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Dailey v. Board of Review, West Virigina Bureau of Employment Programs11/10/2003
A-6-3(2). The conduct by the employee did not fit under any of the enumerated examples. Consequently, the opinion looked to the catch-all provision of the statute that provided "or any other gross misconduct."
In an effort to provide some structure and guidance to the phrase "any other gross misconduct," the opinion looked to a prior decision of this Court and stated the following:
We have previously defined gross misconduct as:
. . . conduct evincing such willful and wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards or behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute. Kirk v. Cole, 169 W. Va. 520, 524, 288 S.E.2d 547, 550 (1982) (emphasis added) (quoting, Carter v. Michigan Employment Security Commission, 364 Mich. 538, 111 N.W.2d 817 (1961)).
UB Services, 207 W. Va. at 367, 532 S.E.2d at 367 (emphasis in original). *fn11 In view of this definition and other considerations, the decision in UB Services found that the off-duty conduct was gross misconduct that warranted a denial of unemployment compensation.
The definition for "any other gross misconduct" that was recognized in UB Services was overruled by the majority without explanation. It is easy to understand why the majority chose to overrule UB Services. All of the evidence in this case conclusively demonstrated that Mr. Dailey's conduct in lying to obtain employment and operating his employer's motor vehicle without a driver's license, constituted "willful and wanton disregard of [the] employer's interests as is found in deliberate violations . . . of standards . . . which the employer has the right to expect of his employee." The majority could not have reached its desired result in the instant case had it allowed the UB Services opinion to stand.
In view of the foregoing, I dissent. I am authorized to state that Justice Maynard joins me in this dissenting opinion.
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