Collins v. B & G PIE CO., INC. , 59 N.C. App. 341 ( 1982 )

296 S.E.2d 809 (1982)

In the Matter of Earl D. COLLINS, Jr., Claimant-appellant,
v.
B & G PIE COMPANY, INC., Employer-appellee, and
Employment Security Commission of North Carolina, Appellee.

No. 8121SC1394.

Court of Appeals of North Carolina.

November 2, 1982.

Legal Aid Soc. of Northwest North Carolina, Inc. by Thomas A. Harris, Winston-Salem, for claimant-appellant.

Jack E. Ruby, Winston-Salem, for employer-appellee.

C. Coleman Billingsley, Jr., Raleigh, for appellee.

WELLS, Judge.

The sole question we address is whether absence from employment in violation of a work rule due to incarceration for a willful or legally unexcused probation violation amounts to "misconduct" in the context of N.C.G.S. 96-14. We hold that it does.

G.S. 96-14, in part, provides:

An individual shall be disqualified for benefits ... if it is determined by the Commission that such individual is, at the time such claim is filed, unemployed because he was discharged for misconduct connected with his work.

In G.S. 96-2 the General Assembly set out the public policy underlying the Employment Security Law, providing guidance in interpretation of that act. That section provides, in part, that the funds collected under the act are "to be used for the benefit of persons unemployed through no fault of their own." Citing this section, the Supreme Court in In re Watson, 273 N.C. 629, 161 S.E.2d 1, 35 A.L.R.3d 1114 (1968) stated that the act is intended to provide benefits "to one who becomes involuntarily unemployed" and cannot find work "through no fault of his own."

Our Supreme Court has defined "misconduct" under the statute to be conduct showing wanton or willful disregard for the employer's interest, deliberate violation of the employer's work rules, or a wrongful intent. Intercraft Industries Corp. v. Morrison, 305 N.C. 373, 289 S.E.2d 357 (1982). While the mere violation of a work rule is not disqualifying misconduct where the evidence shows that the employee's actions were reasonable and were taken with good cause, Id., citing In re Collingsworth, 17 N.C.App. 340, 194 S.E.2d 210 (1973), deliberate violation or disregard of standards of behavior which an employer has a right to expect of his employee, or carelessness or negligence manifesting equal culpability may constitute misconduct in connection with one's employment sufficient to disqualify the employee to receive unemployment benefits. In re Collingsworth, supra., quoting with approval, Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941). Although the question before us has not been addressed by our courts, the courts of several other states have addressed it, and we find that we are in accord with the majority view. See, Annot, 58 A.L.R.3d 674, 791.

In the present case, claimant's acts which resulted in his violation of a work rule were without legal excuse. In order to activate his suspended sentence, the court had to believe that claimant was able to pay his debt but did not; a suspended sentence may not be activated for failure to comply with a term of probation unless the defendant's failure to comply is willful or without lawful excuse. See State v. Smith, 43 N.C.App. 727, 259 S.E.2d 805 (1979) and cases discussed therein. Claimant's failure to comply with the conditions of his probation caused him to become incarcerated and claimant missed work in willful disregard of his employer's work rules. Under these circumstances, claimant's resulting unemployment was not through no fault of his own.

We hold that claimant's discharge was for misconduct connected with his work, and that claimant was properly denied unemployment compensation.

The judgment of the Superior Court is

Affirmed.

VAUGHN and WEBB, JJ., concur.