Misconduct MC 300

Manner of Performing Work

This section discusses principles to be applied when adjudicating issues arising when the claimant was discharged for failure to perform on the job as he or she should have performed.

A. General Rule

It is the responsibility of any person entering into a contract of hire to abide by the implied or explicit agreement that he or she will perform to the best of his or her ability. A failure to do so can justify a discharge for misconduct.

This does not mean that every employee who is discharged for unsatisfactory job performance is discharged for misconduct. Because of limited mental capacity, inexperience, or lack of coordination, for example, a conscientious employee may be unable to perform the duties of his or her employment to the satisfaction of the employer. If such a person is discharged, the discharge is not for misconduct.

When an employer discharges a claimant for "poor performance" or "unsatisfactory performance," it is necessary to get specific facts from the employer. Very often, "poor performance" means "not meeting quantity standard," "too many personal phone calls," "unreliable attendance," etc. When the specific facts are obtained, the determination of misconduct will follow the guidelines provided for the specific facts.

Title 22, Section 1256-38(a) provides:

When a claimant was discharged for failure to perform his or her work properly, the determination of misconduct will therefore depend on:

• The wilfulness of the claimant's failure to perform properly, or
• The degree of negligence, or
• Recurrence of negligence after warnings or reprimands.

In the absence of wilfulness, gross negligence, or recurrence of negligence after warnings or reprimands, the claimant's failure to perform his or her work properly would not be misconduct.

In Boynton Cab Company v. Neubeck, (Wisconsin Supreme Court, 1941), the Court stated:

Example - Mere Inefficiency:

In P-B-184, the employer hired the claimant as a production worker after the claimant indicated that he had operated drill presses, lathes, punch presses, reamers, and similar equipment. He was assigned to work a drill press and found to be unsatisfactory. He was next assigned to a lathe and was moved from that job when he incorrectly loaded a part and wrecked a fixture which required several hours to rebuild. He was, thereafter, tried on several other jobs but failed to meet the employer's standards on any of them and was discharged about three weeks after being hired. The Board found him eligible and stated:

1. Wilfulness of Action

   For the claimant's action to be wilful, it does not have to be shown that the claimant intended injury to his employer's interests. It is only necessary to show that the claimant's failure to perform his work properly was knowing, intentional, or deliberate.

   The term 'willful' has been defined by the California courts as follows:

   • To do a thing with deliberation is to do it after consideration and reflection, and if after indulging in this mental process, the act is done as a result thereof, it is willful.
   • To do a thing willfully is to do it knowingly.
   • Conscious; knowing; done with stubborn purpose but not with malice.

   Example - Action Willful:

   The claimant worked in a winery. The claimant's duties included assisting the operator of a filter pump in transferring wine to an empty vat. The claimant was engaged in this duty on the occasion leading to his discharge. He attached the end of the hose to the intake valve of the tank, as was customary, but failed to check the lower valve. As a result, 933 gallons of wine were lost. It was a company requirement, of which the claimant had been informed, that it was the primary duty of the individual attaching the hose to the intake valve to also close and cap the lower valve. The claimant's only reason for failure to check the valve was that the employees had agreed among themselves that whoever had this assignment would not be expected to check the lower valve.

   In this case the employer instructed its employees that when releasing wine into the vats, it was the duty of the individual attaching the hose to the intake valve to close and cap the lower valve. While the claimant undoubtedly did not intend to spill the wine, his actions leading to the loss of wine were willful. Since, the claimant deliberately chose to follow a different procedure, the discharge would be for misconduct.

   Contrast the above case with the following, in which the claimant's improper performance was not considered willful.

   Example - Action Not Willful:

   In Maywood Glass Co. v. Stewart (1959), the claimant was discharged because she packed defective glassware on several occasions. The employer testified that she had been warned several times she would be discharged if she persisted.

   The claimant denied such warnings were given. The claimant stated she packed bad glassware because of the rapidity in which they were working. She also had a headache. The court held her discharge was not for misconduct and stated:

   Moreover, even if the claimant had been warned, the evidence does not compel a finding that she was guilty of 'misconduct' within the meaning of the statute. Although (claimant) admitted packing defective bottles, she denied that she had intentionally done so. (Claimant) worked the 'graveyard shift' from midnight to 8 o'clock in the morning. She testified that on the night in question she was suffering from a headache and that there was a high percentage of defective glassware coming down the line. In these circumstances the trier of fact could reasonably conclude that her conduct did not constitute 'misconduct' within the meaning of the statute . . . .

2. Gross Negligence

   Negligence can be gross, ordinary, or minor. In considering the degree of negligence, the determinations interviewer should remember that different levels of responsibility invoke different levels of care and negligence which can result only in trivial loss, cannot be equated with negligence which can be foreseen to cause substantial loss of life or property.

   Regardless of willfulness, if the claimant's failure to perform properly is due to gross negligence, the resultant discharge would be for misconduct. Title 22, Section 1256-39(c) provides in part:

   To be gross negligence, the following elements must be present:

   (1) The employer's rules require the work to be performed in a certain manner, since if the employee is allowed to use his or her discretion, there is no gross negligence while operating within the limits of reasonable discretion.

   (2) The employee is aware of the employer's rules relative to how the work should be performed.

   (3) The employee knows that failure to perform the work as required could result in substantial loss to the employer.

   (4) The employee has no logical and reasonable explanation for the failure to perform the work as required."

   NOTE: Since willfulness is not essential to a finding of gross negligence, it is not necessary to show that the claimant received prior warnings or reprimands. One incident of gross negligence justifies a finding of misconduct.

