Before Bridges, C.j., Hinkebein, And King, JJ.
The opinion of the court was delivered by: Bridges, C.j.
DATE OF JUDGMENT: 08/16/97
TRIAL JUDGE: HON. ROBERT LEWIS GIBBS
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
TRIAL COURT DISPOSITION: CIRCUIT COURT REVERSED THE BOARD OF REVIEW AND REINSTATED APPELLEE'S UNEMPLOYMENT BENEFITS.
DISPOSITION: REVERSED - 12/18/98
¶1. Marvin L. Pennington was employed for approximately nine and one- half months as a station attendant by Fowlkes & Fowlkes in Amory. Pennington was discharged for misconduct on May 29, 1996, for failing to comply with the company policy requiring an employee to notify his supervisor if unable to report for work for three consecutive days. Pennington was absent for three consecutive days without notifying his supervisor, Phil Leach. Pennington had been warned previously about being absent from work without notification and was aware of the company policy.
¶2. Pennington filed for unemployment benefits through the Mississippi Employment Security Commission (MESC). The claims examiner disqualified Pennington "for absenteeism without proper notification" constituting misconduct pursuant to Miss. Code Ann. § 71-5-513 (Supp. 1998). On appeal, the referee found Pennington was incapable of appropriately notifying the employer of his absence and held the employer failed to meet its burden of proving misconduct by Pennington. Fowlkes & Fowlkes appealed the decision to the Board of Review. The Board opined Pennington had an obligation to notify the employer of his absence and could have done so by some means if he had made an effort to do so. Thus, Pennington's failure to notify Fowlkes & Fowlkes constituted misconduct disqualifying Pennington from receiving unemployment benefits.
¶3. Aggrieved, Pennington appealed the Board's decision to the Circuit Court of Hinds County. The circuit court reversed the decision of the Board of Review reinstating Pennington's unemployment benefits.
¶4. MESC has perfected its appeal and submitted its brief to this Court. On appeal, MESC presents the following issues:
I. Whether the Hinds County Circuit Court abused its discretion by failing to appropriately apply the standard of review and by reversing the Board of Review; and
II. Whether Fowlkes & Fowlkes met its burden of proving that Marvin L. Pennington committed disqualifying misconduct by violating ...