Laswell v. Industrial Commission of Missouri, Division of Employment Sec.

• Decision Date: 01 March 1976
• Docket Number: No. KCD,KCD
• Citation: 534 S.W.2d 613
• Parties: Richard H. LASWELL, Appellant, v. The INDUSTRIAL COMMISSION OF MISSOURI, DIVISION OF EMPLOYMENT SECURITY, and R. H. Macy & Company (Co.), Inc., Respondents. 27959.
• Court: Missouri Court of Appeals

Page 613

534 S.W.2d 613

Richard H. LASWELL, Appellant, v. The INDUSTRIAL COMMISSION OF MISSOURI, DIVISION OF EMPLOYMENT SECURITY, and R. H. Macy & Company (Co.), Inc., Respondents.

No. KCD 27959.

Missouri Court of Appeals, Kansas City District.

March 1, 1976.

Richard F. Halliburton, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.

Terry C. Allen, Dan J. Chatfield, Jefferson City, for respondent Div. of Emp. Security.

Charles B. Fain, Jefferson City, for Industrial Commission of Missouri.

Before TURNAGE, P.J., and WELBORN and HIGGINS, Special Judges.

ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment affirming decision of The Industrial Commission disqualifying Richard H. Laswell from waiting week credit or benefits for violation of the dress policy of his employer. R. H. Macy & Co., Inc. The dispositive question is whether the employee's violation of the employer's hair code, in the circumstances, amounted to 'misconduct connected with his work' to warrant disqualification for unemployment compensation benefits. Reversed and remanded.

R. H. Macy & Co., Inc., owns a department store in Kansas City, Missouri. Richard H. Laswell worked as a photography darkroom operator for the advertising department at the store from December 2, 1970, until May 12, 1972. The employer had a 'dress policy' which forbade men to wear beards. Although aware of the policy at the commencement of his employment, Mr. Laswell quit shaving in January, 1971, and grew a full beard, believing he would be permitted to do so because his work did not involve contact with customers. He discussed his wish with his immediate supervisor prior to permitting his beard to grow and 'she said that the regulations against beards * * * were directed for people that contacted the public and that (in) my position in the darkroom I would not be identified as an employee and therefore she saw no reason for me not to grow a beard.'

In June 1971, Mr. Laswell was given a performance review. Nothing was said about his beard, his work was acceptable, and he received a raise in wages. He continued to wear his beard without question or comment until a review April 18, 1972, when he was told by his employer's personnel manager that his beard was in violation of the employer's rule. Mr. Laswell explained that his desire to wear and to refrain from cutting his beard stemmed from his belief as a naturalist. His work performance had continued to be satisfactory. The personnel manager agreed to review the matter with the executive committee which refused to make an exception to the employer's policy. An ultimatum followed to shave or look elsewhere for a job. Mr. Laswell's last day at work was May 12, 1972, at which time he had two weeks' accrued vacation pay amounting to $260, which he ultimately received.

Richard H. Laswell made his claim for unemployment compensation benefits May 15, 1972, stating May 12, 1972, was his last day worked for R. H. Macy & Co., Inc., and that 'discharge' was the reason for separation. On June 5, 1972, a deputy in the Division of Employment Security determined that the claimant was discharged 'because he refused to shave his beard,' and that the discharge was 'not for misconduct' as to disqualify him for benefits.

The employer appealed the deputy's decision on the ground 'claimant voluntarily quit.' On July 7, 1972, the appeals tribunal found that claimant, in refusing to shave his beard, left his work and chose unemployment voluntarily without good cause, reversed the deputy's decision, and disqualified claimant for waiting week credit or benefits 'until he has earned wages after May 12, 1972, equal to ten times his weekly benefit amount' under Section 288.050.1, RSMo 1969, V.A.M.S.

Mr. Laswell then appealed to The Industrial Commission which, on November 14, 1972, determined that 'claimant was discharged for misconduct connected with his work,' and modified the decision of the appeals tribunal to disqualify claimant 'for waiting week credit or benefits for two weeks for which he claims benefits and is otherwise eligible. Claimant is ineligible for benefits from May 14, 1972, to May 27, 1972, due to the receipt of vacation pay for this period. Subject to the two weeks disqualification the claimant is eligible for waiting week credit or benefits * * *.' all under Section 288.050.2, RSMo 1969, V.A.M.S.

The circuit court affirmed the decision of The Industrial Commission of Missouri and this appeal followed. Appellant contends, among other things, that the decision of The Industrial Commission is not supported by competent and substantial evidence and is contrary to the overwhelming weight of the evidence because he was not guilty of misconduct within the meaning of Section 288.050.2, supra. He argues that irrespective of how the issue is denominated, e.g., waiver and estoppel, modification of employment contract, or unreasonableness of the rule in relation to his duties, the facts and circumstances preclude a finding of misconduct. Respondents Division of Employment Security and The Industrial Commission of Missouri contend the Commission's finding of misconduct is proper because the employee deliberately violated the employer's rule against beards; that the employer did not waive its rule or modify the employment contract and, if it did, such waiver or modification was withdrawn or ratified by subsequent reaffirmation of the rule and grant of time for the employee to comply. Respondent Macy has not briefed the appeal.

Upon this review, the court must determine whether the findings of the Commission are supported by competent and substantial evidence and authorized by law. The court may not substitute its judgment on the evidence for that of the Commission, but it is required to decide whether the Commission could reasonably have made its findings and reached its result upon consideration of all the evidence before it, and the court is authorized to set aside the decision if it is contrary to the overwhelming weight of the evidence. Section 288.210, RSMo 1969, V.A.M.S.; Mid-Continent Aerial Sprayers v. Industrial Com'n., 420 S.W.2d 354, 356(3) (Mo.App.1967).

The Commission's disqualification of Mr. Laswell was under Section 288.050.2, supra, which provides that a claimant '* * * shall be disqualified for waiting week credit or benefits for not less than one nor more than eight weeks (in this case two) for which he claims benefits and is otherwise eligible' if it is found that he 'has been suspended or discharged for misconduct connected with his work * * *.'

The purpose of the Missouri Unemployment Security Act is to provide benefits to unemployed persons, and its disqualifying provisions must be strictly construed. Citizens Bank of Shelbyville v. Industrial Com'n., 428 S.W.2d 895, 898(6) (Mo.App.1968). In the interpretation of applicable statutes, the court's duty is to determine legislative intent from the words used by applying their plain natural meaning to promote the object of the Act. Bussman Mfg. Co. v. Industrial Com'n., 335 S.W.2d 456, 459--460(1--3) (Mo.App.1960).

Determination of whether an act constitutes 'misconduct connected with his work' has been a troublesome question, and there is more to the question than a simple or deliberate violation of an employer's rule of conduct. Missouri has accepted the definition found in 76 Am.Jur.2d, Unemployment Compensation § 52, p. 945: '* * * misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for...