David Hydock v. Department of Labor/Administrator, Unemployment Compensation (2012)

MEMORANDUM OF DECISION

The defendant, the Unemployment Compensation Act Administrator, moves to dismiss the appeal from the decision of the Employment Security Appeals Division Board of Review (Board of Review) filed by the appellant, David Hydock, under General Statutes § 31–249b.

The return of record discloses that on September 30, 2010, the employer, H & B Tool & Engineering Co., fired the appellant for certifying that he had inspected an important aircraft engine seal and that the part met the ideal requirements for use when, in fact, he never properly inspected the part which significantly deviated from measurement requirements.   The claimant sought unemployment compensation benefits, and the employer contested his eligibility for such benefits.   Pursuant to General Statutes § 31–241, the Administrator's examiner investigated the claim and determined that Hydock was not entitled to benefits.

The appellant exercised his right to appeal under General Statutes § 31–237;  and the appeals division referee reversed the denial of benefits after hearing the matter de novo.   The employer appealed from this decision to the Employment Security Appeals Division Board of Review under General Statutes § 31–249.   The Board of Review modified the referee's finding and decided the appellant was ineligible for benefits.   The appellant appeals to this court from that decision pursuant to General Statutes § 31–249b.

The sole basis for the denial of benefits in this case was that the employer terminated the appellant for wilful misconduct in the course of employment, which reason for termination disqualifies the appellant from receiving unemployment compensation benefits by virtue of General Statutes § 31–236(a)(2)(B).

Subsection 31–236(a)(16) defines “wilful misconduct” to include “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 ․” The Labor Commissioner has issued regulations further articulating the meaning of “wilful misconduct” for purposes of § 31–236(a)(2)(B).  Section 31–236–26(2) of the Regulations of Connecticut State Agencies precludes a finding of “wilful misconduct,” pertinent to the present case, unless the appellant “committed a single knowing violation of a reasonable and uniformly enforced rule or policy of [his] employer, when reasonably applied, provided such violation is not a result of the [appellant's] incompetence ․”

These regulations define “knowing violation” to mean that the appellant “knew of such rule or policy, or should have known of the rule or policy because it was effectively communicated to the [appellant],” Regs., Conn. State Agencies § 31–236–26b(a)(1).   Additionally, the appellant must have been “aware he was engaged in [the] conduct” which breached his employer's rules or policies, Reg., Conn. State Agencies § 31–236–26b(a)(3), and that the rule or policy was, in fact, violated, Regs., Conn. State Agencies § 31–236–26b(a)(2).   Finally, it must be shown that the violation was not the product of the appellant's incompetence.

In this appeal, the appellant makes no claim that his former employer's rules were unreasonable or enforced in a nonuniform way.   The essence of his appeal is that the violations of the rules were the result of forgetfulness and poor vision rather than wilful misconduct.

Section 31–249b and Practice Book § 22–9 limit the function of the superior court in unemployment compensation appeals to scrutiny of the decision of the Board of Review to assess whether the board's factual findings and conclusions are supported by the evidence before the board.   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.   The court may not retry the case and “is bound by the findings of subordinate facts and reasonable conclusions of fact.”  Latina v. Administrator, 54 Conn.App. 154, 159 (1999).

As noted above, the Administrator's regulations define a “knowing violation” to embrace circumstance where the employee knew or should have known of the rule which had been “effectively communicated” to him, Regs., Conn. State Agencies § 31–236–26b(a)(1);  and where the employee was “aware he was engaged in [the prohibited] conduct,” Regs. Conn. State Agencies § 31–236–26b(a)(3).   The evidence before the Board of Review amply supports the Board's determination that the appellant's breaches in September 2010 were a “knowing violation.”

The appellant's supervisor noticed that the appellant certified the part in a much shorter time than that task ought to have taken.   The supervisor examined the part and the appellant's certification and discovered the discrepancy.   The supervisor then examined other parts the appellant inspected and found similar mismeasurements.   The Board of Review concluded that the totality of the evidence showed the appellant was deliberately ignoring his employer's rules, creating safety hazards, and exposing his employer to significant liability and penalties by purporting to have properly inspected the engine and parts when he had not done so.   The Board of Review found that his explanations were inconsistent, evasive, and unworthy of belief.

The appeal is, therefore, dismissed.

Sferrazza, S.J.

Sferrazza, Samuel J., J.