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BOR 611518

BOR (Board of Review)

BOR reversed RE decision denying UI on grounds of claimant's deliberate misconduct.

Clamant worked in the prepared foods section of a supermarket and used frozen vacuum-sealed meat that was past its expiration date to prepare sandwiches for customers.  The employer had an expectation that employees would immediately dispose of any food that was past its expiration date to ensure that all food served was fresh and safe to eat.  The review examiner found that the client was aware of this expectation because she had attended a training on the expired food policy and that she therefore had engaged in deliberate misconduct. 


On appeal, client's advocate argued that the examiner had ignored the client’s unrefuted testimony in the record regarding her state of mind and had failed to make the required subsidiary findings.  The client had testified that she tried the meat before she used it and honestly believed it was still good even though it was past its expiration date.  She said she thought she was helping her employer by serving the meat because they had not received their normal meat delivery that day.  She also testified that her understanding of the employer’s policy about expired food was that it was all right to serve food as long as it had not gone bad.

BOR remanded the case to the review examiner to make subsidiary findings from the record about the client’s state of mind (see Findings of Fact No. 8).  The Board held that the client had not engaged in deliberate misconduct in willful disregard of the employer’s interest because she “may have had a good-faith lapse of judgment when she decided to use out-of-date food, but she lacked an intention to harm the employer, and intended in a misguided way to further the employer’s best interests.”

Advocate: Margaretta Kroeger, MetroWest



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