Submitted: December 3, 2014
Upon Consideration of Appellant's Appeal from the Unemployment Insurance Appeal Board
Richard E. Berl, Jr., Esquire, Berl & Feinberg, LLP, Lewes, Delaware for Appellant.
Jeremy Hurd, Pro se.
Paige J. Schmittinger, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware for The Unemployment Insurance Appeals Board.
OPINION AND ORDER
Robert B. Young J.
Beach Babies Child Care, Inc., ("Appellant"), appeals the decision of the Unemployment Insurance Appeals Board ("the Board") finding that Jeremy Hurd ("Appellee"), was discharged without just cause; and, accordingly, is qualified to receive unemployment benefits. Following an investigation into an alleged incident involving a child in the Appellee's care, Appellee was suspended and ultimately fired for allegedly violating provisions of the employee handbook. The Department of Labor ("the Department") issued a decision disqualifying Appellee from receiving benefits, finding he had been terminated for just cause. The Appeals Referee reversed. On appeal, the Board affirmed the decision of the Referee. This Court finds that the Board's decision is deficient as to findings of fact and conclusions of law, accordingly, the decision of the Board is REMANDED in accordance with this opinion.
FACTS AND PROCEDURAL POSTURE
Since the Board, after taking additional testimony of witnesses, affirmed the Referee's determination and adopted his factual findings as those of the Board, the Court begins by restating the factual findings made by the Appeals Referee, substantially in their entirety:
[Appellee] was employed as an early Childhood teacher by [Appellant] from 2001 through November 22, 2013. The [Appellee] was employed full-time at an hourly rate of $14.25. [Appellee] was doing a counting activity during circle time on November 19, 2013. Children were called into the middle of the circle to be counted. One of the children was lying in the middle of the circle. [Appellee] asked him to move to the outside of the circle so he would not get stepped on or trip other children. When the child would not move,
[Appellee] pulled him by his legs and slid him to the outside of the circle. [Appellee] stated he wanted to move, not hurt or harm the child. The child told [Appellee] his back hurt. The next day, the child's parent reported he had a rug burn on his back. [Appellant] said the parent said the child said [Appellee] was upset when he pulled him. [Appellant] investigated and reviewed video surveillance. [Appellant] contends [Appellee] pulled the child aggressively and then pushed him down and turned his head with his hands. [Appellant] suspended [Appellee] and reported the incident to the Delaware Department of Service for Children, Youth and Their Families for investigation. [Appellant] terminated Claimant on November 25, 2013, for inappropriate abusive or neglectful behavior in violation of its handbook.
At its hearing, the Board accepted additional testimony, which it summarized as follows:
[Appellant's] representative Tom Toner was sworn and testified that the incident causing [Appellee's] termination was on video. A copy of the video was received into evidence as ...