S.S. #: ***********

Employer's Name, Address & Reg. No.

E.R. #: *******

Board Case No.: 1167-BR-14

Referee Case No.: 863-BB-14

Date mailed to interested

parties: October 9, 2014

DECISION OF THE BOARD OF REVIEW

I. CASE HISTORY AND JURISDICTION

By a decision issued on May 8, 2014, the administrator ruled the claimant ineligible for unemployment benefits effective April 20, 2014. On May 12, 2014, the claimant appealed the administrator's decision to the Middletown office of the appeals division. The appeals division scheduled a hearing of the appeal for June 3, 2014, in which the claimant and employer participated. By a decision issued on June 26, 2014, Associate Appeals Referee Micheala L. Mitchell affirmed the administrator's ruling.

The claimant filed a timely appeal to the board of review on July 8, 2014. Acting under authority contained in General Statutes § 31-249, we have reviewed the record in this appeal, including the recording of the referee's hearing.

II. ISSUE

The referee ruled that the claimant was discharged for wilful misconduct in the course of his employment, and thus he was disqualified from receiving unemployment compensation benefits. In support of this appeal from the referee's decision, the claimant reiterates the contentions that he raised at the referee's hearing.

The issue before the board is whether the employer discharged the claimant for wilful misconduct during the course of his employment.

III. PROVISIONS OF LAW

Section 31-236(a)(2)(B) of the General Statutes provides that an individual shall be ineligible for benefits if he or she was discharged or suspended for wilful misconduct in the course of employment. Section 31-236(a)(16) of the General Statutes defines wilful misconduct, for purposes of the Connecticut Unemployment Compensation Act, as:

deliberate misconduct in wilful disregard of the employer's interests, or a single, knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not the result of the employee's incompetence and provided further, in the case of absence from work, 'wilful misconduct' means an employee must be absent without either good cause for the absence or notice to the employer which the employee could reasonably have provided under the circumstances.

IV. FINDINGS OF FACT AND CONCLUSION OF LAW

The board is not bound by the referee's legal or factual conclusions. See Warrington v. Administrator and Andy's Footman, Inc., Board Case No. 1224-BR-88 (Decision on Claimant's Motion to Correct Findings, 8/11/89). The board conducts a de novo review of the record and can make an independent determination of facts and the law. See Middlesex Memorial Hospital v. Administrator, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 312592 (June 27, 1989).

To meet its burden of proving that it discharged the claimant for disqualifying misconduct under the rule violation definition of wilful misconduct, which is set forth in General Statutes §§ 31-236(a)(2)(B) and 31-236(a)(16), the employer must establish that the claimant was aware that he or she was violating the rule. See Regs., Conn. State Agencies § 31-236-26b(a)(3). In the case before us, the employer maintains a policy which provides that employees will be terminated for two at-fault accidents within an eighteen-month period. On December 19, 2013, the claimant was suspended for two days after the picker machine he was driving collided with another picker machine. On April 22, 2014, the claimant drove his picker machine into a pole. The employer subsequently discharged him on April 23, 2014, for violating its accident policy.

The referee found that the claimant knowingly violated the employer's policy because he was aware that two at-fault accidents could result in his discharge. However, for a "knowing" violation to occur, the claimant must not only be conscious of what he or she is doing, but be aware that he or she is in the process of violating an employer rule or policy. See Wiggins v. Wintonbury Care Center, Board Case No. 839-BR-00 (8/11/00); Rebello v. Boys & Girls Village, Inc., Board Case No. 98-BR-09 (3/6/09). The claimant testified that he inadvertently hit a pole softly with the picker machine on April 22, 2014, when he was looking to see which bay to enter. Thus, the claimant was not aware he was violating the employer's policy prohibiting accidents. Instead, this accident resulted from the claimant's negligence.

Misconduct resulting from inefficiency, carelessness, negligence, or errors in judgment lacks the requisite culpability because it does not evince an intentional, substantial disregard of the employer's interest or an intentional disregard of the duties, obligations and responsibilities the employee owes to his or her employer. See Duperry v. Administrator, 25 Conn. Sup. 409 (1964). However, a series of similar incidents of carelessness or negligence of sufficient degree or frequency may be evidence that an employee is indifferent to his or her duties and is acting in intentional or reckless disregard of the employer's interests. See United Parcel Service v. Administrator, 209 Conn. 381, 551 A.2d 724.

To find a pattern of negligence that rises to the level of wilful misconduct, we consider whether an individual has been put on notice that the particular conduct is detrimental to the employer's interests. We also consider the total number of instances of careless or negligent behavior documented in the record, recognizing that three or more similar acts must be identified to find a pattern of conduct. See Urban v. Truegreen Landcare, Board Case No. 905-BR-02 (12/5/02). Other relevant factors we consider are the frequency with which the acts occurred, their nature, the gravity of the violation, and whether mitigating factors are present. See Lauzier v. United Parcel Service, Board Case No. 5-BR-86 (4/26/89). The board has specifically recognized that a series of accidents attributable to negligence which produce substantial employer losses may constitute wilful misconduct. See Chaplin v. The Terminal Taxi Company, 1077-75-BR (8/23/76).

Prior to the final incident, the claimant was involved in another accident with the picker on December 18, 2013, when he took a turn without realizing how close he was to another picker. By the time the claimant saw the other picker, he could not stop his picker and the two machines collided. Although there were no injuries or damage to either machine, we find that the employer has established a second accident caused by the claimant's negligence.

However, because the employer only provided evidence of two accidents resulting from the claimant's negligence, we cannot find a pattern of negligence, such that the claimant's actions rose to the level of wilful misconduct. Although the employer may have had justification for discharging the claimant, we must conclude that the claimant was discharged for reasons other than wilful misconduct in the course of his employment. In so ruling, we adopt the referee's findings of fact, except that we add following to the referee's finding of fact no. 5: " The claimant did not realize how close he was to the other machine. By the time the claimant saw the other picker, it was too late to stop and he collided with the other driver. No injuries or damage to the two pickers occurred." We add the following to the referee's finding of fact no. 6: " The claimant inadvertently hit the pole while he was looking to see which bay to enter."

We modify the referee's finding of fact no. 9 as follows:

9. The claimant had no other accidents during his employment.

V. DISPOSITION AND ORDER

The referee's decision is reversed and the appeal is sustained. The claimant is not disqualified from receiving unemployment compensation benefits effective April 20, 2014.

BOARD OF REVIEW

_______________________________

Lynne M. Knox, Chair,

ES Board of Review

In this decision, Board Member Bruce Zeke Zalaski concurs.

LMK:ECC:mb

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