   Example - Gross Negligence, Actual Loss:

   In P-B-193, the claimant was a captain for a large airline firm. He was in charge of a plane with 29 passengers and five crew members aboard. The first officer was piloting the plane as it approached Phoenix for a landing shortly after midnight. Since the first officer was acting as pilot, it became captain-pilot's responsibility to take certain orders from the first officer, even though the first officer was the claimant's subordinate.

   The plane had received a clearance from the landing tower to land. The first officer ordered the landing gear lowered and the claimant complied with the order. When another plane was authorized to land first, the plane was turned, and the claimant retracted the landing gear. Upon completing the turn, the tower gave the plane clearance to land. The first officer called for "gear down" and later for "approach flaps" and "landing flaps" which the claimant testified he executed. The wheels were not down, however. When the plane landed the propellers hit the ground, and the plane slid a considerable distance, causing extensive damage even though the passengers and crew members were not injured.

   The claimant testified he thought the gear was down. The Civil Aeronautics board investigated and found that the probable cause of the accident was the claimant's failure "to place landing gear lever in full down position" and "to make necessary checks to ascertain position of landing gear" prior to landing. The Board found the claimant ineligible, and stated:

   [T]he claimant failed to follow established operating procedures of his employer in that he failed to place the landing gear lever in full down position and failed to make necessary checks to ascertain the position of the landing gear prior to the landing of the plane at Phoenix. As the officer in charge of the plane the claimant was charged with the responsibilities of the position, and he knew, as did the employer, that any failure to properly perform his duties could result in substantial loss of life and property. Bearing in mind the responsible position held by the claimant, together with the consequences of his omission, we conclude that the claimant materially breached a duty owed the employer. . . .

   In this case, the employer actually suffered substantial loss. However, gross negligence can exist in the absence of actual substantial injury to the employer. Gross negligence can exist as long as substantial injury could result.

   Example - Gross Negligence, Potential Loss:

   The claimant’s duties, as an aircraft inspector, were to finally inspect finished aircraft immediately before each plane went to the ramp for flight testing. He was provided with an inspection sheet on which were listed numerous individual items which were checked in the course of the inspection, provided the particular part was in place and satisfactorily installed.

   On the last date he worked, it was discovered that a lock ring had been omitted from the propeller assembly of a completed airplane which had been inspected and passed by the claimant as completely and properly assembled. The claimant admitted that he failed to detect the fact that a lock ring was missing and that he nevertheless indicated on the inspection sheet that the item was properly in place. He further testified that he was careless at the time, which he attributes to the fact that he was rushed in his work because of a shortage of inspectors. Because of this incident, the claimant was discharged.

   The facts which led to the claimant's discharge far transcend mere inadvertence or incompetence. He was employed as a final inspector and invested with the responsibilities of the position, and he well knew that any omission on his part to perform the work properly could well result in substantial loss of life and property. In failing to ascertain that an important part of the aircraft assembly had not been installed, the claimant admittedly was careless; further, the undisputed facts show that he proceeded to check and sign his inspection sheet indicating that he had inspected the missing part and that it was in fact properly installed. Considering this last circumstance, and bearing in mind the responsible position held by the claimant together with the possible consequences of his act, the discharge was for misconduct. The claimant had materially breached a duty owed the employer.

   Example - Gross Negligence, Potential Harm:

   The claimant was a residential counselor, working for a residential facility for abused children who are suffering from behavior problems.

   The claimant was discharged because she failed to secure a door which gave access to an office where many confidential files of the children were kept as well as medication for the employer's patients. The files contained information which included medical reports, psychiatric reports, or the personal history of the child. The medication in the office was prescribed by psychiatrists to help control the behavioral problems experienced by the children. The medication included protected drugs.

   The claimant left the door open for a significant period of time, possibly as long as an hour. When confronted with this, the claimant had no adequate explanation. She admitted that she made a mistake. The claimant had been warned before about the possibility of discharge because of her failure to follow procedures such as the one involved in the final incident. The employer's very existence was jeopardized because of this violation. The employer was tightly regulated by government agencies and had this incident been discovered, their license could have been removed.

   The discharge was for misconduct. Although the claimant was discharged for a single act of negligence, the act involved potential serious harm to the employer as well as the employer's clients. Since the children housed by the employer suffered from serious emotional problems, access to prescribed medication and to personal files could have created a serious problem. Moreover, the employer itself could have lost the right to operate. The claimant knew of her responsibilities in this area, and had no adequate explanation for her failure to comply.

3. Recurring Acts of Ordinary Negligence

   When gross negligence is not involved, and the claimant is discharged for recurring acts of negligence after prior warning or reprimand, misconduct is established if the recurring acts of negligence evinced a substantial disregard of the employer's interests. But under what circumstances are the claimant's acts of negligence considered a substantial disregard of the employer's interests?

   Title 22, Section 1256-38(d)(1) provides:

   Repeated negligent performance after prior warning or reprimand and in substantial disregard of the employer's interests is misconduct where the employee has the ability and capacity to perform satisfactorily. Substantial disregard of the employer's interests is determined after consideration of the following criteria:

   (A) The number of negligent acts or omissions.

   (B) The span of time within which the negligence occurred.

   (C) The seriousness of each incident.

   (D) The similarity of the incidents.

   Number of Negligent Acts or Omissions

   It is neither possible nor desirable to establish arbitrary numerical limits as to how many negligent acts a claimant must commit before his or her performance is considered a substantial disregard of the employer's interests. Generally, the more negligent acts committed, the more substantial is the disregard of the employer's interests. The span of time within which the acts occurred and the similarity and seriousness of each act should also be considered.

   Span of Time Within Which the Acts Occurred

   There is again no set rule as to how short a span of time must be before acts of negligence committed therein amount to misconduct. Obviously, five acts of simple negligence spread over five years would amount to no more than isolated cases, while the same five acts occurring in five weeks could evidence a substantial disregard of the employer's interests. In general, the shorter the span of time within which negligent acts occur, the more substantial is the disregard of the employer's interests.

