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December 30, 2008
Failure to Complete Training: Misconduct?

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.

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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.

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