STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

GILBERTO JOSE :


VS. : A.A. NO. 01-16


DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW :

JUDGMENT

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.

Dated at Providence, Rhode Island, this day of , 2001.

ENTER: BY ORDER:

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

GILBERTO JOSE :
:
:
V. : A.A. 01-16
:
:
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 Gilberto Jose, 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 reversed the finding of the Referee that the claimant, Gilberto Jose was entitled to receive employment security benefits.
The travel of the case is as follows. The claimant had been employed for approximately 11 years. His last day of work was on March 16, 2000. The claimant filed a claim for Employment Security benefits on August 9, 2000.
On September 15, 2000 the Director determined that the claimant voluntarily left his job with good cause under the provisions of Section 28-44-17 of the Rhode Island Employment Security Act. The employer filed a timely appeal.
A hearing was held before a Referee on October 18, 2000 and continued to October 20, 2000, at which time the claimant and two employer representatives appeared and testified. On October 26, 2000 the Referee reversed the decision of the Director and allowed benefits. The Referee determined that the claimant was terminated for reasons other than misconduct. The employer filed an appeal of the Referee's decision with the Board of Review.
Because of a malfunction with the recording device at the Referee's hearing, the Board noticed the appeal for a hearing de novo. A hearing was scheduled before the Board on November 22, 2000, December 4, 2000, December 13, 2000, and January 2, 2001 but continued to January 17, 2001 at the request of the parties. On January 17, 2001 four employer representatives and employer's counsel were present before the Board. The claimant was not present.
The Board determined that the Referee's decision was not a proper adjudication of the facts, and reversed the Referee's decision. Thereafter, Gilberto Jose 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 not a proper adjudication of the facts and that the claimant was discharged for misconduct in connection with his employment was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.
The Board of Review made the following findings of fact:
"The claimant was employed [sic] a machine operator. The claimant notified his employer that he was injured. The employer referred the claimant to a physician who excused him from work until April 28, 2000. The claimant filed a Workers' Compensation claim.

The claimant returned to work on April 28, 2000 but worked for only a short time because he felt ill. The claimant went to the emergency room and was absent from work.

On June 16, 2000 the claimant attended a pretrial conference at Worker's Compensation Court. After the pretrial conference, a pre-trial order was entered in which the claimant was awarded benefits for a closed period, from March 17, 2000 to June 17, 2000. The claimant was not satisfied and filed a claim of trial.

On June 16, 2000 the claimant was instructed by the employer's counsel to return to work on June 19, 2000 and he would be provided work to include light duty work. The claimant did not return to work. On June 22, 2000 the employer sent the claimant a letter to inform him that he was terminated effective June 21, 2000 for failing to report to work in accordance with the employer's instructions of June 16, 2000."

The Board of Review made the following conclusions:
"The issue is whether or not the claimant was discharged under disqualifying circumstances within the meaning of Section 28-44-18 of the Rhode Island Employment Security Act.

In order to impose a disqualification under the provisions of Section 28-44-18, there must be proof that the person who was discharged committed an act of misconduct in connection with the work.

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.

The record of proceedings established that the claimant was instructed by the employer's attorney, through the claimant's wife who was acting as his interpreter, to report to work after the pre-trial conference on June 16, 2000.

The aforementioned employer's testimony was not presented before the Referee. The Referee had concluded that the claimant neither had been informed that he was expected to return to work nor sent any documentation. However, the Referee did not have the first hand testimony of the employer's counsel. Therefore, we find that the claimant was advised to return to work. The employer's instructions were reasonable and we find that the claimant understood the instructions. The claimant's failure to return to work was deliberate and in disregard of the employer's interest. The employer has established misconduct and the claimant, therefore, is not eligible to receive Employment Security benefits."

Section 28-44-18 of the General Laws of Rhode Island 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 work shall thereby become ineligible for benefits for the week in which that discharge occurred and until he establishes to the satisfaction of the director that he has, subsequent to that discharge, had at least four (4) weeks of work, and in each of that four (4) weeks has had earnings of at least twenty (20) times the minimum hourly wage as defined in chapter 42 of this title. (Emphasis added.)

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 efficiency, 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 claimant alleges in his appeal that he was not informed that he should return to work.
A review of the entire record demonstrates that the claimant was advised to return to work; and that such instructions appeared from the evidence to be reasonable. The evidence on the record demonstrates that the claimant understood the instructions and failed to return to work, which was a deliberate and intentional act in disregard of the employer's interest.
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.