STATE OF RHODE ISLAND
AND PROVIDENCE PLANTATIONS
PROVIDENCE,
SC DISTRICT COURT
EMIL
BIYEVETSKIY :
V.
: A.A. 04-44
DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW :
D E C I S I O N
DEROBBIO, C.J.
This matter is before the Court on the complaint of Emil Biyevetskiy, filed
pursuant to Rhode Island General Laws § 42-35-15, seeking judicial review
of a final decision rendered by the respondent, Board of Review, Department
of Labor and Training, which upheld the finding of the Referee that the claimant,
Emil Biyevetskiy was not entitled to receive employment security benefits.
The travel of the case is as follows. The claimant last worked on September
25, 2003. The claimant filed his new claim for benefits on October 5, 2003.
In a decision dated December 24, 2003, the Director determined the claimant
was discharged under disqualifying circumstances, as provided for under Section
28-44-18 of the Rhode Island Employment Security Act. The claimant filed a timely
appeal of this decision. A hearing on the appeal was initially scheduled for
January 28, 2004, but was postponed by the Board of Review. A subsequent hearing
was scheduled and held on February 11, 2004, at which the claimant appeared
and provided testimony. A representative of the employer appeared and provided
testimony.
The Referee held the claimant was not entitled to receive unemployment security
benefits, based on the determination that claimant was guilty of misconduct
in connection with his work and was thus disqualified pursuant to Rhode Island
General Laws § 28-44-18.
Thereafter, a timely appeal was filed and the matter was heard by the Board
of Review. The Board determined that the Referee's decision was a proper adjudication
of the facts, and upheld the Referee's decision. Thereafter, Emil Biyevetskiy
filed a complaint for judicial review; jurisdiction for review of the decisions
of the Board is vested in the District Court by Rhode Island General Laws §
28-44-52.
The standard of review is provided by Rhode Island General Laws § 42-35-15(g),
a section of the state Administrative Procedures Act, which provides as follows:
42-35-15. Judicial review of contested cases.
(g) The court shall not substitute its judgment for that of the agency as to
the weight of the evidence on questions of fact. The court may affirm the decision
of the agency or remand the case for further proceedings, or it may reverse
or modify the decision if substantial rights of the appellant have been prejudiced
because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation
of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the
whole record; or
(6) Arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of
discretion.
Thus, on questions
of fact, the District Court ". . . may not substitute its judgment for
that of the agency and must affirm the decision of the agency unless its findings
are clearly erroneous." Guarino v. Department of Social Welfare, 122 R.I.
583, 584, 410 A.2d 425 (1980) citing Rhode Island General Laws § 42-35-15(g)(5).
The Court will not substitute its judgment for that of the Board as to the weight
of the evidence on questions of fact. Cahoone v. Board of Review of the Department
of Employment Security, 104 R.I. 503, 246 A.2d 213 (1968). Stated differently,
the findings of the agency will be upheld even though a reasonable mind might
have reached a contrary result. Cahoone v. Board of Review of Department of
Employment Security, 104 R.I. 503, 246 A.2d 213, 215 (1968). See also D'Ambra
v. Board of Review, Department of Employment Security, 517 A.2d 1039, 1041 (R.I.
1986).
The Court has recognized that a liberal interpretation shall be utilized in
construing and applying the Employment Security Act:
. . . eligibility for benefits is to be determined in the light of the expressed
legislative policy that "Chapters 42 to 44, inclusive, of this title shall
be construed liberally in aid of their declared purpose which declared purpose
is to lighten the burden which now falls upon the unemployed worker and his
family." G.L.1956, § 28-42-73. The legislature having thus declared
a policy of liberal construction, this court, in construing the act, must seek
to give as broad an effect to its humanitarian purpose as it reasonably may
in the circumstances. Of course, compliance with the legislative policy does
not warrant an extension of eligibility by this court to any person or class
of persons not intended by the legislature to share in the benefits of the act;
but neither does it permit this court to enlarge the exclusionary effect of
expressed restrictions on eligibility under the guise of construing such provisions
of the act. Harraka v. Board of Review of Department of Employment Security,
98 R.I. 197, 201, 200 A.2d 595, 597 (1964).
The issue before the Court is whether the Board's determination that the Referee's
decision was a proper adjudication of the facts and that the claimant was discharged
for misconduct in connection with his work was supported by reliable, probative,
and substantial evidence in the record and whether or not it was clearly erroneous.
The Board of Review adopted the following findings of fact of the Referee:
"The claimant had been working full-time as a security guard for a local
security company. The claimant worked mainly in the evening hours. The claimant
was terminated by this employer for job performance issues to include improper
dress and uniform attire, which continued after warnings were issued."
The Board of Review adopted the following conclusions of the Referee:
"The issue involved is whether or not the claimant was discharged from
this job under disqualifying circumstances within the provisions of Section
28-44-18 of the Rhode Island Employment Security Act.
