Gardiner v. Arizona Dept. of Economic Sec.

• Decision Date: 25 November 1980
• Docket Number: No. 1,CA-UB,1
• Citation: 623 P.2d 33,127 Ariz. 603
• Parties: Robert F. GARDINER dba Gardiner Electronic Co., Plaintiff-Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an agency; and Dennis E. Connolly, Defendants-Appellees. 041.
• Court: Arizona Court of Appeals

Page 33

623 P.2d 33

127 Ariz. 603

Robert F. GARDINER dba Gardiner Electronic Co., Plaintiff-Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an agency; and Dennis E. Connolly, Defendants-Appellees.

No. 1 CA-UB 041.

Court of Appeals of Arizona, Division 1, Department C.

Nov. 25, 1980.

Rehearing Denied Jan. 7, 1981.

Review Denied Jan. 27, 1981.

Berry & Martori, Ltd. by Frederick C. Berry, Jr., Phoenix, for plaintiff-appellant.

Robert K. Corbin, Arizona Atty. Gen. by David Rich, Asst. Atty. Gen., Phoenix, for defendants-appellees.

OPINION

O'CONNOR, Judge.

This appeal is from a decision of the unemployment insurance appeals board holding that the appellee, Dennis E. Connolly, was entitled to unemployment compensation benefits and was not disqualified on the basis of misconduct connected with the work. The appellee was employed by appellant for approximately twenty months as an assembler in appellant's shop. He was discharged by the appellant, his employer, Robert F. Gardiner, on July 27, 1979. The employer cited as the reasons for the discharge that Mr. Connolly was habitually late for work, that he often failed to report for work at all and would not telephone to let the employer know he would not be present, that he worked too slowly, and that he would interrupt his work by talking to fellow employees.

The appellee claimed he was discharged for taking his customary afternoon break along with the other employees.

The deputy of the Arizona Department of Economic Security determined that appellee was qualified for unemployment benefits. The employer appealed and an appeal tribunal hearing was conducted. At the hearing, the employer testified that Mr. Connolly was habitually late to work. The work day was an eight hour day, beginning at 9:00 A.M. The employer's time sheet showed that Mr. Connolly had reported to work on time only five times in the preceding three months, and was usually from one-half hour to two or more hours late. The employer also testified that Mr. Connolly sometimes did not appear for work at all, that he neglected to telephone when he was not going to be present, that he would "loaf and talk" when he should have been working, and that he was an "extremely slow worker." The employer also testified that he attempted to reprimand and discipline Mr. Connolly throughout his employment and to warn him of the consequences of a failure to improve his performance. The employer further testified that he often assigned the employee to work in the yard outside the shop, mowing the lawn and trimming the hedges, as a disciplinary measure. It was undisputed that the employee was instructed not to enter the shop or plant area for any personal reason when he was assigned to do yard work for disciplinary reasons. It was also undisputed that on the last day of work, Mr. Connolly was ten minutes late to work and was assigned to do yard work that afternoon about 3:00 P.M. as a disciplinary measure. Mr. Connolly took a break at about 3:30 P.M. and entered the shop during the break. The employer saw Mr. Connolly inside on his break and, after talking to the employee for about an hour, discharged him. The employee testified that he had never been told not to take a break when assigned to yard work, but admitted the employer had told him not to come inside. He also testified that he had "totally just lost interest in working there because it appeared that he was trying to make me quit, and I knew if I quit I could not get unemployment insurance."

The appeal tribunal found that the "approximate (sic.) reason for (the) discharge was because the (employee) took a break while assigned to yard work," and that the employer had failed to show that the employee had been told he could not take a break. The tribunal also found that although the employee's work attendance record was poor, the employer had tolerated it, and therefore the discharge was not for work-connected misconduct, citing A.C.R.R. R6-3-51385. The employer appealed to the appeals board, which approved and adopted the findings and conclusions of the appeal tribunal. This appeal followed.

A.R.S. § 23-775 provides in part that:

An individual shall be disqualified for benefits:

2. For the ten consecutive weeks immediately subsequent to first filing a valid claim after he has been discharged for wilful or negligent misconduct connected with the employment, and in addition his maximum benefit amount shall be reduced by an amount equivalent to eight times his weekly benefit amount.

A.R.S. § 23-619.01 provides in part as follows:

A. "Misconduct connected with the employment" means any act or omission by an employee which constitutes a material or substantial breach of the employee's duties or obligations pursuant to the employment or contract of employment or which adversely affects a material or substantial interest of the employer.

B. "Wilful or negligent misconduct connected with the employment" includes, but under no circumstances is limited to, the following:

1. Absence from work without either notice to the employer or good cause for failing to give notice, repeated absence from work without good cause where warnings regarding repeated absence have been received from the employer, frequent absences from work without good cause, failure to return to work following an authorized leave, vacation, sick leave or other leave of absence when such failure is without permission from the employer, or repeated failure without good cause to exercise due care for punctuality or attendance in regard to the scheduled hours of work set by the employer.

7. Violation without good cause of any rule of conduct, safety rule or other rule in any way related to the employment which is reasonably imposed and communicated by the employer or which can be reasonably implied from the type of employment. (Emphasis added.)

A.C.R.R. R6-3-51310, Rules of Procedure Before the Industrial Commission, provides in part that:

Employees need certain personal time during working hours. Temporary cessation of work for such purposes is generally not misconduct. However, failure to follow rules and procedures concerning leaving work area may be misconduct. The reasonableness of the worker's action under the specific circumstances will determine whether the act is misconduct.

A.C.R.R. R6-3-51385, Rules of Procedure Before the Industrial Commission, provides:

A. Before a disqualification for a discharge for misconduct may be applied, the worker must have committed an act(s) of misconduct connected with his work and he must have been discharged for such act(s).

B. Generally, only the employer can state authoritatively the reasons for the worker's dismissal. If the discharge does not follow the commission of misconduct in a prompt and reasonable sequence of events, the burden falls on the employer to establish the causal relationship. When an...