WILLIAM B. LEWIS, JUDGE TRIAL REFEREE.
Nicole D. Knight (claimant), of Stamford, applied for unemployment compensation benefits after her employment with L.A. Limousine, Inc. (employer) was terminated by the employer on December 27, 2002. The claimant had previously worked for this employer for almost four months as a dispatcher. The employer fired her for missing work the day before, December 26, 2002, without permission.
Pursuant to General Statutes § 31-222 et seq., an examiner for the named defendant, the administrator of the Unemployment Compensation Act (administrator), determined that the claimant had not engaged in wilful misconduct and therefore granted her application for unemployment compensation benefits. The administrator noted that the claimant had been absent from work many times and that the "absences were excessive, but the employer had not demonstrated that they were not without good cause or proper notification."
In accordance with General Statutes §§ 31-241 and 31-237j, the employer appealed the administrator's decision to the Employment Security Appeals Division, where it was referred to an appeals referee for a hearing de novo. The employer contends that the claimant's employment was terminated for wilful misconduct based on excessive absenteeism without proper notification. The appeals referee stated that the issue was whether the claimant had been discharged for wilful misconduct.
The referee made the following factual findings: (1) about a week before the claimant was discharged, the owner and principal of the employer, Charles J. Lovetri, II, notified all employees in writing that all future requests for time off required his personal approval; (2) the claimant's request for time off on CT Page 13596 December 26, 2002 had not been approved either by Lovetri or by the company's general manager; (3) during her four months of employment the claimant had been absent from work on twenty-seven occasions but had called in to Lovetri or the manager to advise them of her absence due to her own illness or that of her children; and (4) the claimant's absences from work were not accompanied by some separate act of wilful misconduct.
The appeals referee concluded in a decision dated May 23, 2003, that the claimant had not engaged in intentional wilful misconduct. The referee also concluded that the employer had not demonstrated that "the claimant was absent without good cause or proper notice for three separate occasions within eighteen months . . ." Therefore, the referee affirmed the administrator's decision granting unemployment compensation benefits to the claimant and dismissed the employer's appeal.
The employer appealed to the Employment Security Appeals Division Board of Review (board) in accordance with General Statutes § 31-249. The board reviewed the record, including a tape recording of the hearing before the appeals referee. In a decision dated October 23, 2003, the board agreed with the factual determinations and conclusions of the referee that the employer had not established that the claimant had engaged in wilful misconduct. The employer, according to the board, did not "provide specific dates of absences without good cause or proper notice." The appeals referee's decision was affirmed because of lack of proof of three absences "without good cause or proper notice during the eighteen months preceding the final absence," and the claimant was granted unemployment compensation benefits.
The most noteworthy aspect of the board's decision was not the decision itself but rather was the concurring opinion of the acting chairperson of the board, Lynne M. Knox, who expressed the feelings of this court very accurately when she wrote that she concurred in the decision only "reluctantly." She went on to criticize the claimant's "work ethic" in view of "approximately twenty-seven (27) absences in a time span of only three months." Ms. Knox also stated that the claimant "luckily prevailed in this case only because the employer has failed to meet its burden as established by law," and that: "[a]ny employer has an implicit right to expect diligent performance and attendance."
The employer, referred to hereafter as the plaintiff, appeals to this court pursuant to General Statutes § 31-249b. The board CT Page 13597 filed a return of record, and a hearing was held.
Practice Book § 22-9(a) provides, in pertinent part, that: "Such appeals are heard by the court upon the certified copy of the record filed by the board. The court does not retry the facts or hear evidence. It considers no evidence other than that certified to it by the board and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusions reached. It cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses." Subsection (b) further provides that: "Corrections by the court of the board's findings will only be made upon the refusal to find a material fact which was an admitted or undisputed fact, upon the finding of a fact in language of CT Page 13600 doubtful meaning so that its real significance may not clearly appear, or upon the finding of a material fact without evidence."
"[T]he purpose of the unemployment compensation act is to provide income for the worker earning nothing because he is out of work through no fault or act of his own . . ." (Citations omitted.) Cervantes v. Administrator, 177 Conn. 132, 138, 411 A.2d 921 (1979). "[T]he [unemployment compensation] act is remedial and, consequently should be liberally construed in favor of its beneficiaries . . . Indeed, the legislature underscored its intent by expressly mandating that the act shall be construed, interpreted and administered in such manner as to presume coverage, eligibility and nondisqualifaction in doubtful cases. General Statutes § 31-274 ©." (Citations omitted; internal quotation marks omitted.). Mattatuck Museum-Mattatuck Historical Society v. Administrator, 238 Conn. 273, 278, 679 A.2d 347 (1996).
"As to the standard of review, our Supreme Court has indicated that this court has a limited role when reviewing an unemployment compensation appeal. To the extent that an administrative appeal, pursuant to General Statutes § 31-249b, concerns findings of fact, a court is limited to a review of the record certified and filed by the board of review. The court must not retry the facts nor hear evidence . . . If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion." (Citations omitted.) United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 385-86, 551 A.2d 724 (1988).
