Appellant: Darlene M. Stagner
Appellee: Board of Review of the Oklahoma Employment Security Commission
Jurisdiction: Court of Appeals of Oklahoma, Division No. 3
Hearing_Date: February 20, 1990
Text_of_Rule:

Published

** SEE: Okl., 792 P.2d 94 (1990)

Appeal from the District Court of Kay ; County, Oklahoma; Neal Beekman, Judge.

AFFIRMED.

Chiles E. Townsend, Holmes and Townsend, Ponca City, for appellant.

David T. Hopper, Oklahoma City, for appellee Oklahoma Employment Security Com'n.

John J. Gardner, II, Northcutt, Raley, Clark & Gardner, Ponca City, for appellee Jim Highfill, D.D.S.

MEMORANDUM OPINION

( BAILEY )

Appellant seeks review of the Trial Court's order granting judgment to Appellees. Appellee Jim Highfill, D.D.S., (Employer), employed Appellant as a dental hygienist for about ten years, and apparently paid Appellant on a "commission" basis, i.e., a percentage of proceeds generated from Appellant's work. On the advice of his accountant, and to better document his employees' hours, Employer installed a time clock. Employer required Appellant and other employees to clock in and out using the time clock. Appellant did not use the time clock after April, 1987. Employer terminated Appellant from the employment for failure to use the time clock in October, 1987.

Appellant applied for unemployment benefits, which were denied. In subsequent appeals to the Appeal Tribunal and Appellee Board of Review (Board), the denial of Appellant's claim was affirmed. Appellant sought further review before the District Court of Kay County, which affirmed the Board of Review's denial of Appellant's claim for unemployment benefits. In this appeal, Appellant again asserts that her failure to use Employer's time clock does not amount to "misconduct" so as to disqualify Appellant from receiving unemployment benefits.

Misconduct disqualifying a claimant from unemployment benefits has been defined as:

"conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such a degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand, mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, in advertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute."

Vester v. Bd. of Review of Ok. Employment Security Commission, 697 P.2d 533, 537 (Okl.1985); see also, Tynes v. Uniroyal Tire Co., 679 P.2d 1310, 1312 (Okl.App. 1984).

In the appellate review of orders of the Employment Commission, "the findings of the Board of Review as to the facts, if supported by the evidence, shall be conclusive and the jurisdiction of the district court shall be confined to issues of law." Citations: Unpublished Opinion No. 71,240 (1990)


Filename: m0008597