An individual who is discharged for reasons of proven misconduct in connection
with his work must be held to have been terminated under disqualifying circumstances
under the provisions of Section 28-44-18 which provides, in part, as follows:
For the purposes of this section, misconduct shall be defined as deliberate
conduct in willful disregard of the employer's interest, or a knowing violation
of a reasonable and uniformly enforced rule or policy of the employer, provided
that such violation is not shown to be as a result of the employee's incompetence.
Notwithstanding any other provisions of chapters 42 - 44 of this title, this
section shall be construed in a manner which is fair and reasonable to both
the employer and the employed worker.
In the case of Turner vs. Department of Employment and Training, Board of Review,
479 A 2d 740, 741-42 (R.I. 1984), the Rhode Island Supreme Court adopted a general
definition of the term, 'misconduct', as enunciated in Boynton Cab Co. vs. Newbeck,
[sic] 237 Wis. 249, 296 N.W. 636 (1941):
''[M]isconduct' . . . is limited to 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 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 interest 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, inadvertencies 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. Id. at 259-60, 296 N.W. at 640.'
In all cases of discharge, the burden of proof to show misconduct in connection
with the work on the part of the claimant rests solely with the employer. In
the instant case, the claimant was terminated for job performance issues as
cited in the Findings of Fact. The claimant's actions, which continued after
warnings were issued, constitute misconduct rising to the level as cited above.
Therefore, the claimant cannot be allowed benefits on this issue."
Section 28-44-18 of the General Laws of the state of Rhode Island provides:
28-44-18. Discharge for misconduct. -- An individual who has been discharged
for proved misconduct connected with his or her work shall thereby become ineligible
for waiting period credit or benefits for the week in which that discharge occurred
and until he or she establishes to the satisfaction of the director that he
or she has, subsequent to that discharge, had at least eight (8) weeks of work,
and in each of that eight (8) weeks has had earnings of at least twenty (20)
times the minimum hourly wage as defined in chapter 12 of this title for performing
services in employment for one or more employers subject to chapters 42 - 44
of this title; provided, however, that any individual who is required to leave
his or her work pursuant to a plan, system, or program, public or private, providing
for retirement, and who is otherwise eligible, shall under no circumstances
be deemed to have been discharged for misconduct. However, if an individual
is discharged and a complaint is issued by the regional office of the national
labor relations board or the state labor relations board that an unfair labor
practice has occurred in relation to the discharge, the individual shall be
entitled to benefits if otherwise eligible. For the purposes of this section,
"misconduct" shall be defined as deliberate conduct in willful disregard
of the employer's interest, or a knowing violation of a reasonable and uniformly
enforced rule or policy of the employer, provided that such violation is not
shown to be as a result of the employee's incompetence. Notwithstanding any
other provisions of chapters 42 - 44 of this title, this section shall be construed
in a manner which is fair and reasonable to both the employer and the employed
worker.
The standard for defining "misconduct" under section eighteen was
provided by the Rhode Island Supreme Court in Turner v. Department of Employment
Security, 479 A.2d 740, 741-42 (R.I. 1984), in which the Court quoted from Boynton
Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636, 640 (1940):
'[M]isconduct' . . . is limited to conduct evincing such wilful 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 degree or recurrence as to manifest
equal culpability, wrongful intent or evil design, or to show an intentional
and substantial disregard 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, inadvertencies 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.
The Court reviewed the entire record which demonstrates that the employer operated
a security company, and its policy required that security guards be required
to wear uniforms on job sites. This requirement is necessitated by the site
owners, which serves as a deterrent in the protection of the area.
There is also evidence on the record that the claimant did not comply with the
uniform requirement and was given warnings and then a termination notice for
the failure to comply.
There is sufficient evidence on the record to establish that the conduct of
the claimant rises to the level of misconduct as defined by Turner v. Department
of Employment Security.
A review of the entire record demonstrates that there is substantial, probative
and reliable evidence to support the findings of fact, conclusions and decision
of the Board of Review.
On findings of fact, as to the weight of the evidence, this Court shall not
substitute its judgment for that of the administrative agency.
The scope of judicial review by the Court is limited by Section 28-44-54 which
in its pertinent part provides:
28-44-54. Scope of judicial review - Additional evidence - Precedence of proceedings.
- The jurisdiction of the reviewing court shall be confined to questions of
law, and, in the absence of fraud, the findings of fact by the board of review,
if supported by substantial evidence regardless of statutory or common law rules,
shall be conclusive.
Upon careful review of the evidence, this Court finds that the decision of the Board was not "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record," and that said decision was not "arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Rhode Island General Laws § 42-35-15(g)(5)(6).
Accordingly, the decision of the Board is hereby affirmed.
JUDGEMENT
This cause came on before DeRobbio, C.J. on Administrative Appeal, and upon
review of the record and a decision having been rendered, it is
ORDERED AND ADJUDGED
The decision of the Board is hereby affirmed.