|DECISION DATE: 4/13/92
|CLAIMANT: Kevin D. Robertson
||APPEAL NO.: 9205038
|EMPLOYER: Saval Foods Corp.
|L. O. NO.: 001
Issue: Whether the claimant was discharged for gross misconduct
connected with the work, within the meaning of MD Code,
Labor and Employment Article, Title 8, Section 1002.
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|For the Claimant:
|For the Employer:
Paul Saval, Vice President;
Frank S. Solomon, Esq.
FINDINGS OF FACT
The claimant was employed at Saval Foods as a driver from
November 2, 1990 until February 4, 1992, at a pay rate of $9.25 per hour.
The claimant received a warning on October 3, 1991, because
he had not been following call in procedures and because
he had been insubordinate, although the nature of the
insubordination was not specifically indicated (Employer's
Exhibit No. 1).
On February 4, 1992, another driver, Steve, called in sick.
The claimant, who already had 14 stops scheduled, was
asked to pick up some of the load for Steve. According
to the employer, the claimant was only asked to handle
six or seven additional stops, half of Steve's run.
The claimant insisted that he was asked to handle the
entire route of Steve, which would have given him a
total of 27 stops to do in one day. The claimant was
concerned that he could not complete the entire run
in less than ten hours and that would be in violation
of the Federal Department of Transportation Regulations.
As a commercial driver, he was required to sign a log book,
although, the employer did not provide him with any.
The claimant refused to go out on the run at all because
of his concern that he would be in violation of the federal regulation.
The claimant was terminated (Employer's Exhibit No. 2 and 3).
CONCLUSIONS OF LAW
The term "misconduct," as used in the Statute means a transgression
of some established rule or policy of the employer, the
commission of a forbidden act, a dereliction from duty,
or a course of wrongful conduct committed by an employee
within the scope of his employment relationship, during
hours of employment or on the employer's premises within
the meaning of the Maryland Code, Labor and Employment
Article, Title 8, Section 1003. (See Rogers v. Radio Shack
271 Md. 126, 314 A.2d 113).
In making a determination of gross misconduct, the finder
of fact must not look simply at the substandard conduct,
but for a willful and wanton state of mind accompanying
the engaging in substandard conduct. Where conduct demonstrates
an utter disregard of an employee's duties and obligations
to the employer, and is calculated to disrupt the discipline
and order requisite to the order of proper management
of a company, a finding of gross misconduct is supported.
Employment Security Board v. LeCates, 218 Md. 202, 145 A.2d 840 (1958).
It is the employer's burden to prove by a preponderance of
the evidence that the claimant did indeed commit the gross
misconduct or misconduct alleged. The preponderance of
the credible evidence presented demonstrates that the
claimant did refuse to drive a load of food on February
4, 1992. The claimant had previously been warned about
insubordination. However, the employer failed to meet
its burden of proving by a preponderance of the credible
evidence that the claimant's action rose to the level
of gross misconduct.
It is held that the claimant was discharged for misconduct
connected with the work, within the meaning of the MD
Code, Labor and Employment Article, Title 8, Section
1003. Benefits are denied for the week February 2, 1992,
and for the nine weeks immediately following.
The determination of the Claims Examiner is reversed.
Ann E. Singleton, Hearing Examiner
Date of hearing: 3/27/92
Specialist ID: 01061
ah/Mailed copies on 4/13/92 to:
Unemployment Insurance - Baltimore MABS
FRANK S. SOLOMON
ATTORNEY AT LAW