   Seriousness of Each Incident

   A series of even minor and inconsequential acts of negligence can constitute a substantial disregard of the employer's interests, and therefore misconduct, if the final incident was but the last in a line of such occurrences.

   Although some incidents standing alone may have been too minor and inconsequential to constitute misconduct, consideration of the entire series of incidents and of the claimant's persistent disregard of repeated warnings and instructions, establishes that the claimant deliberately disregarded standards of behavior which the employer had the right to expect of his employee.

   In general, the more serious the individual acts, the fewer the acts required to evince a substantial disregard of the employer's interest. Conversely, the less serious the individual acts, the more the acts required to support a finding of misconduct.

   Similarity of the Incidents

   The more similar are the different acts of negligence, the more they evince a substantial disregard of the employer's interest. The more dissimilar they are, the more likely they are to be caused by nadvertence.

4. Good Faith Errors in Judgment

   What if the claimant contends that his or her negligence resulted from errors in judgment?

   Title 22, Section 1256-38(f) provides:

   An individual's good faith error in judgment is not misconduct if he or she has exercised reasonable diligence and has not knowingly acted in a manner prejudicial to his or her employer.

   Thus, if the claimant is discharged for making a good faith error in judgment, the discharge would not be for misconduct.

   But what is a good faith error in judgment?

   "Good faith" means being faithful to one's duty or obligation. If an employee makes an error in judgment, but has exercised reasonable diligence and has not knowingly acted in a manner prejudicial to the employer, he or she has made a "good faith" error in judgment. On the other hand, if an employee fails to exercise reasonable diligence, he or she has not acted in good faith. If an employee knowingly acts in a manner prejudicial to his or her employer, he or she has not acted in good faith.

   Example - Good Faith Error in Judgment:

   The claimant was assigned to a job involving the cutting off of portions of flanges undergoing repair, and he was given brief instructions concerning the manner in which the work was to be performed. The claimant performed the work in accordance with his interpretation of the instructions and his understanding of the manner in which the cutting was to be made. However, he performed the work incorrectly which resulted in the destruction of a flange. The claimant was discharged because of the error.

   The discharge was not for misconduct. The claimant was given brief instructions and he performed in accordance with his understanding of the instructions. There was no evidence that he failed to exercise reasonable diligence or knowingly acted in a manner prejudicial to his employer.

B. Accident

A claimant may be discharged for having accidents, being involved in accidents, or engaging in actions which could lead to accidents.

Title 22, Section 1256-38(e) provides:

"Accident" is defined as "an event that takes place without one's foresight expectation." By definition, therefore, an accident is not an act of design or intent, and could not be a result of wilful or wanton act. Accordingly, the fact that the claimant was involved in accidents even after warnings would not establish misconduct unless gross or substantial negligence was involved or the accidents were recurrent acts of negligence.

1. Negligence or Error in Judgment

   When a claimant is discharged because of his or her involvement in an accident, the first consideration is whether the claimant is negligent. The claimant is held to be negligent if he or she could have done something, for example, compliance with traffic laws, to prevent the accident from happening.

   Example - Claimant Negligent:

   The claimant was a truck driver. He was discharged for having two accidents in one week which involved property damage.

   The first accident occurred when the claimant, while backing in to a loading dock, hit a customer's fence several times. The customer had to fix the fence that day to secure the yard. The second accident occurred when the claimant hit another truck while backing into a loading dock. The accident caused $900 in damage.

   The claimant admitted hitting the fence four times and that he was careless. As for the second accident, the claimant stated he did not have sufficient room to manipulate and turn the vehicle, causing him to hit a parked truck on his left side. He had apparently misjudged the distance.

   The employer testified that both the accidents were avoidable if the claimant had exercised care. If the claimant was not sure about the area he was backing into, he should have gotten out of the truck or sought help.

   The discharge was for misconduct. The claimant was negligent and caused the two accidents.

   On the other hand, if the accident resulted from a good faith error in judgment, there is no misconduct.

   Example - Good Faith Error in Judgment:

   In P-B-195, the claimant, a cab driver, was discharged because of a traffic accident. At the time the claimant was hired, he received a course of instructions covering the company's rules and the motor vehicle laws with which he was expected to comply. Shortly after the end of the course, the claimant was involved in a minor accident when he backed into a parked car. He was warned that he would be discharged if involved in one more accident within a year.

   Several months later, the claimant was en route to pick up a passenger. He was driving approximately 40 feet behind another car, when he was hailed by someone on the left side of the street and glanced toward the person hailing him. He heard the screech of brakes, immediately looked to the front and applied his own brakes when he saw that the traffic in front of him had stopped. He was unable to stop before colliding with the car in front of him. The collision was observed by two police officers and the claimant was cited under Section 22350 of the California Vehicle Code. The Board found the claimant eligible and stated:

   In this case, the claimant was cited under Section 22350 of the California Vehicle Code. We do not consider the fact of citation controlling in this case, but only one of the factors which we must consider in arriving at our conclusion. The quoted Section of the Vehicle Code is so phrased as to allow the driver of a vehicle to exercise judgment in the operation of such vehicle.

   Assuming that the claimant was careless as found by the traffic officers involved, his carelessness was, at most, an error of judgment. Admittedly, it was his fault that the collision occurred. However, he was following the vehicle preceding him at a reasonable distance and erred only when he withdrew his attention from the road when he was hailed by a person on the sidewalk. It appears to us that the claimant's action could readily be defined as a reflex action in response to the call, especially since it was the practice of the taxi drivers to seek to identify such a person so that the company could be informed of a possible customer.

