Dailey v. Board of Review, West Virigina Bureau of Employment Programs11/10/2003
efits. This Court examined the law in light of these horrific facts, and unanimously stretched the definition of "or any other gross misconduct" to include that of the off-duty, off-premises fired employee, thereby denying unemployment benefits. Extreme facts resulted in an extreme rule of law.
The majority opinion in the instant case corrects the extreme nature of the Court's opinion in UB Services, and for the first time gives the Board of Review and courts detailed guidance as to the meaning of "misconduct" and "gross misconduct." As the author of UB Services, I am therefore offended by my dissenting colleagues' position that the decision to overrule the case is "reprehensible." The majority opinion, in superb detail, sets forth the definitions of the two terms used by other states, and uses the law of those other states to craft definitions for use in West Virginia. Because of the expansive nature of the definition of "gross misconduct" in UB Services, overruling the case was the only way to properly refine and discuss our law in this area.
I concur with the majority's well-researched, well-reasoned opinion, and am disappointed by the wholly-unnecessary vitriol of my dissenting colleagues in attacking that research and reasoning. My dissenting colleagues are clearly disappointed with the result of the case, but "sound-bites" chastising the majority for not adopting arguments that weren't even asserted by the parties, or accusing a party of engaging in criminal conduct, are simply inappropriate.
Davis, J., dissenting:
Under the decision reached by the majority opinion in this case, every employer in the State of West Virginia must provide unemployment compensation benefits to employees who are terminated for obtaining employment through fraudulent misrepresentation and engaging in on-the-job criminal conduct prior to being terminated. I find the majority opinion to be offensive to every employer and citizen of West Virginia. Therefore, for the reasons provided below, I dissent. *fn8
I. Mr. Dailey Obtained Employment Through Fraudulent Misrepresentation
The majority opinion recognized that under W. Va. Code § 21A-6-3(2) a person discharged from employment for gross misconduct is not entitled to unemployment compensation. The majority opinion also acknowledged that under W. Va. Code § 21A-6- 3(2) fraud constitutes gross misconduct. One of the major legal flaws in the majority opinion is its inexplicable failure to analyze the issue of fraudulent misrepresentation that existed in this case.
It has been recognized that the concept of fraud is quite broad:
Fraud is sometimes defined as '[a] generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning dissembling, and any unfair way by which another is cheated.'
State ex rel. Medical Assurance of West Virginia, Inc. v. Recht, No. 30840, Slip op. at 7, ___ W. Va. ___, ___, ___ S.E.2d ___, ___ (April 30, 2003) (Davis, J., concurring) (quoting Volcanic Gardens Mgmt. Co. v. Paxson, 847 S.W.2d 343, 347 (Tex.Ct.App. 1993)). This Court has held that "[a]ctual fraud is intentional, and consists of an intentional deception or misrepresentation to 'induce another to part with property or to surrender some legal right, and which accomplishes the end designed.'" Gerver v. Benavides, 207 W. Va. 228, 232, 530 S.E.2d 701, 705 (1999) (quoting Stanley v. Sewell Coal Co., 169 W. Va. 72, 76, 285 S.E.2d 679, 683 (1981)). See also Hager v. Hager, No. 29688, Slip op. at 6, ___ W. Va. ___, ___, S.E.2d ___, ___ ( Novemb
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