The opinion
Judge COZORT
dissenting.
I disagree with the conclusion that petitioner was discharged for substantial fault and was thus subject to disqualification of benefits for nine weeks. I base my opinion on a review of the record below which shows, without dispute, that petitioner committed no attendance infractions after his suspension, and he could not have been properly discharged for absenteeism.
The record does not contain a complete copy of the employment handbook, making effective appellate review difficult. We must rely on the Commission’s findings as to the employer’s policy. The Commission found, without exception from any party, that the employer’s policy provides for written warnings, suspension, and “any violations after suspension lead to discharge.” (Emphasis added.) This three-step process apparently did not apply to certain egregious infractions, known as “group one work rules,” which could result in immediate discharge. Excessive absenteeism, the reason given for petitioner’s discharge, is not listed in the “group one work rules.” Excessive absenteeism is listed in the “group two work rules,” which appear, from my reading of the woefully inadequate record, to be the less serious violations subject to the three-step disciplinary process: written warning, suspension, and discharge for violations occurring after suspension.
*334 As the record plainly shows, petitioner received warnings prior to 19 December 1989. He was suspended ón 19 December 1989. The company was on lay-off, through no fault of the petitioner, from 20 December 1989 through 2 January 1990. On 2 January 1990 the employer discharged petitioner, apparently for absences which occurred before 19 December 1989, but which the employer allegedly failed to “post” until some point during the lay-off. That purported discharge did not comply with the employer’s own policy which provides that discharge must be for infractions which occur after suspension. Such would, of course, be impossible here because the company was on lay-off while petitioner was suspended.
There is no doubt that petitioner had numerous absences and that they may have been sufficient to justify discharge. But the employer must follow its own rules in making that determination, and discharge in violation of its own rules should not be the basis of disqualifying petitioner from benefits.
I vote to reverse the lower court’s judgment affirming the Commission, and I respectfully dissent.