If an employee tries and fails to pass a certification test
required for her job, and then applies for jobless benefits, does her failure
rise to the level of misconduct such that she should be ineligible for benefits?
A Texas court of appeals recently examined a case raising that issue.
What happened. “Charlene,”
a would-be firefighter with the Houston Fire Department (HFD), knew that the
HFD’s Code of Conduct required her to complete firefighter training. In 2004,
because of sinusitis and bronchitis, she twice failed to complete a test called
the air pack maze evolution, which required her to crawl through a building
with a blacked out mask. After the second failure, HFD’s deputy chief gave her
two options: resign and reapply later, or be terminated. Charlene refused to
resign and told him that she would rather receive unemployment benefits than
resign. She never returned to work after her meeting with the deputy chief and
the city terminated her for failure to complete the air pack maze skills
portion of fire training.
She applied for jobless benefits and was initially denied.
She appealed to an appeals tribunal within the Texas Workforce Commission
(TWC), which reversed the denial of benefits. The city of Houston appealed that
decision to the TWC as a whole, which affirmed. The city took the case to state
court, which reversed the TWC decision. Now, it was TWC’s turn to appeal.
What the court said. On appeal, the issue was whether there had been substantial evidence to support
TWC’s decision. TWC argued that Charlene was terminated because of her
inability to perform required tasks to the satisfaction of the city of Houston,
and that that inability did not rise to the level of misconduct. The court
noted that Texas court decisions support the idea that a claimant’s failure to
pass a certification test required for employment is not misconduct,
distinguishing between failures through lack of effort or deliberate conduct,
and failures after good-faith efforts to pass.
The court found substantial evidence to support TWC’s
conclusion that Charlene could not complete the physical training course
requirement due to her health issues, and that her inability to complete her
training did not constitute misconduct connected with the work. Texas
Workforce Commission v. City of Houston, Court of Appeals of Texas, First District, No. 01-07-01100-CV (10/23/08).
Point to remember: When a TWC decision is appealed to the state court system, its ruling carries a
presumption of validity, and the party seeking to set it aside has the burden
to show it was not supported by substantial evidence.