2. Negligence or Error in Judgment

   After the claimant is determined negligent, it is necessary to determine if his or her actions were "grossly negligent or substantially negligent." Gross negligence is discussed in A. General Rule above. To determine if the claimant's actions are substantially negligent, the following factors need to be considered:

   1. Claimant's Responsibilities

      Each job has its own particular responsibilities. The degree of the claimant's responsibilities must be determined. For example, an individual who drives a delivery truck does not have as great responsibility as the individual who drives a taxicab. The latter has a greater than average responsibility of safe operation of his or her vehicle, due to the lives entrusted to his or her care. What could be an act of simple negligence for a delivery truck driver could be an act of substantial negligence for a taxicab driver.

   2. Nature of Loss

      The nature of the loss, or possible loss, is also important. Any action of an individual which could result in loss of life is much more serious than an action which could only result in loss of property.

   3. Likelihood of Action Causing an Accident

      If the claimant's action could not have resulted in an accident, or if any accident that did result was very minor, there would have to be additional circumstances present, such as prior warnings, before the claimant's action is considered misconduct.

      For example, if the claimant had repeatedly "clowned around" and engaged in horseplay in violation of safety regulations and, even after several warnings, the claimant continued to engage in such activities, the discharge would be for misconduct even though no actual accident had occurred.

   4. Manner in Which the Accident Occurred

      The manner in which the accident or accidents occurred must also be considered.

      For example, if the claimant was a driver involved in several traffic accidents and the accidents were caused by the claimant’s failure to follow the traffic laws, the discharge would be for misconduct.

3. Cost or Amount of Damage

   There is a tendency to base misconduct on the cost or damage incurred in the accident or accidents. This may be deceptive. It is true that minor and inconsequential accidents with little monetary damage will not normally support a finding of misconduct in the absence of prior warnings. However, an exceedingly costly accident may be purely accidental with no one person responsible to any measurable extent. There would be no misconduct involved. On the other hand, less costly accidents may be the result of gross negligence and can be misconduct, especially if the claimant has had prior warning for prior negligent accidents. For this reason, misconduct should not be solely determined by the cost or amount of the damage caused by the accident.

4. Number of Accidents

   In P-B-14 the Board quoted the Pennsylvania State Supreme Court in Allen v. Unemployment Compensation Board on the effect a series of accidents has on a claimant's eligibility. The Pennsylvania court stated:

   Of course a single dereliction or minor and casual acts of negligence or carelessness do not constitute wilful misconduct. But a series of accidents, attributable to negligence, occurring periodically and with consistent regularity, which produce substantial financial loss to the employer, will support the conclusion the employee has recklessly or carelessly disregarded his duties, or has been indifferent to the requirements of his occupation, and is therefore guilty of wilful misconduct.

   Thus, the number of accidents, taken alone, is not an indication of misconduct. It should be considered together with the other factors discussed above.

   Example 1 - Involved in a Number of Accidents:

   The claimant was a driver-salesman for a baking company who had been involved in five minor accidents over a period of five years. The truck that the claimant was driving had no rear-view window, was extraordinarily high and had the clutch and brake on one pedal, which made operation more difficult. The claimant testified that he had been warned that another accident would result in his discharge and that he had endeavored to the best of his ability to avoid further accidents. After a collision with another car when the claimant's truck had skidded on an oil spot on the pavement, the claimant was discharged.

   It is a generally accepted business practice that the employee is bound to protect and use with ordinary caution and care all equipment belonging to his employer and that a showing of carelessness resulting in loss to the employer would be a prima facie indication of failure on the part of the employee to fulfill the responsibilities generally expected of him.

   In this case, the record does not reveal that the employer has made a showing that the carelessness of the claimant was the cause of the accidents in which he was involved. It is also apparent that the accidents were minor in nature and damage on at least several occasions was caused in part by the style and operating features incorporated in the vehicle.

   Contrast the above case with the following.

   Example 2 - Involved in a Number of accidents:

   The claimant was an installer for a tele-communications company. He was required to drive the company vehicle in the course of his work. The vehicle was a standard half ton van. It had side mirrors and additional windows in the side doors for more visibility. The claimant had a clean driving record when he was hired.

   The claimant was involved in a series of accidents. On February 1, he hit a fence, causing the van's fender to separate from the vehicle. On March 1, the following month, he backed over a customer's lawn, which was a new lawn and was damaged. After this accident, he was spoken to and was told that he needed to show safety consciousness. The following day, on March 2, the claimant failed to secure the ladder on top of the van. It came off at a nearby intersection, damaging the van and the ladder. As a result of this accident, he was told he would be written up and that he would be discharged if he had one more accident. On March 8, he hit a customer's car when he backed out of the customer's driveway, damaging both the customer's car and the van. He was then discharged.

   The discharge was for misconduct. It is understandable that an individual whose job involves driving would have some accidents. However, the claimant had three accidents, which caused property damage to both the customer and the employer, within a few days. He had been told to be more careful. The accidents could have been avoided if he had been more careful.

5. Police and Court Actions

   Where the discharge resulted from an accident, resultant police and court actions can be a factor in the determination of misconduct. If the claimant has been tried and found not guilty, it may tend to support a finding of no misconduct but not necessarily so. The Board has stated that the term "misconduct" is not limited to criminal actions. Thus, even though the claimant is absolved of criminal liability, he or she still may have been guilty of negligence in causing the accident of such degree as to constitute misconduct. On the other hand, a finding of guilty of a violation of law usually supports a finding of misconduct, if the violation caused the accident.

