Ortiz v. Armour & Co. , 100 Idaho 363 ( 1979 )

BISTLINE, Justice,

dissenting.

The decision of the Department appeals examiner should be reinstated unless the Court retreats from the rule of that line of cases¹ which classified the “misconduct” of I.C. § 72-1366{f) into at least two categories.

That the claimant was guilty of certain inelegancies of expression there can be no doubt. Equally doubtless is that the employer, notwithstanding its own rules, had the right to discharge him where, as here, there is no contention that the company’s rules were any part of an employment contract.

The facts attendant to the claimant’s discharge are well stated in the Court’s opinion, and the sole question is whether claimant, by reason of the conduct portrayed there and which cost him his job also deprived him of unemployment benefits.

This controversy needs to be decided in context, and the context is a meat-packing plant where the claimant served his employer in a capacity for which the sensitive or faint-hearted need not apply. That the claimant was given to the use of obscenities in expressing himself in the argument with his supervisor, especially after being kicked in the face by a steer, or that he was quite willing and desirous to engage in a brawl after having a finger pointed in his face, somehow is neither surprising nor shocking. In other contexts (where offensive language was used in the presence of customers or the public) this conduct would necessarily have to be viewed differently, but here, as a matter of law, I do not think it should be held that such conduct was violative of any interest of the employer, which, after all, is the test to be applied. In so stating, I confine myself to the reasons which were advanced for the discharge, eschewing from consideration the drinking of beer, improper disposal of the bottles, bouncing a horn off a carcass, and suspicion of nose-stabbing.

1 . Apparently beginning with Johns v. S. H. Kress & Co., 78 Idaho 544, 307 P.2d 217 (1957), affirmed in Wroble v. Bonners Ferry Ranger Station, 97 Idaho 900, 556 P.2d 859 (1976).