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Labor & Employment — Unemployment Benefits – Evidence – Hearsay Statement – Misconduct

Jackson v. North Carolina Department of Commerce (Lawyers Weekly No. 15-16-0744, 11 pp.) (Chris Dillon, J.) Appealed from Davidson County Superior Court (Beecher Gray, J.) N.C. App. Unpub.

Holding: At her hearing before the Employment Security Division appeals referee, petitioner could have objected to the admission of a co-worker’s written statement on the basis that she should be afforded the opportunity to confront the witness. Since petitioner failed to object to the admission of the statement at the hearing, the statement was competent evidence supporting the denial of petitioner’s claim for unemployment benefits.

We reverse the superior court’s decision, which reversed the denial of unemployment benefits.

As a certified nursing assistant working for the respondent-employer, petitioner was required to report any patient falls. Petitioner contended that her patient had merely slumped over in her wheelchair and had not fallen. However, a co-worker’s written statement indicated that petitioner had asked the co-worker to help get petitioner’s patient up off the floor.

In the absence of an objection, hearsay evidence may be considered for whatever probative value it may have. A factual determination by a fact finder can be sustained even where the only evidence offered to prove the fact is hearsay which was admitted without objection.

The appeals referee asked petitioner whether there was any objection to the co-worker’s statement being allowed into evidence. Petitioner responded, “No.” Accordingly, the referee properly considered the co-worker’s testimony offered in the form of her written statement.

Although petitioner objected to the co-worker’s statement before the Division’s Board of Review and the superior court, both of these bodies acted as reviewing courts. Therefore, the only time petitioner could have raised a hearsay argument was before the appeals referee when all the evidence was collected.

The unchallenged findings state that the employer’s policy required all residents “to be assessed by a nurse prior to being picked up from the floor after a fall,” that “an employee may be discharged immediately when his presence or conduct constitutes a significant problem or when his conduct is detrimental to the … residents,” and that “any … physical abuse to residents … will result in dismissal on the first offense….” The Board of Review’s findings support its determination that the employer met its burden of showing that petitioner was discharged from her employment for “misconduct” and was properly denied benefits pursuant to G.S. § 96-14.6.

Reversed.


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