The employer’s department was going through a shift in management. There was a period of time when supervisors were asked to incur the duties of directors without any formal oversight. Ultimately, a director was hired and began looking at employee timecards. One individual had progressed through the disciplinary chain and was close to termination. While the department was going through transition, the claimant had incurred 10 instances of lateness after her final warning. The employer terminated the claimant without any additional counseling as the employer believed the employee had already gone through progressive discipline.
The judge and appeal board ruled in favor of the claimant who had incurred additional lateness (spanning almost three months) after the final warning. The judge stated ‘she would not necessarily know or have reason to know which of any particular incident of lateness would not be tolerated, overlooked or effectively condoned by the employer such that the claimant could know or reasonable could be charged with knowing that a next instance imminently would have jeopardized her continued employment.’
When a continued violation of a policy occurs after a final warning, it is standard operating procedure to issue an additional final warning before moving to termination. The employer would have had a stronger case had it put the claimant back on notice of a final warning during the review of the employee’s attendance record. This final warning would have explicitly stated that the next infraction would lead to the termination of employment. The employer would then have had to take immediate action upon the next lateness violation. When asked at a UI hearing why a second final warning was issued, a valid reason would have been conveyed.
Lateness and absenteeism are often noticed during departmental reviews or after several infractions have already occurred. Nobody looks to terminate employees. Many times supervisors or directors are attempting to work with employees to get them back on the right track. Progressive discipline is allowed and encouraged; though moving from final warning to termination must be seamless. The very next infraction of the same or similar action must result in termination; otherwise the claimant will be seen as not knowing that such an infraction would lead to the end of their employment.