Goolsby v. Life Savers, Inc. ( 1984 )

DONALDSON, Chief Justice.

This is an appeal from the Industrial Commission which found that claimant Jack E. Goolsby’s unemployment was the result of a discharge for employment-related misconduct. The record discloses the following history of employment of the claimant with Life Savers, Inc. Claimant Goolsby was employed by Life Savers, Inc. as a sales representative from 1958 to November 13, 1981. During that entire time, claimant operated out of his Boise residence. His sales territory extended from Ontario, Oregon to Twin Falls, Idaho, and from Wells, Nevada to McCall, Idaho.

Claimant had been the subject of corrective action reports in 1978 or 1979. A corrective action is a procedure to up-grade the performance of a sales representative. Claimant again became the subject of corrective action in 1981. On March 19, 1981, claimant received a three-page memorandum, which outlined problems with his job performance. On that date, he had a discussion with his supervisor about the problems and he was given 30 days to improve his performance. Contained within the memorandum was the following statement:

“6. I expect eight hours of productive work from you ... five days a week! This must include a MINIMUM of 10 calls per day. Again, I will stress, if there is any reason you cannot work a full day during any particular work day, I require a phone call to my office with that information. If you must deviate from your planned call schedule, the same applies. If you can’t reach anyone at my office, you must make contact with the Division Office during that day with the information. The Division Office will, in turn, notify me.” See Exhibit 15.

On June 12, 1981, the claimant was again the subject of corrective action. A memorandum of June 12,1981, reiterated, among other items, the need for the claimant to work eight hours a day, five days a week and the need for the claimant to call either the District or Division Office if he was unable to work a full day during any particular day. The June memorandum noted specific days when the claimant did not work a full day. The claimant was also informed that if substantial improvements were not achieved and maintained, further steps would be taken, which would include the possibility of discharge.

On September 9, 1981, the claimant was removed from corrective action status. The document which informed the claimant of his removal from corrective action status also indicated that the claimant would be subject to termination if his performance returned to an unsatisfactory level.

On November 12th and 13th, 1981, claimant’s district manager out of Salt Lake City, and claimant’s division manager out of Denver, were in Boise. When they had made the arrangements for the trip, the division manager suggested that since the district manager was scheduled to arrive prior to him, that the district manager drive by the claimant’s house and see if he had left for work. On November 12th the district manager drove by claimant’s house at 9:45 a.m. He observed that claimant had not yet begun his daily calls. Later that same afternoon, both the district manager and the division manager drove by claimant’s house and found claimant’s car in his driveway at 4:30 p.m.

On November 13th, the division manager parked outside claimant’s home and waited to observe when claimant left for his first call. When claimant had not yet left by 10:00 a.m., the division manager went to the front door of claimant’s home and was admitted by claimant’s wife. He observed that the claimant was sitting at the dining room table, dressed for work, and working on some personal business.

The division manager asked claimant why he had not yet left for work. The claimant responded that he had been taking medication prescribed by a physician which caused him to sweat. The division manager then asked claimant to accompany him to a local restaurant. Upon arriving at the restaurant, the division manager telephoned both the district and division office to find out if the claimant had called in ill. He was told that the claimant had called the division office that morning and requested some information, but did not inform the secretary that he would be starting work late that day. The division manager then fired the claimant.

Subsequently, claimant applied for unemployment benefits through the Department of Employment and was granted such benefits on December 3, 1981. Life Savers petitioned for a re-determination which resulted in an affirmance of claimant’s entitlement to benefits. Life Savers appealed, and after a hearing on the matter, the Department of Employment’s appeals examiner concluded that claimant was not discharged for misconduct and, therefore, was entitled to unemployment benefits. Life Savers then appealed to the Industrial Commission. The matter was assigned to a referee, and after three days of hearings, the referee concluded that claimant was ineligible for unemployment benefits because he had been discharged for misconduct in connection with his employment. The Industrial Commission thereafter adopted and affirmed the referee’s findings and conclusions. Claimant then moved for reconsideration. After consideration of the arguments contained in the claimant’s motion for reconsideration, the Commission adhered to its original decision and denied the claimant's motion for reconsideration. This appeal followed.

The applicable provision of the Employment Security Law is I.C. § 72-1366(e), which states in pertinent part: “The personal eligibility conditions of a benefit claimant are that—

‘(e) His unemployment is not due to the fact that he left his employment voluntarily without good cause, or that he was discharged for misconduct in connection with his employment.’ ”

This Court has defined “discharged for misconduct” as follows: “wilful, intentional disregard of the employer’s interest; a deliberate violation of the employer’s rules; or a disregard of standards of behavior which the employer has a right to expect of his employees.” Johns v. S.H. Kress & Co., 78 Idaho 544, 548, 307 P.2d 217, 219 (1957). The test for misconduct in standard-of-behavior cases is (1) whether the employee’s conduct fell below the standard of behavior expected by the employer; and (2) whether the employer’s expectation was objectively reasonable in the particular case. Matthews v. Bucyrus-Erie Co., 101 Idaho 657, 659, 619 P.2d 1110, 1112 (1980). The determination of whether a claimant disregarded the standards of behavior which the employer has a right to expect from its employees is a factual one. Watts v. Employment Security Agency, 80 Idaho 529, 335 P.2d 533 (1959); Cornwell v. Kootenai County Sheriff, 106 Idaho 823, 683 P.2d 859 (1984). Factual findings reached by the Commission will not be overturned by this Court if they are supported by substantial and competent evidence. Corn-well v. Kootenai County Sheriff, supra at 825, 683 P.2d at 861; Parker v. St. Maries Plywood, 101 Idaho 415, 614 P.2d 955 (1980); Jenkins v. Agri-Lines Corp., 100 Idaho 549, 602 P.2d 47 (1979).

In this case, the record supports the finding that the claimant had disregarded the standard of behavior which Life Savers expected of him. The claimant had been warned that the employer had certain expectations of him, and that if he failed to meet those expectations, he would be subject to discharge. There is substantial and competent evidence to support the finding that the employer’s policies and rules were known to claimant and were objectively reasonable. The claimant’s refusal to adhere to the known employer policies was behavior which was inconsistent with the type of conduct which the employer had a right to expect. Thus, claimant’s discharge resulted from his own misconduct. Consequently, claimant is not entitled to unemployment benefits.

The decision of the Industrial Commission is affirmed.

Costs on appeal to respondent.

No attorney fees on appeal.

SHEPARD, BAKES and HUNTLEY, JJ., concur.