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Wernke v. State3/17/1999
e foregoing grounds for termination of employment, we must now decide whether Claimant's conduct constituted work-related misconduct. SDCL 61-6-14.1 defines misconduct which would preclude Claimant's receiving unemployment benefits, as:
"(1) Failure to obey orders, rules or instructions, or failure to discharge the duties for which an individual was employed; or
"(2) Substantial disregard of the employer's interests or of the employee's duties and obligations to his employer; or
"(3) 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
"(4) Carelessness or negligence of such degree or recurrence as to manifest equal culpability or wrongful intent."
[ ] However, mere inefficiency, unsatisfactory conduct, failure to perform as the result of inability or incapacity, a good faith error in judgment or discretion, or conduct mandated by a religious belief which belief cannot be reasonably accommodated by the employer is not misconduct. SDCL 61-6-14.1.
[ ] Assuming then, that Employer did not wrongfully terminate Claimant's employment, the question is whether that termination should result in denial of unemployment benefits.
[ ] Unemployment statutes must be liberally construed in favor of the claimant. Red Bird v. Meierhenry, 314 NW2d 95, 96 (SD 1983). In looking at SDCL 61-6-14.1, we must determine which, if any, of the enumerated factors would preclude Claimant from receiving compensation. Perhaps the most that can be said with regard to any applicable conduct described in that statute, is that there was a "failure to obey orders, rules or instructions," SDCL 61-6-14.1(1), in that Claimant "attempted to socialize with a client."
[ ] As indicated earlier, however, there was no order, rule or instruction prohibiting the socialization with a client. There was only a policy that warned against such socializing with a client, not an express prohibition, order, rule, or instruction. None of the remaining enumerated factors apply to this fact situation.
[ ] In the interpretation and clarifying of SDCL 61-6-14.1, we must consider the rule for determining the meaning of "work- related misconduct" as set forth by the Washington Supreme Court in Nelson v. Department of Employment Security, 655 P2d 242 (Wa 1982), and adopted by our Court in the case of Matter of Joseph Kotrba, 418 NW2d 313, 316 (SD 1988), where the rule was quoted:
" n order to establish misconduct connected with an employee's work as required by [statute] the employer must show by a preponderance of the evidence that a reasonable person would find the employee's conduct: (1) had some nexus with the employee's work; (2) resulted in some harm to the employer's interests; and (3) was in fact conduct which was (a) violative of some code of behavior contracted for between employer and employee, and (b) done with intent or knowledge that the employer's interest would suffer."
[ ] Applying that rule to this fact situation, it may fairly be said that the conduct did have some nexus with Claimant's work. There was no evidence, however, nor any finding by the ALJ, that Claimant's conduct resulted in some harm to the Employer's interest. Furthermore, there was no evidence or finding that the conduct was violative of some code of behavior or, for that matter, that it was done with intent or knowledge that the employer's interest would suffer. In summary, just as in Kotrba, while Claimant's conduct may have been reckless or a result of very poor judgment, it falls short
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