C. Damage to Equipment or Materials

An accident often results in damage to equipment and materials. However, other actions of the claimant could also result in damage to equipment and materials. Under the reasoning of the Boynton case, such damage will constitute misconduct when caused by:

• Deliberate and intentional acts, or
• Gross negligence, or
• Ordinary negligence which is the last in a series of recurring negligent acts.

On the other hand, damage to equipment and materials will not be misconduct if caused by:

• Inefficiency
• Inability or incapacity
• Inadvertence
• Ordinary negligence in isolated instances
• Good faith errors in judgment or discretion

1. Damage Due to Inefficiency

   As indicated in the above, a discharge resulting from damage to the employer's equipment or materials would not be for misconduct, if the damage is caused by the claimant's inefficiency.

   Example - Inefficiency:

   In P-B-222, the claimant was a pasteurizer for a large creamery. He was discharged because of unsatisfactory performance. Prior to the date of discharge, there had been several discussions between the superintendent and the claimant in connection with the claimant's services. Although the claimant testified that his work improved after those discussions, his superintendent believed that the claimant had failed to improve sufficiently to warrant retention of the claimant's services.

   The principal complaint against the claimant appears to be a failure to pasteurize milk on occasions to proper temperature and that the claimant at times held milk in the vats an excessive time, resulting in the milk acquiring an undesirable flavor. In one instance, about three hundred gallons of milk were spoiled due to improper pasteurization, thereby resulting in a considerable financial loss to the employer. The Board found the claimant eligible and stated:

   A careful review of the entire evidence in the instant matter does not disclose, in our opinion, more than inefficiency or unsatisfactory performance on the part of the claimant which culminated in the claimant's discharge . . . the record does not establish that the claimant wilfully or intentionally disregarded the employer's interest or that the occurrences forming the basis for the discharge were deliberate violations of standard good behavior. . . .

2. Damage Due to Isolated Instance of Ordinary Negligence

   Following the definition of "misconduct" given in the Boynton case, a discharge resulting from damage to the employer's equipment or materials would not be for misconduct, if the damage is due to an isolated instance of ordinary negligence.

   Example - Isolated Instance of Ordinary Negligence:

   The claimant was hired to drive his employer's new cars from a freight depot to the company's storage warehouse. The automobiles were shipped directly from the factory and were serviced as they were unloaded. The employer testified that oral warnings had been given all employees to check oil and water levels before driving the cars and that any driver who subsequently caused damage to a car would be discharged.

   One of the automobiles the claimant was driving incurred engine damage because the car was driven with no oil in it. The claimant denied that he had been warned to check the oil and water levels before driving the vehicles. Additionally, there was dispute as to whether the oil gage was operating correctly.

   The claimant's contented that this was an "isolated" incident and that he had acted unknowingly and without evil design or intent. Because of the dispute as to the employer’s warning to check oil and water levels and the working condition of the oil gage, it cannot be shown that there was wilful negligence. The discharge would not be for misconduct.

3. Damage Due to Recurrent Negligence

   In contrast to the above two cases, a discharge resulting from damage to the employer's equipment or materials would be for misconduct, if the damage was due to recurrent negligence after warning or reprimand.

   Example - Recurrent Negligence After Warning or Reprimand:

   In P-B-188, the claimant used a cutting machine to remove excess threads from shirts. Each machine was equipped with a wide blade for use with heavy materials and a smaller blade for use with light materials. In theory, the use of the proper blade for the proper material would prevent damage to the shirts.

   Approximately four weeks prior to the claimant's discharge, because of what it considered excessive damage, the employer had instructed all employees to exercise great care in using the proper blade for the proper material. During the following four week period, the claimant repeatedly used a wide blade on light materials (which enabled her to produce more) and was repeatedly warned until she finally was discharged. During this four week period, damaged material attributable to the claimant was significantly higher than for other employees who were using proper blades. The claimant conceded that she hadn't always changed to the small blade but contended that such failure had resulted from forgetfulness.

   The Board, influenced by the recurrence of negligence and repeated warnings, found that the claimant had been discharged for misconduct.

4. Damage Due to Gross Negligence

   A discharge resulting from damage to the employer's equipment or materials would also be for misconduct, if the damage was due to the claimant's gross negligence.

   Example - Damage Resulting From Gross Negligence:

   The claimant was a power trucker for a large aircraft manufacturing concern. His job was towing parked airplanes from and to the paved field by means of a power tractor. He performed this task as many as eight times a day. A part of the work was to place the planes within the marked stalls paralleling the lanes, and the claimant, on occasion, had successfully parked planes with a clearance of only six to eight inches on each end. The claimant had had several minor accidents and had been orally warned to be more careful. On one occasion after a substantial collision he was given a written reprimand and cautioned to drive more slowly.

   On the last day of work, the claimant was towing a plane with a forty-two-foot wing span along a marked line. He had twenty-four feet of clearance on each side. In turning he cut across the corner and caused the wing tip of the towed plane to contact the rudder and wing of another plane with resulting in substantial damage to both planes. The claimant could give no explanation for the accident except to state that "I just don't know how it happened."

   The claimant failed to follow the normal procedure in towing the plane in that he cut across the stall at the head of the lane and in doing so failed to glance backward to check on the position of the plane he was towing. As a man experienced in towing planes and in parking them under exacting conditions, the claimant was charged with knowledge that any failure to properly perform his duties could result in substantial loss.

   In this case, all the four elements of gross negligence are present. The employer has established a procedure for towing and parking planes. The claimant knew about the procedures and was aware of the serious consequence which might result if he failed to perform properly. Lastly he had no reasonable explanation for his failure to perform properly.

D. Quality of Work

This subsection discusses eligibility principles involved when the claimant is discharged because he or she fails to produce work to the quality standards of the employer.

