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McAfee v. IKO Productions

Superior Court of Delaware

January 14, 2020

MARK MCAFEE, Appellant,
v.
IKO PRODUCTIONS and UNEMPLOYMENT INSURANCE APPEAL BOARD, Appellees.

          Submitted: December 4, 2019

          On Appeal from the Unemployment Insurance Appeal Board

          ORDER

          Honorable Andrea L. Rocanelli, Judge.

         This is an appeal from the Unemployment Insurance Appeal Board ("Board"). Upon consideration of the facts, arguments, and legal authorities set forth by the parties; statutory and decisional law; and the entire record in this case, the Court hereby finds as follows:

1. Appellant Mark McAfee ("Employee") was employed by IKO Productions, Inc. ("Employer") from January 2014 until his termination on March 5, 2019.
2. Employer maintains a Violence-Free Workplace policy ("Policy") which provides, "Any individual found to have perpetrated or threatened Violence are, without limitation, subject to remedial, disciplinary and/or legal action (e.g. involving local police) up to and including dismissal for cause, and expulsion from Company property."[1] Employee acknowledged receipt of the Policy in January 2014.
3. On February 15, 2019, Employee was involved in a physical fight with another employee which led to a response by police and Employee's arrest. As a result of the fight, Employer placed Employee on suspension and began an investigation of the incident. Employer ultimately found that Employee physically assaulted another employee at work in violation of the Policy.
4. Employer terminated Employee on March 5, 2019 for violating the Policy.
5. Following Employee's termination, Employee filed a claim for unemployment benefits with the Division of Unemployment Insurance. By decision dated April 2, 2019, a Claims Deputy found that Employee was terminated for just cause and thus disqualified from receiving benefits pursuant to 19 Del. C. § 3314(2) ("Section 3314(2)").
6. Employee appealed the Claims Deputy's decision to an Appeals Referee. The Appeals Referee held a hearing at which a representative of Employer ("Representative") and Employee testified. During the hearing, the Appeals Referee admitted into evidence reports prepared by Representative describing various conversations between Representative and others with relevant information, including Employee, the other employee involved in the fight, an employee who observed Employee and the other employee involved in the fight talking on the day of the fight, and Employee's union representative. The Appeals Referee also admitted into evidence Employee's signed acknowledgment of the Policy; however, Employer did not provide a copy of the Policy to the Appeals Referee.
7. On April 23, 2019, the Appeals Referee reversed the Claims Deputy's decision and found Employee to be "not disqualified" from receiving benefits pursuant to Section 3314(2). The Appeals Referee concluded that while Employee's involvement in the fight constituted misconduct, Employer did not carry its burden of proving that Employee was discharged for just cause. Specifically, the Appeals Referee concluded that Employer did not provide sufficient evidence that Employee was the initial aggressor in the fight.
8. Employer appealed the Appeals Referee's decision to the Board, and the Board held a hearing on May 22, 2019. During the hearing, Representative testified and presented evidence that had not been presented to the Appeals Referee, including a copy of the Policy and a copy of the police report related to the fight.[2]Employee did not appear at the Board's hearing.
9. By decision dated July 9, 2019, the Board reversed the Appeals Referee's decision and declared Employee disqualified from receiving unemployment benefits ("Board Decision"). The Board found that Employer presented sufficient evidence to show just cause for Employee's immediate termination. Specifically, the Board found that Employee's "violent attack" of another employee violated Employer's Policy and that ...

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