COURT: The issue before the Court today involves the question of whether an employee's recurring tardiness in reporting for work can rise to the level of misconduct sufficient to deny the employee's entitlement to unemployment compensation benefits. The Mississippi Employment Security Commission Board of Review, adopting en toto the findings and conclusions of the Appeals Referee, determined that, in this case, the employee's persistent lateness in the face of warnings and escalating disciplinary actions constituted disqualifying misconduct. On appeal, the Circuit Court of Marshall County reversed the Board and awarded benefits to the employee, Tamra L. Upchurch. The commission perfected this appeal. I. Facts

Upchurch was employed as a fork lift driver and inventory cycle counter with a company known as E. D. Smith. She worked for the company a total of nine months before she was terminated on August 18, 1995. The proof shows that Upchurch began to be tardy for work in July. The testimony at the hearing before the Appeals Referee by the employer's representative is something less than a model of clarity, either because of the witness's confusion or because of errors in the transcription of the testimony. However, it does appear with some measure of certainty that the following is a chronology of events: Upchurch was two minutes late for work on July 11, three minutes late on July 12, seven minutes late on July 13, and six minutes late on July 14. As a result, under published company policy, she was given a verbal warning concerning excess tardies. She was tardy to an unknown degree on July 24 and was given a written warning of the consequences of her continued tardiness on August 1. She was late again on August 3, though the record does not reflect how late. This resulted, under company policy, in her receiving a two-day suspension from work. This penalty was carried out on August 14 and 15. Upchurch was late yet again on August 18, whereupon she was terminated. Upchurch claims that her tardiness was not due to disregard for her duties as an employee of E. D. Smith. Rather, she claims that her problems arose when she took in two nieces to live with her. Upchurch claimed that the girls had been faced with institutionalization, had she not agreed for them to come live with her. She testified that her attendance record had been satisfactory prior to this change in her family situation. She said that she was late because she was responsible for seeing that

the nieces got onto the school bus, and that, when the bus was late, as it apparently often was, she was correspondingly late for work, despite "speeding" to work to try to avoid or minimize her tardiness. She claimed that she had sought, without success, to obtain a modification in her work schedule to accommodate this new family responsibility. This testimony by Upchurch was not contradicted by any other evidence. Neither is there any indication that the Appeals Referee found her testimony implausible or unworthy of belief. To the contrary, he appeared, for purposes of his opinion, to have accepted the truth of her representations. In reaching the conclusion that he did, he relied on the fact that the company had a published policy stressing the importance of timely reporting to work and outlining the increasingly severe penalties that would accompany recurring tardiness up to termination. He concluded that an employer "does have the right to expect regular and on time attendance from its employees," and that Upchurch's persistent incidents of lateness constituted "misconduct" within the meaning of section 71-5-513A(1) (b) of the Mississippi Code. See Miss. Code Ann.

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