1. Inefficiency and/or Inability

   Title 22, Section 1256-38(b)(1) provides:

   Ordinarily inability or incapacity to perform the job or inefficient performance is not misconduct.

   Employers sometimes discharge claimants for doing poor work and then allege that the discharge was for misconduct. An employer has the prerogative of discharging an employee who is unable to function in the manner expected, or does not meet the standards of performance required by the employer. However, if the claimant did poor work because of inability to do better, there will be no misconduct. The inability may be the result of physical, mental, or emotional problems that are not within the control of the claimant. If a claimant, slight in stature and weighing only 140 pounds, was ordered to stack bags of concrete weighing 250 pounds each, the obvious conclusion of any reasonable person would be that the claimant was not able to do the work.

   Therefore, if the poor quality of a claimant's work is due solely to inefficiency, inability, or incapacity, it does not constitute misconduct.

   Example - Inability to Perform to Employer's Standard:

   In P-B-224, the claimant was employed for four weeks as a bookkeeper, and let go because the employer considered that her work was not "up to par." The Board found her eligible and stated:

   We find that the efficient cause of the claimant's discharge was her inability to satisfy the employer's standards in relation to the quality of her work . . . mere ineptitude is not misconduct . . .

   It sometimes happens in discharges for alleged inefficiency that the inefficiency was not the actual cause of discharge. For example, a claimant may have been relatively inefficient all the time he or she worked for the employer with no warnings or reprimands. The employer might be dissatisfied but not to the point of discharging the claimant. However, if the employer's business decreased to the point where the employer had to lay off one or more employees, the employer quite probably would discharge the claimant. Such a discharge would not be misconduct because the primary reason for the discharge was lack of work.

2. Cause of Inefficiency Within Claimant's Control

   Title 22, Section 1256-38(b)(1), also provides:

   However, misconduct exists if inability, incapacity, or inefficiency is due to one's willful failure to perform to the best of his or her abilities. Thus, if an employee's inadequate performance is the result of circumstances within his or her control and he or she does nothing to improve the performance, there is a willful failure to perform adequately which is misconduct.

   It is therefore necessary to distinguish between those cases where the claimant's assignments were beyond his or her capabilities and his or her performance was to the best of his or her ability, and those cases where the claimant knowingly and willfully failed to perform to the best of his or her ability.

   Example - Inefficiency Within Claimant's Control:

   The claimant, a precision assembler, was discharged after repeated warnings concerning his poor work. For the first three years of his employment, his work had been entirely satisfactory but then had deteriorated. He made no excuses to his employer for his poor work. However, he stated to the Department that his poor work was due to poor eyesight, which for the past six months had hampered him in doing close work. The claimant did not consult an optometrist because he was unwilling to wear corrective lenses.

   In this case the discharge would be for misconduct because the reason for his inefficiency was within his power to control.

3. Claimant Has Demonstrated Ability to Do Better

   Note that in the above case, the employee had previously demonstrated the ability to do better.

   Title 22, Section 1256-38(b)(1), further provides:

   An employee's inefficiency may be misconduct if he or she previously demonstrated the ability to do better, work performance has substantially deteriorated, and there is no reasonable explanation for the deterioration. (Emphasis added.)"

   In Agnone v. Hansen (1974), the Court held that misconduct has been established where the claimant has demonstrated an ability to properly perform the functions of his work and thereafter, despite warnings, persists in substandard work.

   Example - Previous Ability to Do Better:

   The claimant, a clerk in the international banking department of a bank, performed satisfactorily at the outset of his employment. However, his work deteriorated and became unsatisfactory in many respects including errors made which might subject the employer to large financial losses. The claimant's deficiencies had been called to his attention on several occasions although he had not been warned of impending discharge.

   In this case, the claimant had initially displayed his ability to do the work properly. The evidence does not establish that his subsequent failure to measure up to the standards established by the employer constituted mere inefficiency or inability to perform the work. Rather, the evidence shows an intentional disregard of the standard of behavior which the employer had the right to expect.

4. Simple Error or Isolated Instance

   If the claimant follows instructions and if the error in the work is the result of a good faith error in judgment, or the error stands as an isolated act of ordinary negligence, then the claimant's failure to perform properly would not be for misconduct.

   Example - Simple Error or Isolated Negligence:

   The claimant worked as a bead former in a rubber plant. The employer terminated the claimant for failure to follow instructions. The claimant stated at the determinations interview, "I made a mistake on my machine and was terminated. I had been told once before that I was making mistakes on the machine but at that time I was not performing the same operation. I was not told if I made another mistake I would be terminated."

   Although the claimant operated the machine in an incorrect manner and produced material that did not meet specifications, there is no evidence that the departure from correct procedure was willful or that it was in disobedience of specific instructions.

   Generally, an isolated negligent act or omission due to inefficiency or an error of judgment rather than an intentional disregard of the employer's interest cannot be regarded as misconduct.

5. Unable to Renew License

   An employee may be discharged because he or she is unable to renew a license or certificate required by the job. If this results from the employee's inability to pass a renewal test and is not due to any willful act on his or her part, the discharge will not be for misconduct.

   Example - Unable to Renew Certificate:

   In P-B-423, the claimant was a school bus driver. The law requires that a school bus driver must have a valid school bus driver's certificate. At the time the claimant was hired she had such a certificate, which was due to expire in nine months. She had worked as a school bus driver for a previous employer. In order to obtain a new certificate it was necessary for the claimant to pass a written test. Although she took the test three times, she was unable to pass it.

   The employer provided in-service training to facilitate its employees passing the test. The claimant had 10 hours of in-service training and attended 8.5 hours of classroom instruction. The employer's instructors observed that the claimant seemed to be preoccupied with other matters during the time she was attending classes. The claimant confided to the assistant manager that she was having emotional problems, and he suggested that she delay taking the test the third time in order to give herself a better chance of passing. She did not follow the suggestion. When she failed the test for the third time, and her present certificate expired, she was discharged.

