Jenkins v. Agri-Lines Corp. ( 1979 )

McFADDEN, Justice.

This appeal has previously been argued before this court and an opinion issued. Petition for rehearing was filed by respondents Agri-Lines Corporation and the Department of Employment. The petition for rehearing was granted and the original opinion is withdrawn and this opinion substituted therefor.

Claimant-appellant M. H. Jenkins was employed by Agri-Lines Corporation (hereinafter Agri-Lines) until May 6, 1976, when he was discharged for misconduct. Claimant filed a claim for unemployment benefits, which claim was denied. He pursued his appeals through the Department of Employment, and in each instance the denial of his claim was upheld. He then appealed to the Industrial Commission which, after hearing further evidence submitted by claimant and by supervisory personnel of Agri-Lines, affirmed the denial of his claim. Jenkins then appealed to this court, and we affirm the order of the Industrial Commission affirming the denial of his claim.

In summary, the Industrial Commission found that on May 5, 1976, the day before claimant was discharged, he did not report for work because of an emergency at his home requiring him to repair a broken water line which supplied water for his domestic and livestock use. The repairs were completed during the morning of May 5, but Jenkins did not report for work at any time during the whole day.

Jenkins had requested his nephew, who was also employed by Agri-Lines, to notify his foreman that Jenkins would not be at work. Previously, Jenkins had used his nephew to inform his supervisors of his absence without incident. Jenkins did not telephone his employer to tell of his absence, nor did his wife attempt to notify his employer.

Nothing was said by the nephew to the assistant foreman (the foreman apparently not being at work) until after a 10 o’clock coffee break when the assistant foreman asked about claimant. The nephew advised the assistant foreman “He’ll [Jenkins] be in later.” Nothing further was said. Supervisory personnel decided to terminate Jenkins’ employment that morning, but did not notify him of his discharge until about midday of May 6.

Based on its findings of fact the Commission concluded that Jenkins’ absence from work constituted misconduct within the meaning of I.C. § 72-1366(e), and concluded that claimant had not properly notified the company of his absence. The Industrial Commission then ordered that the claim be denied and affirmed the decision of the appeals examiner.

The principal issue presented by this appeal is whether the record sustains the findings of fact, and if so, whether there was “misconduct” within the meaning of I.C. § 72-1366(e), which at the pertinent time provided:

Personal eligibility conditions.—The personal eligibility conditions of a benefit claimant are that—

(a) . . .

(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’s review in unemployment cases on appeal from the Industrial Commission is limited to reviewing questions of law. Idaho Const., Art. 5, § 9; I.C. § 72-732. The first question of law presented is whether the findings of fact made by the Industrial Commission are supported by substantial and competent evidence. It is well settled that findings of the Industrial Commission in this type of case will not be disturbed on appeal when they are supported by substantial and competent evidence. Booth v. City of Burley, 99 Idaho 229, 580 P.2d 75 (1978); Simmons v. Department of Employment, 99 Idaho 290, 581 P.2d 336 (1978); Hutchinson v. J. R. Simplot Co., 98 Idaho 346, 563 P.2d 404 (1977).

The Industrial Commission found that although Jenkins requested his nephew to notify Jenkins’ supervisor of his intended absence, and that this method of notification would have been acceptable, nevertheless the notification received was insufficient to properly advise the employer of Jenkins’ intended absence. It is not clear whether the Industrial Commission found that the notification was insufficient because it was received late or because its content was defective. However, from a review of this record it is clear that, in either case, there is substantial and competent although conflicting, evidence supporting the finding of fact. Thus, it is the conclusion of the court that Jenkins did not properly notify his employer of his absence as required.

The next issue for consideration is whether, in the context of the facts of this case, the improper notification of Jenkins’ intended absence from work constituted such “misconduct” within the meaning of I.C. § 72-1366(e) so as to make him ineligible for unemployment compensation.

