11. Was the Discharge for Disqualifying Reasons?

Discharge cases are further broken down into “deliberate misconduct” and “rule violation” cases. In some cases both theories may be applicable and arguments 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. The employer must establish each element, and the review examiner must make findings of fact on each. Smith v. Dir. of the Div. of Emp't Sec., 376 Mass. 563, 382 N.E.2d 199 (1978). It is not enough simply to show that employees engaged in a wrongful act; employers must also show that claimants knew it was contrary to their employer’s interest.

The SJC has repeatedly reaffirmed that the burden of production and persuasion as to each element in a discharge case is on the employer. Torres v. Dir. of the Div. of Emp't Sec., 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. Comm'r of the Dep’t of Emp't & 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 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.”).

The burden of production and persuasion is not met where the employer fails to attend a hearing. Review examiners should not assume the role of the employer in those instances because they are charged with impartiality under state and federal law and the dictates of due process.  G.L. c. 151A, §39(b); 42 U.S.C. § 503(3)(a); Dicerbo v. Nordberg, No. 93-5947B, 1998 WL 34644 (Mass. Super. 1998) (affirming need for review examiners to be independent and impartial decisionmakers).  Review examiners far too often assume the role of the absent employer and go beyond establishing that the case is a discharge rather than a quit.  Where the review examiner improperly relies on the absent employer’s documents submitted to DUA (thereby depriving the claimant of the right of crossexamination of adverse evidence) as well as cross-examines a claimant without a foundational prima facie case having been established by the employer, an advocate should prepare the claimant to address these issues while also making an objection for the record if an appeal is needed.

The examiner must make findings as to the claimant’s state of mind at the time of the alleged misconduct to determine whether the conduct was both “deliberate” and in “willful disregard” of the employer’s interest. Jones v. Dir. of the Div. of Employment Security, 392 Mass. 148, 465 N.E.2d 245 (1984); Wedgewood v. Dir. of the Div. of Emp't Sec., 25 Mass. App. Ct. 30, 514 N.E.2d 680 (1987); This point was restated in South Central Rehabilitative Resources, Inc. v. Comm'r of the Div. of Emp't & Training, 55 Mass. App. Ct. 180, 770 N.E.2d 17 (2002).

When a discharged worker seeks UI benefits, the issue is not whether the employer was justified in discharging the claimant but whether the Legislature intended that UI 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 UI benefits. Dir. of the Div. of Emp't 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 agency from determining that the teacher’s discharge was not attributable to deliberate misconduct in willful disregard of the town’s interest). Similarly, notwithstanding the gravity of error where a claimant failed to check a patient’s IV catheter, where the error was caused by negligence and was not an intentional act, the claimant is entitled to UI benefits.  BR-106310 (7/16/08) (Key).