Vester v. Board of Review of Oklahoma Employment Sec. Com'n

• Decision Date: 19 March 1985
• Docket Number: No. 60013,60013
• Citation: 697 P.2d 533,1985 OK 21
• Parties: Carolyn VESTER, Appellant, v. The BOARD OF REVIEW OF the OKLAHOMA EMPLOYMENT SECURITY COMMISSION; Oklahoma Employment Security Commission; and The Charles Machine Works, Appellees.
• Court: Oklahoma Supreme Court

Page 533

697 P.2d 533

1985 OK 21

Carolyn VESTER, Appellant, v. The BOARD OF REVIEW OF the OKLAHOMA EMPLOYMENT SECURITY

COMMISSION; Oklahoma Employment Security

Commission; and The Charles Machine

Works, Appellees.

No. 60013.

Supreme Court of Oklahoma.

March 19, 1985.

Appeal from District Court, Noble County; Lowell Doggett, Trial judge.

Appellant challenges trial court's affirmance of administrative action denying unemployment benefits as being erroneous as a matter of law. Appellant was held to be disqualified on a finding that she had been discharged for misconduct connected with her work. Challenges are presented to the definition of misconduct used in the administrative action and to the question of whether the findings of fact supported the conclusion of misconduct.

REVERSED AND REMANDED.

Gary W. Swimley, Stillwater, for appellant.

McKinney, Stringer & Webster by Robert D. Tomlinson, Oklahoma City, for appellee, The Charles Machine Works.

LAVENDER, Justice:

Appellant, Carolyn Vester, appeals to this Court, under the provisions of 40 O.S.1981 § 2-610(3), from a judgment of the district court affirming the determination of the Board of Review of the Oklahoma Employment Security Commission that appellant had been discharged for misconduct connected with her work and was therefore disqualified for unemployment benefits by 40 O.S.1981 § 2-406.

Appellant initially filed a claim for unemployment benefits. Notice of this claim was given to appellant's last employer, appellee The Charles Machine Works, Inc. (CMW). By letter, CMW protested appellant's claim. This letter recited that appellant had been discharged due to misconduct connected with her work. The nature of the misconduct was alleged to be chronic absenteeism.

Two days after the date of CMW's protest, appellee Employment Security Commission mailed notice of determination to appellant. This notice stated that appellant was disqualified for benefits by the provisions of section 2-406.

Appellant appealed this determination and a hearing was set before a referee of the Appeal Tribunal of the Employment Security Commission. At the hearing appellant testified on her own behalf and the employment manager of CMW testified on behalf of the employer.

A copy of the Appeal Tribunal's decision was subsequently mailed to the parties. This decision contained requisite findings of fact and conclusions of law. As findings of fact the referee stated:

The employer testified the claimant was discharged because of a very unsatisfactory attendance record. During 1979 she missed 638.7 hours. She had missed 355 hours due to a job injury, and this was not counted against her. She missed 283 other hours for illness and personal reasons. In 1981 she missed 169.5 hours from January 1, 1981, through September 16, 1981. She was repeatedly counseled about her attendance problems, and the employer gave her every opportunity to correct her attendance problems. Her work was very satisfactory when she was there, but her attendance was not improving.

The claimant testified that she did have numerous absences, and has no disagreements with the attendance record as submitted by the employer. She always called the employer when it was necessary that she was absent. Her absences were caused mainly because of health factors. She did provide medical statements on many of the absences.

From these facts the referee drew the following conclusions of law:

The claimant was discharged. When an individual is discharged, it is the responsibility of the employer to establish that the individual was discharged for cause measuring to misconduct connected with the work. The term "misconduct" has been defined as an act or course of conduct detrimental to the employer's best interests or a willful failure to abide by reasonable and known rules of the employment. Decisions of this Tribunal, and the Board of Review, have consistently held that a history of numerous and repeated absences is an action measuring to misconduct connected with the work as defined. It has been held by both bodies that a history of excessive absenteeism is misconduct, even if those absences may have been for health reasons. The testimony and evidence establishes that the claimant was discharged for an excessive absenteeism rate, and she is subject to the disqualifying provisions under this section of the Act.

Appellant requested a review of the Appeal Tribunal's decision by appellee Board of Review. The Board of Review subsequently adopted the findings of fact and conclusion of law of the referee and affirmed the decision of the Appeal Tribunal.

Review of this administrative action by the district court was then initiated by appellant. The trial court, on examination of the record, held that the Board of Review had not misapplied the proper standards in the determination of misconduct and affirmed the Board's determination.

On appeal to this Court, appellant presents two challenges: first, that the referee's conclusion of law adopts an erroneous definition of misconduct; and second, that the referee's conclusion of law is not supported by the statement of facts.

I.

In reviewing the actions of appellee Board of Review, which is charged with exercising a judicial function by the provisions of 40 O.S.1981 § 2-606, the district court's determination was limited by the guidelines set forth by this Court in the case of In re White: ¹

"We have also held the district court sits as an appeal tribunal and its jurisdiction is limited to the consideration of the transcript and the argument of the respective attorneys thereon. We have also held that in an appeal, such as was perfected herein, the district court is limited to determinations whether an error of law was committed in the hearing and whether or not the findings are supported by the evidence introduced...." (Citations omitted)

The challenges presented by appellant charge that the trial court erred in its determination that the decision of the Board of Review was not contrary to law.

II.

Appellant first argues that the Board of Review's decision was erroneous as a matter of law because it adopted a definition of misconduct contrary to the Legislative intent behind the Employment Security Act of 1980. ² In section 1-103, the Legislature stated the public policy which was to guide interpretation of the Act:

As a guide to the interpretation and application of this act, the public policy of this state is declared to be as follows: Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state. Unemployment is therefore a subject of general interest and concern which requires appropriate action by the Legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this greatest hazard of our economic life. This objective can be furthered by operating free public employment offices in affiliation with nationwide system of employment services, by devising appropriate methods for reducing the volume of unemployment and by the systematic accumulation of funds during periods of employment, thus maintaining purchasing power and limiting the serious social consequences of unemployment. The Legislature, therefore, declares that in its considered judgment the public good, and the general welfare of the citizens of this state require the enactment of this measure, under the police power of the state for the establishment and maintenance of free public employment offices and for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.

In view of this policy, the Oklahoma Court of Appeals ³ adopted a definition of misconduct to be applied to the disqualifying provisions of section 2-406, designed to narrow the construction of this section and to thus allow maximum fulfillment of the Act's stated purpose. The definition adopted by the Court of Appeals is taken from the case of Boynton Cab Company v. Neubeck. ⁴ In Boynton Cab, the Supreme Court of Wisconsin, in considering the provision of a statute disqualifying prospective unemployment compensation recipients discharged for "misconduct," determined that the broad public policy favoring the allowance of benefits to cushion the societal effects of unemployment required the limitation of the term:

to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute.

Boynton Cab's imposition of the element of willful or wanton conduct, or of negligence of such a degree as to manifest equal culpability, to the conceptual determination of "misconduct" sufficient to deny unemployment benefits, has been cited with at least tacit approval by a majority of American jurisdictions. ⁵ This requirement of an element of deliberate behavior continues to play an important part in the courts' assessments of what "misconduct" is sufficient to impose the penalty of disqualification on a potential unemployment benefits recipient. ⁶

The stated purpose of unemployment compensation legislation, as set forth specifically in the Oklahoma law and as noted in most...