In Duran v. Employment Security Agency, 75 Idaho 94, 267 P.2d 628 (1954), a case where an employee had been discharged for irregularity in punching a time clock, leaving his place of employment during working hours, failing to previously arrange for absences or leaves, and failing to contact his employer during his absence, the court held that the record supported a finding that the claimant either was discharged for misconduct or quit voluntarily, and hence was not entitled to unemployment benefits. There this court stated, at 75 Idaho 97, 267 P.2d 630:

“Where an employee temporarily leaves his employment, and assuming that his absence is for good cause, it is his duty to advise his employer of the reason, seek a leave of absence, and keep the employer informed of his intentions and prospects of his returning. Though circumstances may vary these duties, good faith on the part of the employee must always appear. It is the duty of the employee to have regard for the interests of his employer and for his own job security, and to act as a reasonably prudent person would in keeping contact with his employer and in securing the permanence of his employment. . . ”

In Johns v. S. H. Kress & Co., 78 Idaho 544, 307 P.2d 217 (1957), claimant was discharged for refusing to work on Monday, December 26, which the Governor had declared a legal holiday. Previously the store manager had advised all store employees that they would be required to work on that day. The court held this to constitute “misconduct.”

Watts v. Employment Security Agency, 80 Idaho 529, 335 P.2d 533 (1959), involved a log scaler who left his job without giving or attempting to give his employer any notice. He was discharged and upon filing for unemployment benefits, the claim was denied. This court affirmed the Industrial Accident Board, stating:

“The evidence is such that a trier of the facts would be justified in concluding that appellant’s actions here involved were inconsistent with that type of conduct which his employer has a right to expect and therefore is sufficient to support a finding that his conduct was in deliberate disregard of his employer’s interests as found by the appeals examiner and affirmed by the Industrial Accident Board.”

80 Idaho at 534, 335 P.2d at 536.

Alder v. Mountain States Telephone & Telegraph Co., 92 Idaho 506, 446 P.2d 628 (1968), was a case where telephone operators at a local exchange engaged in a practice of omitting to make toll tickets when a party placing a long distance call happened to be another operator, contrary to company regulations. Claimants, who had engaged in this practice, admitted their participation and were dismissed. Their claims for - unemployment benefits were denied. On appeal to this court it was held that the operators had disregarded the company’s interests in participating in such a practice contrary to company rules.

Other cases which have dealt with “misconduct” are Oliver v. Creamer Heating & Appliance, 91 Idaho 312, 420 P.2d 795 (1966), involving an employee’s failure to remain on twenty-four hour call; O’Neal v. Employment Security Agency, 89 Idaho 313, 404 P.2d 600 (1965), involving an employee’s off-duty moral turpitude; Custom Meat Packing Co. v. Martin, 85 Idaho 374, 379 P.2d 664 (1963), involving an employee talking back to the employer and general sloppiness in work habits; Rasmussen v. Gem State Packing Co., 83 Idaho 198, 360 P.2d 90 (1961), involving an employee throwing material into a scrap barrel whose contents were to be put into a shredder not intended for disposal of metal. Cf. Wroble v. Bonners Ferry Ranger Station, 97 Idaho 900, 556 P.2d 859 (1976), involving a lack of deliberate violation of the spirit of an employer’s rule.

The common thread which runs through all these cases has been well expressed in Johns v. S. H. Kress & Co., supra, where this court stated:

“While the term ‘discharged for misconduct’ as used in Sec. 75-1366(f), I.C. has been variously defined, we think the term should be interpreted as meaning 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.”

78 Idaho at 548, 307 P.2d at 219.

It is the conclusion of the court that this record reflects a standard of conduct by the employee bringing it within the definition of “discharged for misconduct” as outlined in Johns v. S. H. Kress & Co., supra.

While much has been made of the fact that the decision to terminate Jenkins’ employment was made in the morning of May 5, 1975, and prior to the time he failed to report for work on that afternoon, it is the conclusion of the court that this fact becomes irrelevant when the ultimate dismissal was made the following day. Mere intention to discharge is meaningless until such time as that information and decision has been communicated to the employee.

The Court has considered the other issues presented by appellant Jenkins, but finds them to be without merit. It is thus the conclusion of the court that the order of the Industrial Commission denying claimant unemployment benefits is affirmed.

SHEPARD and BAKES, JJ., concur. DONALDSON, C. J., concurs in part, and concurs in Part II of dissent by BISTLINE, J.