   The employer contends that the claimant's unemployment was due to her own failure to pass the test, and that the employer should not be penalized since the employer has no control over the issuance, denial, or revocation of the school bus driver's certificate and must comply with the law. The Board disagreed and stated:

   The claimant here was unable to pass the test to renew her certificate. The record reveals no act on her part which was voluntary. She took the instruction offered by the employer and attempted to pass the test as often as she was permitted to do so. Her inability to pass shows no element of wilfulness or deliberateness on her part.

   It is true that the employer had no choice but to terminate the claimant. However, the unemployment insurance system was established to provide unemployment insurance benefits for persons unemployed through no fault of their own. (Section 100, Unemployment Insurance code.) The claimant's unemployment resulted through no fault of her own. . . .

   Note that this case does not fall within the scope of P-B-288. In that case, the claimant lost his driver's license because he drove his automobile while intoxicated. The board emphasized that the claimant voluntarily embarked on a course of conduct resulting in the loss of his license. He chose to drive while intoxicated. He was found to have constructively quit.

E. Quantity of Work

The eligibility principles discussed for quality of work also apply when the claimant was discharged because he or she failed to produce work to the quantity standards of the employer.

Title 22, Section 1256-38(b)(2) provides:

1. Incapability of Meeting the Standard

   There would be no misconduct if the claimant is incapable of meeting the standard.

   Example - Incapable of Meeting Standard:

   The claimant, a tube-bender and assembler for an aircraft manufacturer, was discharged after six years' employment because of his inability to produce an acceptable amount of work on a swaging machine. He had been assigned to this new task for only four hours when he was given a "correction interview." At this interview, he was informed that his production was 50 percent below standard and that he would be discharged unless he showed immediate improvement.

   The employer contended that the claimant had deliberately "stalled" but was unable to substantiate such a statement. The claimant had performed satisfactorily on other operations, had even been graded "excellent" in production on other tasks. When the claimant was again assigned to the swaging machine the next workday, he refused the assignment as he knew that if he did not make the quota he would be fired. He was discharged as a result.

   The claimant complied with the employer's orders when he was initially assigned to a new machine and according to the record he made every effort to become proficient in its operation. Because of his age and slight physical stature the claimant could foresee that he would not be able to operate the new machine to the satisfaction of the employer and felt justified in refusing the assignment.

   In this case the discharge would not be for misconduct. The claimant was unable to meet the employer’s standards because of his age and slight physical stature. It should also be noted that the employer did not give the claimant a sufficient amount of time to meet the standards (only four hours). Likewise, if an employer should fail to provide adequate equipment for doing the work or should set quantity standards so high that only the exceptional few could meet them, a failure to produce the required quantity of work would not be misconduct.

2. Cause of Low Production Within Claimant's Control

   On the other hand, if the claimant is capable of meeting the standard but fails to, the discharge would be for misconduct especially after being warned by the employer.

   Title 22, Section 1256-38(b)(2), for example, provides:

   An employee's failure to produce the required quantity of work is misconduct if the employee was capable of meeting, could have met, and continually failed to meet the employer's reasonable quantity standards after reprimands or warnings. If an employee's unsatisfactory quantity of work is caused by some factor within his or her control, there is a duty to do whatever is reasonably necessary to bring the quantity of work up to an acceptable level.

   Example 1- Failure to Perform Not Due to Inability:

   In P-B-223, the claimant was a salesman who had worked for one year for a wholesale outlet. He was expected to call upon old customers and develop new customers in his territory and to submit weekly reports showing the calls he had made. The employer discharged him because of his neglect in making sufficient customer calls and by filing late reports. The claimant had been reprimanded concerning his performance.

   The claimant admitted filing late reports, that at time of termination, his last three reports had all been late. He claimed that the employer had failed to supply him with certain price lists and this had caused him to lose "enthusiasm" for the work.

   The employer testified that the claimant could average eight calls per day or forty per week. In weeks previous to his discharge the claimant made 14 calls in one week, 19 in another, and 12 calls in each of three other weeks. The claimant acknowledged that many more contacts could have been made. The Board found the claimant ineligible and stated:

   The evidence in this case satisfies us that the claimant without good reason was seriously remiss in the performance of his duties as a salesman, and that his failure in this connection was intentional and in substantial disregard of the employer's interests. In none of the five weeks herein before mentioned did the claimant contact 30 customers, the minimal number which, by his own estimate, should have been contacted. A single instance of conduct of the type here involved might not constitute misconduct, but in our judgment, the claimant's continued failure to file reports and to contact customers in a number which could be reasonably expected of the average salesman, does amount to disqualifying misconduct, especially where, as here, the employer has placed the employee on notice that his performance is unsatisfactory. . . .

   Note that there was no evidence that the claimant's failure was due to inability.

   Example 2 - Failure to Perform Not Due to Inability:

   The claimant worked for about 5 months as one of two word processors employed by the employer. She was discharged for low productivity. The employer expected an average output of 35 pages of work per day from its word processors. The other processor was employed for about the same time as the claimant and had no difficulty meeting the standard throughout the period.

   The claimant was counseled and warned three times about her low productivity, which was approximately 50 percent of the standard. Immediately after each of these counseling sessions, the claimant would produce the requested 35 pages per day, and would maintain that standard for a short period of time before her productivity began to deteriorate.

   The claimant also had a tardiness problem. Moreover, at least three coworkers had complained that the claimant had, from time to time, interrupted them from their work with nonwork related matters. The claimant contends that she was working to the best of her ability and the problem was her higher standard of quality which caused her to produce considerably less than the employer's requirement.

