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Transam Trucking9/27/2002
Reversed and remanded with directions.
The Employment Security Board of Review (Board) and Mark Brown seek review of district court rulings that an appeal filed by Transam Trucking (Transam) was timely and that Transam's account would not be charged with unemployment benefits paid to Brown. We agree Transam's appeal was timely but reverse and remand to the district court with directions that it remand to the Board to make further findings on the merits of the dispute.
Brown applied for benefits after being discharged from his employment as a truck driver with Transam. Transom let Brown go pursuant to a company policy requiring termination when an employee had been involved in more than two preventable accidents within 3 years.
Brown acknowledged having three accidents. The first was a rollover. Brown said this accident occurred when he hit something in the road and the load in the truck shifted, causing him to lose control. Brown was not ticketed for this accident. The second accident occurred when a vehicle passed Brown and then cut in front of him. Brown could not stop in time and rear-ended the vehicle. Brown was ticketed for this accident. The third accident occurred when Brown was backing up to park the truck, did not see another vehicle in his mirrors, and hit it. Brown was not ticketed for this accident. All three of the accidents occurred within 1 year.
The hearing examiner concluded Brown was not disqualified from receiving benefits because the evidence was insufficient to establish that his discharge was the result of a violation of a duty or obligation reasonably owed to the employer as a condition of employment. In the examiner's view, misconduct had not been established under K.S.A. 2001 Supp. 44-706(b). Transam appealed the examiner's decision.
The referee held Transam had not shown misconduct as defined in the statute and affirmed the decision of the hearing examiner. In so ruling, the referee found the evidence did not show an intentional act or conduct over which Brown had control sufficient to meet the definition of misconduct. The referee also found Brown's apparent lack of ability to drive safely did not necessarily translate into intentional conduct.
The Board adopted the findings of fact and decision of the referee and affirmed. The opinion of the Board stated the mailing date for its decision was December 19, 2000. It further stated the Board's decision would become final 16 days after the mailing date and, if the aggrieved party desired to appeal, its notice must be filed in the district court within 16 days.
Transam filed its notice of appeal and petition for judicial review of the Board's decision on January 8, 2001, 20 days after the December 19, 2000, mailing date. The Board moved to dismiss the appeal for lack of jurisdiction. The district court found the appeal timely, holding that Transam was entitled to an additional 3 days beyond the 16 to file its appeal because it was served with the Board's opinion by mail. Because the 19th day fell on a Sunday, filing on the 20th day was sufficient.
The district court then heard arguments on the merits. At the close of arguments, the district court observed the referee's decision relied on K.S.A. 44-706(b)(4) for the proposition that "the individual shall not be disqualified if the individual made a good faith effort to do the work but was discharged due to isolated instances of ordinary negligence or inadvertence." This was a correct statement of the law applicable to the case. However, the court then noted the referee applied an old version of K.S.A. 44-706(b)(1) when it stated the evidence did not show an intentional act or conduct over
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