Employment Security Commission v. Peace , 128 N.C. App. 1 ( 1997 )

Judge Greene

dissenting in part.

I disagree with the majority’s affirmance of the trial court’s determination that the State Personnel Commission improperly placed the burden of proof on the Employment Security Commission of North Carolina, and would reverse the trial court on this issue.

First, I agree with the majority’s well-reasoned explanation of why the burden of proof in a termination without just cause case is more fairly placed upon the employer. I add only that this Court has repeatedly acquiesced in the placement of the burden of proof on the employer in just cause cases. See Davis v. N. C. Dept. of Human Resources, 110 N.C. App. 730, 432 S.E.2d 132 (1993) (not addressing placement of the burden of proof on the employer); Walker v. N. C. Dept. of Human Resources, 100 N.C. App. 498, 504, 397 S.E.2d 350, 355 (1990) (affirming the trial court’s conclusion that the employer “had not met its burden of showing just cause to uphold the terminations”) (emphasis added), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991); Employment Security Comm. v. Wells, 50 N.C. App. 389, 391, 274 S.E.2d 256, 258 (1981) (“not reaching] the question of whether [the employer] failed to carry the necessary burden of proof to show just cause for petitioner’s dismissal from its employ” because case remanded on other grounds).

I disagree with the majority’s conclusion that Soles v. City of Raleigh Civil Service Comm., 345 N.C. 443, 480 S.E.2d 685 (1997), mandates placement of the burden of proof on the employee in just cause cases. Soles merely stands for the proposition that, where a pre-existing rule mandates placement of the burden of proof on the employee, such placement does not violate the employee’s due process rights. Soles, 345 N.C. at 448, 480 S.E.2d at 688. There is no pre-existing rule mandating placement of that burden on the employee in this case. Soles does not, either explicitly or implicitly, require courts to place the burden of proof on the employee in just cause cases.

Absent specific guidance from our Supreme Court or our General Assembly, I do not believe we should depart from our customary practice of placing the burden of proof on the employer in just cause cases.