Discharge cases are further broken down into deliberate misconduct and rule violation cases. Sometimes the distinction is not entirely clear, and a case should be developed along both theories when appropriate.

An employee who is discharged for misconduct cannot be disqualified under G.L. c. 151A, § 25(e)(2) unless the behavior amounted to deliberate misconduct in willful disregard of the employing unit's interest.   

Deliberate misconduct and willful disregard are separate elements. Each must be established, and the review examiner must make findings of fact on each element. Smith v. Director of the Div. of Employment Sec., 376 Mass. 563, 382 N.E.2d 199 (1978).

It is not enough simply to show that the employee engaged in a wrongful act; it must also be shown that he or she knew it was contrary to the employer's interest. The Supreme Judicial Court has repeatedly reaffirmed that the burden of proof as to each element in a discharge case is on the employer. Torres v. Director of the Div. of Employment Security, 387 Mass. 776, 780 n. 3, 443 N.E.2d 1297, 1330, n. 3 (1982) (discussion of employer's burden in deliberate misconduct case); Still v. Commissioner of the Dept. of Employment and Training, 423 Mass. 805, 809, 672 N.E.2d 105 (1996) ("[i]n accordance with the directives of § 74 [of G.L. c. 151A, directing that the unemployment statute shall be liberally construed in aid of its purpose, which is to lighten the burden which falls on the unemployed worker and his family], the grounds for disqualification in § 25(a)(2) are considered to be exceptions or defenses to an eligible employee's right to benefits, and the burdens of production and persuasion rest with the employer.")

Findings are required as to the claimant's state of mind at the time of the alleged misconduct to determine both whether it was "deliberate" and whether the conduct was in "willful disregard" of the employer's interest. Jones v. Director of the Div. of Employment Sec., 392 Mass. 148, 465 N.E.2d 245 (1984); Wedgewood v. Director of the Div. of Employment Sec., 25 Mass. App. Ct. 30, 514 N.E.2d 680 (1987). This point was recently restated in South Central Rehabilitative Resources, Inc. v. Commissioner of the Div. of Employment & Training, 55 Mass. App. Ct. 180, 770 N.E.2d 17 (2002).

When a discharged worker seeks unemployment benefits, the issue is not whether the employer was justified in discharging the claimant but whether the Legislature intended that benefits should be denied in the circumstances. The fact that an employer had good cause for discharge under a collective bargaining agreement or statutory scheme will not necessarily mean that the employee can be disqualified for unemployment benefits. Director of the Div. of Employment Sec. v. Mattapoisett, 1983 Mass. App. Div. 131, aff'd, 392 Mass. 858, 467 N.E.2d 1363 (1984) (holding that although teacher was discharged for disruptive, belligerent behavior under "conduct unbecoming" language of G.L. c. 71, § 42, this finding did not preclude the Division from deterining that teacher's discharge was not attributable to deliberate misconduct in wilful disregard of town's interest).