STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

Philip Services Corp.


v. : A.A. No. 06-34

Department of Labor & Training, Board of Review :

DECISION

Cenerini, J. This matter is before this Court on the complaint of Philip Services Corp. (herinafter "Employer") filed pursuant to R.I.G.L. 1956 § 42-35-15, seeking judicial review of a final decision rendered by the respondent, Board of Review, Department of Labor & Training, (hereinafter "the Board") which upheld the finding of the Referee that complainant Robert Sousa was entitled to receive employment security benefits.

FACTS & TRAVEL

The travel of the case is as follows:
The claimant was employed for eight and one half months by the employer. His last day of work was December 4, 2005. He filed a claim for Employment Security benefits on December 7, 2005. The Director determined that the claimant was suspended under disqualifying circumstances under the provisions of Section 28-44-18 of the Rhode Island Employment Security Act. The claimant filed a timely appeal of this decision on December 30, 2005. A hearing on the appeal was begun on January 23, 2006, and was continued to and completed on January 25, 2006. The claimant, with a representative, and two employer representatives appeared and testified on both dates. Decision of Referee at 1.

The Referee made the following findings of fact:

The claimant was employed in the position of maintenance person by the employer. In this position, he was required to complete various tasks assigned by his supervisor, and to respond to maintenance requests of other employees. On October 31, 2005, the claimant was given a verbal warning, indicating that he was not completing the jobs assigned to him quickly enough. On November 18, 2005, the claimant was given a written warning for failure to complete jobs which had been assigned to him on October 27, 2005 and thereafter. On December 2, 2005, the claimant was given a second written warning, indicating that he was not completing tasks assigned to him on November 4, 2005, as well as some of the work assigned to him on October 27, 2005. Based upon previous warnings, and the written warning of December 2, 2005, the claimant was suspended from December 5 through December 7, 2005, without pay. Decision of Referee at 1.

The Referee held that the claimant was entitled to receive unemployment security benefits, based on the determination that the employer had not sustained its burden of proving that the claimant's actions constitute misconduct. Thus, the claimant was qualified pursuant to R.I.G.L. § 28-44-18.
Thereafter, a timely appeal was filed and the matter was heard by the Board of Review. The Board, in a majority decision, determined that the decision of the Referee was a proper adjudication of the facts in this case and the law applicable thereto and upheld the Referee's decision. Thereafter, the employer filed a complaint for judicial review; jurisdiction for the review of the decisions of the Board is vested in the District Court by R.I.G.L. § 28-44-52.

APPLICABLE LAW

This case involves the application and interpretation of the following provision of the Rhode Island Employment Security Act, which specifically touches on disqualifying circumstances; R.I.G.L. § 28-44-18 provides:
28-44-18. Discharge for misconduct. --- An individual who has been discharged for proved misconduct connected with his or her work shall 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. 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. 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" is 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 that is fair and reasonable to both the employer and the employed worker.

In the case of Turner v. Department of Employment and Training, Board of Review, 479 A.2d 740, 741-42 (R.I. 1984), the Rhode Island Supreme Court adopted a definition of the term, "misconduct," in which they quoted from Boynton Cab Co. v. Newbeck, 237 Wis. 249, 259-60, 296 N.W. 636, 640 (1941):
'Misconduct' … 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 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 employer bears the burden of proving through a preponderance of evidence that the claimant's action, in connection with her work activities, constitutes misconduct.
STANDARD OF REVIEW
The standard of review is provided by R.I.G.L. § 42-35-15(g), a section of the state Administrative Procedures Act, which provides:
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 R.I.G.L. § 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, 246 A.2d at 215. See also, D'Ambra v. Board of Review, Department of Employment Security, 517 A.2d 1039, 1041 (R.I. 1986).
The Supreme 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, 200, 200 A.2d 595, 597 (1964)

ANALYSIS

The issue before the Court is whether the decision of the Referee, as adopted and ratified by the Board, was supported by reliable, probative, and substantial evidence in the record or whether or not it was clearly erroneous or affected by an error of law.
In finding that the claimant was eligible for benefits, the Referee concluded:
Under the law, a suspension must be viewed as a termination, and in cases of termination, the burden of proof rests solely with the employer. In this case, the employer has not sustained its burden. Based upon credible evidence and testimony presented at the hearing, I cannot find that the employer has demonstrated that the claimant's actions constitute deliberate behavior in willful disregard of the employer's interests and therefore, misconduct, under the above Section of the Act. In the absence of proven misconduct, benefits must be granted on this issue. Decision of Referee at 1-2.

The claimant testified that he never wasted any time or turned down any work order request, but rather that he performed his work duties to the best of his ability. (Tr. II at 36, 38-39.) In accordance with R.I.G.L. § 28-44-44, the appeal tribunal or Referee must "inquire into and develop all facts bearing on the issues and shall receive and consider evidence without regard to statutory and common law rules." It is clear from the record that the Referee weighed the testimony and evidence presented by both the claimant and the employer representatives and made a determination that the claimant was more credible. That determination was based on competent probative evidence in the record and was not clearly erroneous. On findings of fact, as to the weight of the evidence, this Court shall not substitute its judgment for that of the administrative agency.
Additionally, employer representative Joseph Pomerleau stated in testimony before the Referee that the claimant's "three-day suspension was given for poor job performance." (Tr. II at 45.) The employer's complaints about the claimant's actions centered on the claimant not being proactive enough and not performing his tasks in a timely manner. (Tr. I at 19, 30.) However, poor job performance is not generally considered misconduct within the meaning of R.I.G.L. § 28-44-18.
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.
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." R.I.G.L. § 42-35-15(g)(5)(6).

Accordingly, the decision of the Board is hereby affirmed.