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EDWARD L. BOOTH v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION9/11/1991
which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer's interest or of the employee's duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered" misconduct "within the meaning of the tatute.
Wheeler v. Arriola, 408 So. 2d 1381, 1383 (Miss. 1982) (citing Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941)); see also Miss. Employment Sec. Comm'n v. Borden, Inc., 451 So. 2d 222, 225 (Miss. 1984); Miss. Code Ann. 71-5-513 (A) (1) (b) (Supp. 1988) (" An individual shall be disqualified for [unemployment] benefits . . . for misconduct connected with his work, if so found by the commission. "). Clearly, the various incidents discussed above reflect" misconduct. "Excessive absenteeism has been held to be" misconduct "so as to disqualify an employee from unemployment
compensation benefits. Mississippi Employment Security Commission v. Martin, 568 So. 2d 725, 726 (Miss. 1990). This Court affirms on this issue.
B. Issue #2
1.
On May 19, 1989, the Chairperson of the Board notified Booth by copy of the letter that the City had appealed the Referee's decision reinstating unemployment benefits.
Dear Sir:
In the matter of the claim for unemployment benefits for subject individual, please be advised that your appeal to the Board of Review has been received. The Board will consider your appeal based upon the record already made and no hearing will be scheduled unless the Board, in its discretion, shall direct that a further hearing be scheduled.
The decision by the Board on your appeal, or notice of further hearing if directed by the Board, will be forthcoming.
Very truly yours,
s/Ellie A. Fortner, Chairman Board of Review
cc: EDWARD L. BOOTH 1203 SKIP STREET PASCAGOULA MS 39567
The Board did not mail a copy of the letter to Booth's attorney of record who represented him before the Referee. On June 13, 1989, the Board reversed the Referee's decision and denied benefits. On June 19, 1989, Booth's attorney mailed a letter to the Board: (1) asking why he had not received a notice of the appeal and the Board's decision to review the Referee's decision; and (2) requesting the Board reconsider its decision to deny benefits and provide him" reasonable time "to submit a brief in support of his Booth's position. The Board responded by simply denying his request for reconsideration, and the circuit court affirmed.
2.
Booth now contends that his constitutional rights to due process were violated because his attorney did not receive
notification of the City's appeal to the Board. Booth concedes that the Board mailed him a notice, but he contends that this did not satisfy his minimum due process rights - particularly since he is entitled to counsel under a Board regulation. Booth cites two state court decisions to support his contention. In Mountain States Telephone & Telegraph Co. v. Department of Labor & Employment, the Colorado Supreme Court stated:
It follows that when a client has employed an attorney to present his defense to claims in litigation, and notice of this representation by entry of appearance has been given to the opposing
Page 1 2 3 4 5 6 Mississippi DUI Attorneys
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