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Dailey v. Board of Review, West Virigina Bureau of Employment Programs11/10/2003
The Appellant was hired by Executive Air Terminal, Inc., (hereinafter "Executive") on May 1, 2000, as a line technician. *fn1 The Appellant's duties included driving gasoline trucks and also required him to drive off the airport property to obtain bulk gasoline and deliver passengers on public roads. When the Appellant was initially hired by Executive, the evidence presented below indicated that he represented that he maintained a valid driver's license. Subsequent to several unsuccessful attempts to obtain a copy of that driver's license, Executive contacted the West Virginia Department of Motor Vehicles and learned that the Appellant's license had been suspended in 1996. Upon realizing that the Appellant was performing his driving duties without a valid license and subjecting Executive to potential liability, Executive discharged the Appellant on June 6, 2000, based upon his lack of a valid West Virginia driver's license. *fn2 The Board concluded that the Appellant had been terminated for gross misconduct and denied the Appellant unemployment compensation benefits. The lower court affirmed that determination. The Appellant now appeals to this Court.
II. Standard of Review
In syllabus point three of Adkins v. Gatson, 192 W. Va. 561, 453 S.E.2d 395 (1994), this Court explained the following standard of review:
The findings of fact of the Board of Review of the [West Virginia Bureau of Employment Programs] are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong. If the question on review is one purely of law, no deference is given and the standard of judicial review by the court is de novo.
Our review of this matter is further governed by our consistent recognition that "[u]nemployment compensation statutes, being remedial in nature, should be liberally construed to achieve the benign purposes intended to the full extent thereof." Syl. Pt. 6, Davis v. Hix, 140 W. Va. 398, 84 S.E.2d 404 (1954); see also Syl. Pt. 2, Smittle v. Gatson, 195 W. Va. 416, 465 S.E.2d 873 (1995); Syl. Pt. 1, Perfin v. Cole, 174 W. Va. 417, 327 S.E.2d 396 (1985). We have also asserted that "unemployment compensation statutes should be liberally construed in favor of the claimant[.]" Davenport v. Gatson, 192 W. Va. 117, 119, 451 S.E.2d 57, 59 (1994). Syllabus point one of Peery v. Rutledge, 177 W. Va. 548, 355 S.E.2d 41 (1987), also instructs that "[d]isqualifying provisions of the Unemployment Compensation Law are to be narrowly construed."
III. Discussion
A. West Virginia Statutory Guidance
Pursuant to West Virginia Code § 21A-6-3 (1990) (Repl. Vol. 2002), individuals are disqualified from obtaining unemployment benefits for six weeks *fn3 if the termination of their employment was due to misconduct and are disqualified indefinitely if the termination was due to gross misconduct. *fn4 The obvious question is therefore whether the action which precipitated the termination constituted simple misconduct or gross misconduct. The statute provides minimal guidance on this distinction, failing to provide a definition for simple misconduct and providing the following commentary on gross misconduct:
Misconduct consisting of willful destruction of his employer's property; assault upon the person of his employer or any employee of his employer; if such assault is committed at such individual's place of employment or in the course of employment; reporting to work in an intoxicated condition, or being intoxicated while at work; reporting to work under the influence of any controlled substance, or being under the influence of any controlled substance while at work; arson, theft, larceny, fraud or embezzlement in connection with hi
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