"As a general rule, `[t]he application of statutory criteria to determine a claimant's eligibility for unemployment compensation under General Statutes §§ 31-235 and 31-236 involves mixed questions of fact and law in which the expertise of the administrative agency is highly relevant.'" United Parcel Service, Inc. v. Administrator, supra, 209 Conn. 386. Moreover, the construction placed upon a statute or regulation by the agency responsible for its enforcement and administration is entitled to great deference. Griffin Hospital v. Commission on Hospitals Health Care, 200 Conn. 489, 496, 512 A.2d 199, CT Page 13598 appeal dismissed, 479 U.S. 1023, 107 S.Ct. 781, 93 L.Ed.2d 819 (1986).
As to the legal merits of the appeal, "[our] ultimate duty is to determine, in view of all of the evidence whether the agency in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417, 828 A.2d 609 (2003). The issue is whether "the decision of the board was logically and rationally supported by the evidence." Calnan v. Administrator, 43 Conn.App. 779, 785, 686 A.2d 134 (1996).
General Statutes § 31-236(a)(2)(B) provides in pertinent part that an individual is ineligible for benefits if he or she was discharged for "wilful misconduct in the course of the individual's employment." "[I]n the case of absence from work, `wilful misconduct' means an employee must be absent without either good cause for the absence or notice to the employer which the employee could reasonably have provided under the circumstances for three separate instances within an eighteen month period." The Regulations of Connecticut State Agencies were amended on February 22, 2005, to implement the provisions of Section 2 of Public Act 04-214.
Section 31-236-26d of the Regulations of Connecticut State Agencies provides: "(a) The Administrator shall apply this section to determine eligibility in all cases in which the individual was discharged or suspended due to absence from work. (B) Definitions. (1) "Good cause for absence from work" means any compelling personal circumstance which would normally be recognized by the individual's employer as a proper excuse for absence, or which would prevent a reasonable person under the same circumstances from reporting for work. Examples of such good cause shall include, but not be limited to: personal illness or injury which prevented the individual from reporting to work; a serious isolated transportation problem over which the individual had no control; or a sudden event which required the individual to address a compelling personal responsibility or family emergency. (2) "Notice" means notification to the employer of absence from work through any reasonable method and within any reasonable timeframe prescribed by the employer. "Separate instance" means `separate instance' as defined in section 31-236(a)(16) of the Connecticut General Statutes.
(c) Elements of wilful misconduct — Absence from work. In order to establish that an individual was discharged or suspended for absence from work which constituted wilful misconduct in the course of employment under section 31-236-26 of the Regulations of Connecticut State Agencies, the Administrator shall find that all of the following elements have been met: (1) the individual had three separate instances of absence from work; (2) with respect to each instance of absence, the individual either — (A) did not have good cause for absence from work, or (B) did not provide notice of such absence to the employer which could have been reasonably provided under the circumstances; and (3) the three separate instances of absence occurred within a twelve-month period.
d) Failure to give notice. Even if the Administrator determines that the individual had good cause or absence from work, such absence shall be counted as a separate instance under this section if the individual failed to give notice of such absence when such notice could have been reasonably provided under the circumstances. CT Page 13601 (e) Compelling personal circumstances. The Administrator shall not find that an individual could have reasonably provided notice if the individual's failure to provide notice was due to compelling personal circumstances which would have prevented a reasonable person in the same circumstances from providing notice."
The decision of the board is affirmed due to the foregoing and also because of Practice Book § 22-4, which provides, in pertinent part, that if an appellant wishes the board's findings to be corrected, he or she must, within two weeks after the record is filed with the court, "file with the board a motion for the correction of the finding" accompanied by either portions of or the entire transcript considered relevant to the corrections being sought. The plaintiff in this present case did not file such a motion. "Filing a motion to correct is a prerequisite to any challenge to the board's decision. The plaintiff's failure to file a timely motion for correction pursuant to Practice Book § 22-4 precludes this court from reviewing the facts found by the court." Reeder v. Administrator, Unemployment Compensation Act, 88 Conn.App. 556, 558, 869 A.2d 1288 (2005).
Another reason for affirming the board's decision is that the plaintiff, a corporation, is attempting to appear pro se in this court. However, "[i]n Connecticut, a corporation may not appear pro se . . ." Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 34 Conn.App. 543, 546, 642 A.2d 62, cert. CT Page 13599 denied, 230 Conn. 915, 645 A.2d 1018 (1994). Accordingly, "the Appellate Court dismissed the appeal for lack of subject matter jurisdiction." Id., 551. "Having all the parties in interest before the court invokes subject matter jurisdiction, [and] we cannot adjudicate the interests of parties who are not present." Id., 551-52 n. 10. This appeal is subject to dismissal on that ground alone.
The file does reflect an appearance by an attorney for the plaintiff in 2004, but there is no indication that the attorney appeared at the March 7, 2006 hearing or filed a brief in response to the defendant's motion to dismiss. Even if an attorney was involved in this case, the plaintiff's appeal would be dismissed for failure to file a Practice Book § 22-4 motion to correct.
Finally, the court must take into account the axiom that: "[t]he Superior Court does not retry the facts or hear evidence in appeals under our unemployment compensation legislation. Rather, it acts as an appellate court to review the record certified and filed by the board of review." Finkenstein v. Administrator, 192 Conn. 104, 112, 470 A.2d 1196 (1984).
In conclusion, the court finds that the board was justified in determining that the claimant's absences from work did not constitute wilful misconduct and that she was entitled to unemployment benefits. Therefore, the named defendant's motion (#101) for judgment dated January 16, 2004, is granted and the plaintiff's appeal is dismissed.
So Ordered.