Slater v. Employment Sec. Div. of Montana Dept. of Labor and Industry

• Decision Date: 09 February 1984
• Docket Number: No. 83-458,83-458
• Parties: William SLATER and Else Slater, d/b/a Hemingway's Restaurant and Bar, Plaintiffs and Respondents, v. EMPLOYMENT SECURITY DIVISION OF the MONTANA DEPARTMENT OF LABOR AND INDUSTRY, et al., Respondents and Appellants.
• Court: Montana Supreme Court

Page 220

676 P.2d 220

208 Mont. 166

William SLATER and Else Slater, d/b/a Hemingway's Restaurant and Bar, Plaintiffs and Respondents, v. EMPLOYMENT SECURITY DIVISION OF the MONTANA DEPARTMENT OF

LABOR AND INDUSTRY, et al., Respondents and

Appellants.

No. 83-458.

Supreme Court of Montana.

Submitted on Briefs Dec. 8, 1983.

Decided Feb. 9, 1984.

R. Scott Currey, Dept. of Labor & Industry, Helena, D. Michael Eakin, Montana Legal Services, Billings, for defendants and appellants.

Hennessey Law Office, Billings, for plaintiffs and respondents.

GULBRANDSON, Justice.

Defendant Freddee Wessell appeals from the judgment of the District Court of the Thirteenth Judicial District, Yellowstone County, disqualifying her from receipt of unemployment benefits by reason of misconduct. (The Employment Security Division ceased to exist in September, 1981 and the proper state agencies in this action are the Department and the Board of Labor Appeals. Although the Department must be deemed a party in any action involving an appeal to district court of a Board of Labor Appeals administrative decision, see Section 39-51-2410, MCA, neither the Department nor the Board took an interest or actively participated in the appeal in this case.) For the reasons stated below, we reverse the judgment of the District Court.

Freddee Wessell was employed by Hemingway's Restaurant and Bar as a cocktail waitress for approximately five months prior to the end of July, 1982. William Slater is the owner of Hemingway's and his wife, Else, works as the floor manager. During Wessell's five months on the job, the Slaters had expressed some dissatisfaction with her job performance, particularly her occasional use of foul language in the presence of customers and her alleged proclivity for drinking while on the job. She was reprimanded in May of 1982 for these indiscretions. The parties disagree over whether she received similar reprimands for like behavior between May and July.

On July 20, a slight argument ensued between Else Slater and Wessell concerning the appropriateness of punching in and out on the time clock during Wessell's workshift. Wessell apparently told two of the bartenders that she was dissatisfied with her work and intended to quit. The bartenders relayed this information to Else, who in turn brought the matter to the attention of William Slater. Notice of intent to quit normally would be relayed directly to the floor manager by an employee. Nevertheless, William and Else decided to replace Wessell and either hire a new waitress or use a current employee to cover Wessell's next scheduled shift.

Wessell returned to work her next regularly scheduled shift July 20. When she arrived, she saw that a fellow employee was already covering for her. Else was not present to discuss the matter, so Wessell went directly to the executive chef, Bill Gleason. She asked Gleason whether she had been fired. He informed her that he did not know. A brief discussion then took place, during which Wessell indicated that she really didn't care if she was scheduled for work or not. Gleason suggested that her attitude was poor. At this point, Gleason maintains that Wessell used a four-letter word. He then told her that "you should just go home then. You just figure you are done, go home." However, he never told her that she was fired. Wessell left the premises and did not return, assuming that she no longer had a job at Hemingway's.

Wessell filed for unemployment benefits in early August. William Slater responded to notice of her application, alleging that she had been terminated for misconduct. Misconduct is a sufficient ground for disqualification from receipt of benefits. Section 39-51-2303, MCA. A claims examiner for the Department of Labor and Industry determined that there was no evidence of misconduct, and approved the application. Slatter appealed the decision. A hearing was held before a Department appeals referee on September 23, 1982. The Slaters, Gleason and Wessell testified at that time concerning the allegations of misconduct. The referee concluded that Wessell had been terminated for reasons other than misconduct, and affirmed the award of benefits.

A further appeal was taken to the Board of Labor Appeals. Following a hearing, the Board affirmed the findings, conclusions and decision of the referee. The Slaters appealed the Board decision to District Court pursuant to Section 39-51-2410, MCA, arguing that the Board decision was not supported by the evidence. After reviewing the transcript of proceedings before the referee and the Board, and considering briefs submitted by the parties the District Court concluded that Wessell had been fired for misconduct, and disqualified her from receiving benefits. Wessell appeals from the District Court's judgment.

The only issue presented in this appeal is whether substantial evidence exists to support the decision of the Board awarding unemployment benefits to Wessell, such that the judgment of the District Court should be reversed. The relevant standard of review is set forth in Section 39-51-2410(5), MCA: "In any judicial...