Millen v. Caldwell, 40983

• Decision Date: 29 June 1984
• Docket Number: No. 40983,40983
• Citation: 253 Ga. 112,317 S.E.2d 818
• Parties: MILLEN v. CALDWELL et al.
• Court: Georgia Supreme Court

Page 818

317 S.E.2d 818

253 Ga. 112

MILLEN v. CALDWELL et al.

No. 40983.

Supreme Court of Georgia.

June 29, 1984.

Kenneth G. Levin, Atlanta, for Gwendolyn A. Millen.

Michael J. Bowers, Atty. Gen., Susan L. Rutherford, Asst. Atty. Gen., Atlanta, for Shirling Sam Caldwell, Com'r, et al.

MARSHALL, Presiding Justice.

In her job as a housekeeper for Holiday Inn, the appellant, Gwendolyn A. Millen, was required to wear a uniform. All but one of the three uniforms her employer had supplied her with had gotten so ragged that her supervisor would not let her wear them. Since she had no dryer at home, it became her practice to wash her one usable uniform at home and dry it in the commercial dryer that the employer maintained for drying the hotel's sheets. There was evidence, though contradicted, that her supervisor knew of this practice, had not objected to it, had even given her express permission to do it, and had even done it herself; that a number of co-workers had the same practice, although there is nothing in the record to indicate that this was with the supervisor's knowledge; and that the employer had no written or unwritten rule against this practice, and had not told the appellant, or led her to believe, that she could not continue the practice or that she might be fired for doing it.

On the day the appellant was fired, her supervisor refused her permission to use the commercial dryer, and told her that she would have to use the coin-operated hotel guest dryers. (The appellant testified before the administrative hearing officer that her supervisor used the company dryers for her personal laundry on that same day; however, this was not admitted by the supervisor.) When the appellant told her supervisor that she had no money with which to operate the coin-operated dryers, the evidence showed either that she was told that she would have to go home because she had no dry uniform in which to work, or that she went home of her own volition. (The supervisor testified before the administrative hearing officer that when the appellant explained that she could not use the guest dryers because she had no money, the supervisor offered to lend her money; however, this was denied by the appellant.) When the appellant telephoned her supervisor later in the day to ask about reporting for work the following day, she was told that she was fired.

The Board of Review of the Employment Security Agency, of the Georgia Department of Labor, denied the appellant unemployment benefits, based upon OCGA § 34-8-158(2): "failure to obey orders, rules or instructions or ... failure to discharge the duties for which ... employed." Appellee-Commissioner of Labor, Sam Caldwell, expressly based the penalty imposed solely on the appellant's having reported to work without a serviceable uniform. Superior court affirmed the Department of Labor, and the Court of Appeals denied the appellant's application for discretionary appeal. We granted the writ of certiorari. We reverse.

Held:

Georgia, like the other states of the Union, has a strong public policy favoring payment of unemployment benefits to persons unemployed through no fault of their own. OCGA § 34-8-2. The burden is on the employer urging the disqualification for benefits to show by a preponderance of evidence that the applicant for compensation comes within the exception. Dalton Brick etc. Co. v. Huiet, 102 Ga.App. 221(2), 115 S.E.2d 748 (1960); OCGA § 34-8-158(2). "Fault" means more than mere failure to perform one's work duties. Thus, an employee who does not perform her work assignment adequately because she is unable to do so (i.e., not through fault or conscious neglect) cannot be penalized under OCGA § 34-8-158(2). Smith v. Caldwell, 142 Ga.App. 130, 133(3), 235 S.E.2d 547 (1977) and cit. Accord Caldwell v. Amoco Fabrics Co., 165 Ga.App. 674, 302 S.E.2d 596 (1983) and cits.

If a fired employee may not be denied benefits because he or she was unable to comply with known work requirements, then a fortiori, benefits should not be denied to an employee who has been fired for failure to comply with unknown work requirements, or requirements which could not have been reasonably anticipated. In the latter situation, not only is the employee not at fault, but also the employer is at least somewhat at fault in the employee's firing. By simply promulgating or communicating, and uniformly enforcing, any reasonable work rule, an employer can readily avoid two untoward consequences: throwing the employee out of work, and being liable for his or her unemployment benefits. If the employee refuses to comply with a specific, equitably applied and reasonable rule, then the employer may fire him or her for misconduct and be confident that no unemployment compensation benefits under OCGA § 34-8-158(2) will be paid. If an employer nevertheless wishes to be arbitrary about such matters, Georgia law allows it nearly free rein as far as the firing is concerned, but not as far as payment of unemployment compensation benefits to the ex-employee is concerned.

Although this is a case of apparent first impression in Georgia, the courts of many other states have required that the misconduct be deliberate, willing, knowing, and that the rule has been uniformly enforced. See, e.g., Butler v. J.P. Stevens & Co., 60 N.C.App. 563, 299 S.E.2d 672, 675 (1983); Barnett v. Review Bd. of the Indiana Employment Security Div., 419 N.E.2d 249 (Ind.App.1981); Hodges v. Everett, 2 Ark.App. 125, 617 S.W.2d 29, 31 (1981); Matter of Cantrell, 44 N.C.App. 718, 263 S.E.2d 1 (1980); Eastex Packaging Co. v. Dept. of Industry, Labor & Human Relations, 89 Wis.2d 739, 279 N.W.2d 248 (1979); Barnett v. Review Bd. of the Indiana Employment Security Div., 419 N.E.2d 249 (Ind.App.1981); Smith v. Director of the Div. of Employment Security, 376 Mass. 563, 382 N.E.2d 199 (1978); Hawkins v. Dist. Unemployment Comp. Bd., 381 A.2d 619, 622 (D.C.App.1977); Wroble v. Bonners Fy. Ranger Station, 97 Idaho 900, 556 P.2d 859 (1976); Green v. Dist. of Columbia Unemployment Comp. Bd., 346 A.2d 252 (D.C.App.1975); La. Hosp. Serv. v. Bookter, 317 So.2d 282 (La.App.1975); Woodson v. Unemployment Comp. Bd. of Review, 461 Pa. 439, 336 A.2d 867 (1975); Green v. Dist. of Columbia Unemployment Comp. Bd., ...