Waldemar Goral v. Administrator, Unemployment Compensation Act et al. (2011)

MEMORANDUM OF DECISION

This unemployment compensation appeal to the Superior Court is brought by the employee, Waldemar Goral, (Goral) from a December 15, 2010, decision of the employment security appeals division board of review (the board).

On May 27, 2010, the defendant administrator of the unemployment compensations act (the administrator) found Goral eligible for unemployment benefits from his employer, Bozzutos, Inc., (the employer).   The employer had discharged Goral from his employment for insubordination which rose to the level of misconduct in the course of his employment.   The administrator found that Goral was not discharged for wilful misconduct.

Upon the employer's appeal to the next level, the employment security appeals referee (the referee) reversed the administrator's decision on September 29, 2010, and sustained the employer's appeal.   The referee found that Goral had been terminated from work for deliberate misconduct which constituted wilful misconduct in the course of his employment and that these actions occurred in the context of Goral not going about his business to get work done.   Goral was ineligible from receiving unemployment compensation benefits under General Statutes § 31–236(a)(2)(B).

Goral appealed the referee's decision to the board, and on December 15, 2010, the board affirmed the referee's decision and dismissed the appeal.   Goral subsequently filed the present appeal with the court.   Goral states that the decision was incorrect, that no one stated he had done the acts complained of, and he thinks he deserved his unemployment benefits.   The administrator has filed a motion for judgment requesting the court to dismiss Goral's appeal and affirm the board's decision.

STANDARD OF REVIEW

Under General Statutes § 31–249b, the court does not undertake de novo review for unemployment compensation appeals from the Employment Security Board of Review and is bound by those facts found, and reasonable conclusions reached from them.   The court may go no further than to determine whether the decision appealed is unreasonable, arbitrary or illegal.  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417–18, 828 A.2d 609 (2003);  Burnham v. Administrator, 184 Conn. 317, 321–22, 439 A.2d 1008 (1981).

In the absence of a motion to correct the findings of the board, this court is not entitled to “retry the facts or hear evidence.   It considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether ․ there was any evidence to support in law the conclusions reached.  [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses.”  Practice Book § 22–9.

“Practice Book § 22–4 provides the mechanism for the correction of the board's findings.   If the [claimant] desires that the findings be corrected, the [claimant] must, within two weeks of the filing of the record in the Superior Court, file with the board a motion for correction of the findings.”   (Internal quotation marks omitted.)   Belica v. Administrator, Unemployment Compensation Act, 126 Coun.App. 779, 786 (2011).  “[A] [claimant's] failure to file a timely motion for correction of the board's findings in accordance with [Practice Book] § 22–4 prevents further review of those facts found by the board.”  Id.

Here the board adopted the factual findings of the referee with regard to the reasons for Goral's discharge from employment.   Since Goral did not file a motion to correct with the board within two weeks of the filing of the record with the court, as required by § 22–4, and which prevents further review of those facts, the board's findings are binding on this court.   Therefore, the court reviews the decision only to determine if the board's decision was unreasonable, arbitrary, or illegal.  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 417–18.

ANALYSIS

General Statutes § 31–236(a)(2)(B) provides that an individual is ineligible for benefits if the individual has been discharged or suspended for wilful misconduct in the course of the individual's employment.   Wilful misconduct is defined in § 31–236(a)(16) as:

․ deliberate misconduct in wilful disregard of the employer's interest, or a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not a result of the employee's incompetence and provided further, in the case of absence from work, ‘wilful misconduct’ means an employee must be absent without either good cause for the absence or notice to the employer which the employee could reasonably have provided under the circumstances for three separate instances within a twelve-month period.

Pursuant to Reg. Conn. Agencies, D.O.L., § 31–236–26a(a) (1997), deliberate misconduct requires commission of an act or omission that is not consistent with the standards of behavior which an employer, in the operation of his business, should reasonably be able to expect from an employee.   Pursuant to 31–236a(c), deliberate misconduct in wilful disregard of the employer's interest is established where the individual knew or should have known that such an act was contrary to the employer's interest or expectation and, at the time the act took place, he understood it was contrary to the employer's expectation or interest and he was not motivated or seriously influenced by circumstances of a compelling nature.   Such mitigating circumstances include events or conditions which left the individual no reasonable alternative course of action or an emergency situation where a reasonable individual in the same circumstances would commit the same act, despite knowing it was contrary to the employer's expectation or interest.   The board of review has held that an employee's disgruntled attitude is wilful misconduct if it affects the employer's interests adversely by disrupting the workplace, unsatisfactory performance or failing to fulfill the reasonable requirements of the job.

The referee and the board found the following facts.   Goral worked as a truck driver from December 1, 2007, until April 30, 2010, when he was discharged.   On April 25, 2010, as Goral was driving a trailer out of the employer's facility, he was stopped by security as a part of the standard operating procedure.   While the guard was undergoing the standard security procedures, Goral grabbed the paperwork from the guard, who in turn asked him why he did that.   Several days later, when asked how he was by a supervisor, Goral responded with profanity as well as a profane gesture.   As a result of Goral's actions, the workplace was disrupted, and there were no circumstances to justify his speech or actions.

The conduct of the employee that resulted in his termination, as found by the appeals referee and as affirmed by the board of review, constitutes wilful misconduct in the course of his employment, and, therefore, pursuant to General Statutes § 31–236(a)(2)(B), Goral is ineligible for benefits.   The court finds that the board's decision was justified in the conclusion it reached.

CONCLUSION

The appeal is dismissed.

Swienton, J.

Swienton, Cynthia K., J.