Skirvin v. Review Bd. of Indiana Employment Sec. Division

• Decision Date: 12 October 1976
• Docket Number: No. 2--1175A332,2--1175A332
• Parties: Timothy E. SKIRVIN, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION et al., Appellees.
• Court: Indiana Appellate Court

Page 425

355 N.E.2d 425

171 Ind.App. 139

Timothy E. SKIRVIN, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION et al., Appellees.

No. 2--1175A332.

Court of Appeals of Indiana, Third District.

Oct. 12, 1976.

Rehearing Denied Nov. 22, 1976.

Charles E. Waggoner, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Charles W. Vincent, Deputy Atty. Gen., Indianapolis, for appellees.

HOFFMAN, Judge.

This review comes to us from a decision of the Review Board of the Indiana Employment Security Division in favor of appellee Wake Up Oil Company, Inc. (Wake Up) affirming the decision of the liability referee that Skirvin was not entitled to benefit rights because he had been discharged from his employment with Wake Up for gross misconduct.

The operative facts are as follows:

On September 10, 1974, Skirvin was employed by Wake Up as station manager of station #--105 located in Kokomo, Indiana. He had been employed in that position for approximately one year. On such date Ralph Metcalf, a vice-president of Wake Up, dispatched Dennis Wiseman, a district supervisor, to station #--105 to investigate a late daily bank deposit. Upon arrival at the station, Wiseman and an assistant conducted an audit of station #--105, and discovered that the station receipts were 'short' $1,747.72. Wiseman immediately confronted Skirvin with the results of the audit, and Skirvin admitted that he had taken part of the missing receipts. ¹ Skirvin was the only employee at station #--105, other than senior company officials, who had access to a sum of money as large as $1,747.72. On September 11, 1974, Wiseman notified the Kokomo Police Department regarding the shortage, and an officer was dispatched to station #--105. Skirvin was taken to the Kokomo Police Department for questioning, and on or about September 11, 1974, was charged with theft in the Howard Superior Court. The charge was subsequently dismissed by that court on January 14, 1975.

The statute upon which the Board based the denial of benefits, IC 1971, 22--4--15--6 (Burns Code Ed.), reads as follows:

'Discharge for gross misconduct--'Gross misconduct' defined--Benefits held in abeyance.--Notwithstanding any other provisions of this article (22--4--1--1--22--4--38--3), no benefit rights shall accrue nor shall any benefits be payable to any individual based upon wages earned from any employer prior to the day upon which such individual was discharged for gross misconduct in connection with work. 'Gross misconduct' is defined to include but is not limited to: assault or threatened assault upon supervisors or coworkers in connection with work; dishonesty, arson, sabotage, or other offense constituting a misdemeanor or felony under the statutes of the state of Indiana and committed in connection with work: Provided, however, such dishonesty, arson, sabotage, or other offense constituting a misdemeanor or felony is admitted by such individual or has resulted in a conviction in a court of competent jurisdiction and benefits shall be held in abeyance pending the result of the legal proceedings.'

The first issue to be considered is the interpretation of the term 'admitted' as that term is used in IC 1971, 22--4--15--6, supra. Skirvin contends that 'the standard for an admission is that of a judicial admission--one made on the record, either in a criminal court with jurisdiction or in the proceedings before the Unemployment (sic) Security Division itself.'

We cannot accept appellant's argument. In construing legislation, this court must reasonably interpret the statutory language to discover the legislative intent and goal. Pryor v. State (1973), 260 Ind. 408, 296 N.E.2d 125. It cannot be presumed that the Legislature intended an absurd or illogical application of a statute. Pryor v. State, supra; Marks v. State (1942), 220 Ind. 9, 40 N.E.2d 108.

Skirvin's contention, insofar as it calls for an admission during proceedings before the Employment Security Division, presumes a hearing conducted by a referee or the full Review Board. Before a claimant or an employer would have cause to request a hearing pursuant to the appellate procedures of the Indiana Employment Security Act, IC 1971, 24--4--1--1--22--4--38--3 (Burns Code Ed.), a claim for unemployment benefits must be filed by an employee-claimant and acted upon by the Employment Security Division. Therefore, Skirvin's proposed procedure would place the employee-claimant in the curious position of filing a claim for the sole purpose of subsequently admitting dishonesty so that his claim could be denied. The illogicality of such procedure is apparent, and we do not believe the Legislature intended such an application of IC 1971, 22--4--15--6, supra.

We believe that the term 'admitted' as used in IC 1971, 22--4--15--6, supra, contemplates an unequivocal written or verbal acknowledgement by the employee that he perpetrated the act or acts alleged to constitute 'gross misconduct.' Where, as here, the employee recants his admission, the question of whether the employee actually admitted the 'gross misconduct' should be decided as a question of fact within the framework of the factfinding procedures delineated in the Indiana Employment Security Act.

The...