Painter v. Department of Employment & Training

JAMES S. GETTY, Judge. The Board of Appeals of the Department of Employment determined that Phyllis Painter, appellant herein, was terminated from her job as a cashier at a Food-A-Rama market for gross misconduct within the meaning of Maryland Annotated Code, Art. 95A, sec. 6(b). As a result, appellant was not eligible for unemployment benefits. The agency decision was affirmed by the Circuit Court for Baltimore County and appellant has appealed from that decision.

Two issues are presented for our determination, namely: 1. Was the decision by the Board of Appeals, under sec. 6(b), that appellant was discharged for gross misconduct, based upon material, competent and substantial evidence? 2. Was the decision by the Board of Appeals, under sec. 4(c), that appelland was not available for full time work, based upon material, competent and substantial evidence? Appellant’s employment had continued for a period of three years until she was injured in a car accident on May 31, 1983.

Having sustained shoulder and neck injuries in the accident, appellant went on medical leave due to her ³⁵⁸ inability to work. On August 29, 1983, appellant was released by her physician in order that she could return to work. Appellant did not notify her employer of the release until nearly three months later, the exact date of her notification being November 10, 1983. Appellant’s employer subsequently learned of the earlier release and, according to appellant, she advised her employer that she did not present the earlier release because she had become nauseous during the latter part of August and this new illness continued and she did not believe that she was able to return to her job as a cashier.

Her belief that she was pregnant, causing the nausea, was confirmed by a different physician on October 31, 1983. The second physician released appellant to return to work in November on condition that she not attempt to lift more than fifty pounds and that she not travel long distances from her home to her place of employment. Food-A-Rama terminated appellant for her failure to inform the company of her medical release" on August 29th. She was denied unemployment benefits based upon gross misconduct pursuant to Article 95A, sec. 6(b), which provides: For the purposes of this Article, the term ‘gross misconduct’ shall include conduct of an employee which is (1) a deliberate and willful disregard of standards of behavior, which his employer has a right to expect, showing a gross indifference to the employer’s interest, or (2) a series of repeated violations of employment rules proving that the. employee has regularly and wantonly disregarded his obligations.

Misconduct not falling within this definition shall not be considered gross misconduct. There is no hard and fast rule to determine what constitutes “deliberate and willful” misconduct. Employment Security Board v. LeCates, 218 Md. 202 , 145 A.2d 840 (1959). Violation of reasonable work rules have been held to be willful and intentional misconduct.

Specifically, in ³⁵⁹ Blessings v. Commonwealth, 34 Pa.Cmwlth. 345 , 383 A.2d 580 (1978), the court said: “An employer has the right to expect an employee on sick leave to return to work when cleared to do so by his physician or at least to notify the employer of his reasons for failing to do so ... a deliberate attempt by an employee to mislead his employer would clearly constitute willful misconduct.” See also Oullette v. Employment Division, 34 Or.App. 591 , 579 P.2d 301 (1978) (employee with work release to return to work remained off the job). Under the present Maryland statute a disregard of the standards of behavior an employer has the right to expect from employees constitutes gross misconduct if such conduct is both willful and deliberate. Clearly, it is in the employer’s interest to be kept informed of the health and well being of employees in order that the business may be conducted as efficiently as possible. Not unexpectedly, the evidence in this case is conflicting.

Appellant argues that under the collective bargaining agreement between the union and the employer, the employee is entitled to a maximum of six months