Flesher v. Iowa Dept. of Job Service

• Decision Date: 31 July 1985
• Docket Number: No. 84-1614,84-1614
• Citation: 372 N.W.2d 230
• Parties: Christopher W. FLESHER, Appellant, v. IOWA DEPARTMENT OF JOB SERVICE, Appellee.
• Court: Iowa Supreme Court

Page 230

372 N.W.2d 230

Christopher W. FLESHER, Appellant, v. IOWA DEPARTMENT OF JOB SERVICE, Appellee.

No. 84-1614.

Supreme Court of Iowa.

July 31, 1985.

James M. Haney, Council Bluffs, for appellant.

Walter F. Maley, Blair H. Dewey, Joseph L. Bervid, and Deborah A. Dubik, Des Moines, for appellee.

Considered by REYNOLDSON, C.J., and HARRIS, LARSON, SCHULTZ and CARTER, JJ.

SCHULTZ, Justice.

Christopher W. Flesher appeals from the district court decision affirming an agency ruling that denied unemployment compensation benefits. The agency, Iowa Department of Job Service, adopted the findings of fact and conclusions of law of a hearing officer who concluded that claimant Flesher was not entitled to benefits because of his misconduct. The hearing officer found that the employer, Long John Silver's, Inc., discharged claimant because of his repeated violations of its security policies. Specifically, claimant had not completed a "skim log" and had failed to complete a cash audit form. The "skim log" is completed by noting the denomination and serial number of the largest bill taken from the cash register when excess cash is removed and placed in a safe during a working day; its purpose is to have a record of the serial number of certain currency in the event of a robbery.

On appeal, claimant urges the district court erred: (1) because the employer did not raise the misconduct issue; and (2) in finding there was substantial evidence to support the agency finding on the issue of misconduct. We disagree and affirm.

Prior to his discharge, claimant was employed by Long John Silver's for over four years, last performing services as an assistant manager. He was aware of the company's security policy, his responsibility with regard to it, and the requirement of maintaining a "skim log." In July, October and November of 1983 claimant failed to perform the "skim log" three times. Consequently, he received warnings or reprimands from his employer. On January 7, 1984, claimant again failed to record in the "skim log" and complete the cash audit form. The employer decided to terminate claimant's employment and gave him the choice of resigning or being discharged. All parties agreed that claimant's choice to resign was a discharge for the purpose of this proceeding.

On January 19, claimant filed a claim for unemployment benefits that was initially allowed by a claims deputy. The employer appealed this determination. Following an evidentiary hearing before a hearing officer, the prior award of benefits was reversed. Claimant was found to have been overpaid in the amount of $945. The appeal board upheld the ruling of the hearing officer, and the district court affirmed this final agency action.

I. Claimant first urges that an agency rule requires the employer, rather than the department, raise the issue of misconduct. Additionally, he maintains that he was not advised of the specific allegations of misconduct prior to the telephone appeal.

The employer initially resisted the claim and appealed the award of benefits on the basis that claimant voluntarily quit his employment. In the notice of hearing on the appeal before the hearing officer, the agency specifically raised the issue of claimant's misconduct. Apparently this was prompted by claimant's application for benefits which stated:

We had to cash audit our receipts and sign for them 3 times per day. On Dec. 30 I failed to sign one of their audits. On 1-4-84 the supervisor was in working with me all day. At 4:30--after the work for the day was done--he had me sit down and at that time asked if I would want to quit--or should he fire me. This was a surprise to me. It stemmed back to my failure to sign the audit on December 30 which they considered a security violation. I had 2 previous warnings on this, but never a threat of termination before.... I do not feel that I had committed any kind of misconduct in order to have my work terminated....

(emphasis added.)

In addition claimant was notified orally that misconduct was at issue. The hearing was conducted by a telephone conference call with the employer's representative and claimant appearing as witnesses with the right to cross-examine each other. At the commencement of the hearing before evidence was taken, the hearing officer advised the parties, on the record, of the Iowa Code section that deals with discharge for misconduct. Evidence then was taken without objection. The employer's supervisor and claimant each testified concerning claimant's security violations. Claimant is in no position to allege lack of notice of the defense of misconduct. Rather, in his petition for judicial review he asserts the agency ruling was "made upon unlawful procedure in that evidence presented to the Appeals Board was clearly inadmissible and should never have been considered in its hearings." We disagree with claimant's contention.

The claimant cites 370 Iowa Admin. Code 4.32(4), a subsection of a rule entitled "Discharge for Misconduct," in support of his contention that the agency did not follow its own rules that require the employer raise the issue of misconduct. This subsection provides:

Report required. The claimant's statement and employer's statement must give detailed facts as to the specific reason for the claimant's discharge. Allegations of misconduct or dishonesty without additional evidence shall not be sufficient to result in disqualification. If the employer is unwilling to furnish available evidence to corroborate the allegation, misconduct cannot be established. In cases where a suspension or disciplinary layoff exists, the claimant is considered as discharged, and the issue of misconduct shall be resolved.

The agency rule does not support claimant's assertion that the employer must raise the issue of misconduct. Rather, the rule requires both the employee and employer provide details as to the reason for employee's discharge from employment. While the rule requires corroborating evidence of misconduct and places responsibility on the employer to provide this evidence at the risk of failure of proof, it does not require the employer affirmatively plead misconduct. Such failure to plead would not prevent proof of misconduct if the issue was otherwise before the fact finder.

We conclude that the agency may place in issue the defense of misconduct. In its declaration of policy the legislature notes that funds have been set aside "to be used for the benefit of persons unemployed through no fault of their own." Iowa Code § 96.2. Additionally, the legislature requires the agency, in its initial determination of benefits, to affirmatively investigate the claim as follows:

The representative shall promptly examine the claim and any protest, take the initiative to ascertain relevant information concerning the claim, and on the basis of facts found by the representative, shall determine whether or not the claim is valid....

Iowa Code § 96.6(2) (emphasis added). In Kehde v. Iowa Department of Job Service, ...