   The discharge was for misconduct. The employer's standard was reasonable (see 3. Reasonable Standard below). The claimant had demonstrated an ability to meet the standard. By coming to work late and by interfering with coworkers with nonwork related matters during working hours, the claimant cannot contend that she was working to the best of her ability.

3. Reasonable Standard

   What if the claimant alleges that his or her failure to produce a required quantity of work is due to the employer's "speed up," i.e., continuous raising of the quota? On this issue, Title 22, Section 1256-38(b)(2) provides:

   To establish misconduct for failure to perform the required quantity of work, the employer's quantity standards must be reasonable. A standard is reasonable if the employee has, in the past, met or surpassed that quantity standard. Moreover, standards are reasonable if other employees of like age, experience, intelligence, and abilities have consistently met or surpassed the employer's quantity standard.

   The fact the employer has, on several occasions, raised the quantity standards does not alone negate misconduct. It is the employer's right to adjust the standards in a manner consistent with the best interests of the employer so long as this adjustment does not exceed the bounds of reasonableness.

F. Violation of Law

1. General

   Title 22, Section 1256-43 (c) provides:

   An employee's on-the-job criminal act or other violation of the law is misconduct if the act is substantial in nature, regardless of the employer's prior warnings or reprimands. An employee's on-the-job criminal act or other violation of law is not misconduct if the act is minor in nature, unless the employee commits the act after prior warnings or reprimands by the employer for similar acts."

   Generally, if the claimant's violation of law occurs on the employer's premises and/or during working hours when he or she is supposed to be engaged in activities for the employer and the violation is substantial, the claimant's actions will constitute misconduct. Refraining from illegal activities while engaged in work for the employer or while on the employer's premises is an obligation owed the employer. The employer would also be liable for a civil suit because of the claimant's illegal activities. Even in the absence of this liability, damage of the employer's interest due to disruption of working activities and adverse publicity, could constitute misconduct.

   Sometimes the claimant's proper performance of his or her duties will depend on the observation of certain laws. Thus, a vehicle operator must observe traffic laws; an interstate truck driver must observe the regulations of the Interstate Commerce Commission; a grocery clerk must not sell liquor to a minor; a bartender must observe the regulations of the Department of Alcoholic Beverage Control. If the observance of certain laws are requisite for the performance of the claimant's duties, the claimant, in violating those laws, will at the same time be violating standards of behavior which the employer has a right to expect.

   Example - On-the-Job Violation of Law:

   Title 22, Section 1256-43 (c) provides the following example:

   EXAMPLE 5. E, a taxicab driver was involved in a series of six accidents within a short period of time while driving cab. In addition, E repeatedly violated traffic laws by failing to make boulevard stops, by driving on the wrong side of the street, and by making prohibited mid-block "U" turns. The employer had given E a safety course and as each accident occurred discussed preventive measures. The employer gave E a disciplinary suspension following one of the accidents. Shortly after a later accident, the employer was held liable in damages and discharged E.

   E’s action was misconduct because it was clearly substantial, prejudicial to the employer’s interests, and not the result of mere inefficiency.

   What if the violation stems from the employer's express orders or tacit approval? For example, a truck driver may be ordered by the employer to load his or her truck beyond legal weight limits. Or, even if the employer does not give a direct order, it may be well known that the employer approves of and encourages overloading (which could mean more profit per run for the employer.) On this issue, Section 1256-43(c) of Title 22 provides in part:

   However, in no event will an employee's criminal act or other violation of law be misconduct if the employer had ordered, participated in, or condoned the employee's actions.

   What about warnings or reprimands? Do they have to be considered? If the violation is substantial, the discharge would be misconduct even in the absence of prior warnings or reprimands. On the other hand, if the violation is minor, there is no misconduct unless the claimant commits the act after prior warnings or reprimands for similar acts.

2. Loss of Driver's License

   An employee who drives for the employer owes a duty to his or her employer to operate the employer's vehicle within the law. If the employee violates a traffic law, which in turn leads to the suspension of his or her driver's license, the employee may be discharged. Such a discharge is considered a constructive quit if the employer has no other work available.

   In P-B-288, for example, the claimant lost his driver's license because he drove his automobile while intoxicated. The employer discharged him. At the time of discharge the claimant was willing to accept any other type of work with the employer, but the employer had no openings in which the claimant could be employed. The board held that the claimant voluntarily embarked on a course of conduct resulting in the loss of his license. He chose to drive while intoxicated. He was found to have constructively quit. Although in P-B-288, the claimant drove his automobile while intoxicated during off-duty hours, the same reasoning applies when the claimant loses his or her driver's license due to traffic violations while driving the employer's automobile and during working hours.

   What if other work than driving is available? If other work is available, but the employer still chooses to discharge the claimant because of the violations, the discharge is not considered a constructive quit, as it is not impossible for the employer to continue to use the claimant's services. Whether the discharge is for misconduct depends on whether the claimant's traffic violations evince a willful and substantial disregard of the employer's interests. If the violations result from the claimant's gross negligence, for example, the discharge will be for misconduct.

   What if the employee has not lost the driver's license, but the employer decides to discharge him or her because the employer's insurance carrier will not cover the claimant under the employer's insurance policy or will increase the employer's premiums? Such a discharge is also not considered a constructive quit, since the claimant can still lawfully drive the employer's vehicles. The discharge is considered to have resulted from a discretionary decision by the employer's insurer. Whether misconduct exists depends, as in the case of other work being available, on whether the claimant's traffic violations evince a willful and substantial disregard of the employer's interests.

   For a detailed discussion on off-the-job traffic violations, see Off the-Job Conduct, MC 350.