Kahl v. Smith Plumbing Co.

EAGLES, Judge.

Appellants assign as error the trial court’s conclusion as a matter of law that the Employment Security Commission (ESC) failed to properly apply the law to the facts. Appellants contend that the facts here show, as a matter of law, “misconduct connected with work” sufficient to disqualify Kahl from unemployment insurance benefits, pursuant to G.S. 96-14(2). We do not agree.

In its decision ESC declared that Kahl was disqualified for unemployment benefits because:

[I]f a prohibition against moonlighting is adopted and made known to the employees, an employee’s expressed intent to violate this moonlighting policy would run counter to the standards of behavior that the employer had a right to expect of the individual as an employee. In the case at hand, it is concluded that the claimant’s behavior constituted an intentional and wilful disregard of the standards of behavior that his employer had the right to expect of him and therefore constituted misconduct connected with his work.

We note that ESC’s decision here incorporates language that has been set out by this court defining “misconduct”:

[T]he term “misconduct” [in connection with one’s work] is limited to conduct evincing such wilful or wanton disregard of an employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee ... or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.

In re Collingsworth, 17 N.C. App. 340, 343-44, 194 S.E. 2d 210, 212-13 (1973).

ESC erred in its conclusion that an employee’s expressed intent to violate the moonlighting policy in the future was equivalent to intentional and willful disregard of the standards of behavior that his employer had the right to expect of him. At the time that Kahl was discharged, he had not bid on the outside jobs and thus had not exhibited conduct “evincing . . . wilful or wanton disregard of his employer’s interest.” Id. Even if Kahl had violated a work rule, he was not, as a matter of law, disqualified from unemployment benefits. “While the violation of a work rule may well justify the discharge of an employee, such a violation does not necessarily amount to misconduct for unemployment compensation purposes.” 76 Am. Jur. 2d Unemployment Compensation § 53 (1975). Here, where there was not even a violation of a work rule, an employee’s grumbling and his statement that he intended in the future to violate a work rule do not rise to the level of willful or wanton disregard of the employer’s standards such as to constitute misconduct connected with work. The trial judge was therefore correct in reversing ESC’s ruling that an intent to violate a work rule is equivalent to misconduct within the purview of G.S. 96-14(2) as a matter of law.

The trial court’s order setting aside and reversing ESC’s decision disqualifying Kahl from receiving unemployment benefits is

Affirmed.

Judges WEBB and BECTON concur.