Submitted: December 16, 2013
Upon Consideration of Appellant's Appeal from the Unemployment Insurance Appeal Board AFFIRMED
Patricia Barber, Pro se.
James H. McMackin, Esquire, and Allyson Britton DiRocco, Esquire, Morris James, LLP, Wilmington, Delaware for Appellee.
James T. Wakley, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware for Unemployment Insurance Appeal Board.
ROBERT B. YOUNG J.
This is an appeal from a decision of the Unemployment Insurance Appeal Board ("the Board") denying unemployment benefits to former employee of Bayhealth Medical Center ("Bayhealth"), Patricia Barber ("Appellant"), in connection with the termination of her employment from Bayhealth. First, the Board committed no error of law by denying benefits to Appellant, who filed her appeal five days after the time period for filing an appeal had already expired. Second, the Board committed no error of law by not exercising its limited discretion to accept Appellant's late appeal. Therefore, the decision of the Board is AFFIRMED.
Bayhealth employed Appellant from June 27, 2003 through March 1, 2013. Before Bayhealth terminated Appellant's employment, Appellant worked as a Nutritional Care Assistant in the Food & Nutritional Services Department. On March 1, 2013, Bayhealth terminated Appellant's employment for failing to perform her duties, not following the inventory procedures, and failing to follow food safety policies by neglecting to maintain milk in the Bayhealth refrigerators in accordance with Hazard Analysis and Critical Control Points (HACCP) standards. In addition, Bayhealth terminated Appellant's employment on the basis that Appellant caused a patient, with whom she had a personal conflict, to feel threatened when Appellant entered the patient's hospital room to serve her a meal, when she was not directed to do so.
Bayhealth issued two written warnings to the Appellant for failure to comply with the established departmental procedures before the third and final written warning, in lieu of suspension, on October 10, 2012. On March 28, 2012, Bayhealth suspended Appellant for three days for failing to comply with established departmental procedures by not delivering food trays to the patients. As a result of Appellant's negligence in the performance of her assigned duties, several patients' breakfasts were delayed two hours. Bayhealth counseled Appellant that any further occurrences could result in termination. Then, Appellant failed to respond to her supervisors' pages, which caused a delay in the start of the tray line for the lunch meal service. Finally, Appellant's termination occurred on March 1, 2013, for the reasons stated above.
Appellant filed an application for unemployment benefits on March 3, 2013, which Bayhealth opposed. Bayhealth submitted the Employer Separation Information Response on March 12, 2013. On March 26, 2013, the Claims Deputy determined that Appellant was discharged for just cause in connection with her work. Appellant was, therefore, disqualified from receiving unemployment benefits pursuant to 19 Del. C. § 3314(2). The decision was mailed to Appellant on March 26, 2013. The Claims Deputy's decision became final on April 5, 2013. The decision provided, "the determination becomes final on 04/05/2013 unless a written appeal is filed. Your appeal must be received or postmarked on or before the date indicated." Appellant filed her appeal five days late, on April 10, 2013.
On April 29, 2013, the Appeals Referee conducted a hearing to determine the timeliness of the appeal. Appellant testified that she received the Claims Deputy's determination, but she had an ongoing problem with her mail being delayed, because she previously resided at another address. However, Appellant confirmed that when she filed for unemployment, she provided her new address: 1415 South Hancock Avenue. Appellant could not remember the date that she received the decision; she offered no ...