Misconduct MC 390
Relations with Coworkers and Customers
This section discusses the principles to be applied when the claimant was discharged due to relations with coworkers or customers or the public.
- Relations With Coworkers
This subsection relates to discharge due to some unsatisfactory relationship of an employee with coworkers. Some of these unsatisfactory relationships involve an employee's deliberate acts which may constitute a wanton disregard of an employee's duty to the employer and substantially injure or tend to injure the employer's interests. This type of misconduct includes inexcusable fighting on the job with other employees, use of abusive or offensive language to fellow employees, or stealing from other employees. (NOTE: If the claimant is discharged for stealing from coworkers, see Dishonesty, MC 140.)
Other unsatisfactory relationships may be negligent in nature and may cause less severe or minimal damage to the employer's interests. This type of conduct usually will not be misconduct unless the employee persists in the conduct after prior warnings or reprimands for similar acts. They include annoying or not getting along with other employees, failing to pay debts to other employees or failing to cooperate with coworkers in performing the work.
It is an employee's obligation to the employer to so conduct himself or herself that he or she can work peacefully and without wrangling with fellow employees. It is obvious, however, that most employees do not maintain continuous perfect relations day after day with fellow employees. Occasional disturbances in human interrelations are normal and to be expected. Such occasional and isolated instances of discord between employees will not constitute misconduct, unless they are flagrant outbreaks.
- Altercation or Assault
Section 1256-39 (c) (1) of Title 22 provides:
Fighting with coworkers on the job is misconduct if the employee has provoked an attack or is the aggressor, regardless of provocation. Fighting on the job is not misconduct if an employee who is attacked on the job without provocation defends himself or herself against an attack.
Thus, if the claimant was discharged for fighting on the job, and the claimant either provoked or initiated the fight, the discharge is for misconduct. This is so even though there were strong mitigating factors, for example, being provoked by the other party. It is not necessary to have a specific employer rule forbidding fighting for such conduct to be considered misconduct. It is also not necessary that the claimant receive prior warnings or reprimands in order to have fighting on the job considered misconduct. Fighting is such a serious and flagrant violation of an employee's obligation to the employer that the first occasion of fighting on the job may be misconduct.
Example - Fighting Under Provocation
The claimant's job was to load containers filled with tile onto hand trucks while a fellow employee unloaded empty containers from the hand trucks. During his work, the claimant started to place a filled container on a truck but found it was already filled to capacity so he deposited the container on a truck of empty containers which his coworker was unloading. The coworker became irritated at this and addressed profane remarks to the claimant, and slammed the container down in front of the claimant, narrowly missing the claimant's fingers. The claimant then retaliated in a burst of temper by hurling pieces of tile at his fellow worker who was injured seriously enough to require medical attention
The claimant engaged in an altercation with another employee during working hours and on the employer's premises and for which he was dismissed. While it may well be that the claimant's fellow employee acted in an unreasonable manner, at that stage the claimant should have referred the matter to the employer for adjustment rather than inflict bodily injury on his coworker. The discharge was for misconduct.
Example - Instigating a Fight:
The claimant worked in a place for cashing checks. She received permission to move her car and, when she returned, she was not buzzed through the security door immediately. She approached a coworker in an angry manner and asked why she was left waiting. The coworker explained that she had been assisting a customer.
However, the claimant insisted that the coworker kept her waiting on purpose, and made angry and threatening statements such as she would keep the coworker waiting in the future, and the coworker had better not do it to her again. The coworker repeatedly told the claimant to leave her alone and asked a supervisor to intervene. The supervisor old the claimant to stop bothering the coworker. However, the claimant kept coming back to the coworker and arguing. Eventually, the claimant called the coworker insulting names of a racial nature, and used profanity. The coworker responded in kind. The claimant then approached the coworker and slapped her. A physical fight ensued, and the claimant was subsequently discharged.
The discharge was for misconduct. The claimant instigated the fight. She continued to argue with the coworker after being told by the supervisor to stop. She aggravated the situation by verbal insults and by approaching the coworker physically.
What if the claimant did not provoke the fight and defended himself or herself against the attack? If this is the case, the discharge is not for misconduct.
Example - Fighting in Self-Defense:
In P-B-167, the claimant was a taxi driver. One evening, while he was waiting to make a left turn, a fellow employee cut him off, turned left and drove into the taxi stand ahead of him. The claimant decided to report the incident to his employer, so he followed in close behind the fellow employee, and walked over to another taxicab driver, to ascertain whether he had observed the incident.
The claimant then proceeded to return to his cab and in passing the fellow employee's cab, was stopped by the fellow employee. The latter apparently wished to prevent the claimant from making a report. The claimant told him that he did not wish to argue the matter and he could take it up with his union representative.
At some point the claimant leaned over his fellow employee's cab to get his name off the clipboard and as he started to move away, the fellow employee grabbed him by the collar and struck a blow which the claimant deflected as he shoved him away. The fellow employee charged him again and in self defense the claimant exchanged blows and knocked the fellow employee to the ground. They were separated by the other drivers. In finding the claimant eligible, the Board stated:
The claimant herein neither sought nor intended an encounter or fight with his fellow employee. He was seeking to obtain evidence to support a report to this employer of that employee's behavior. This was not an improper action on his part, nor one intended to precipitate or provoke a fight. He did not become a participant in the fight until he was struck and attacked and then he intended only to protect himself.
We do not consider this conduct to be a willful or wanton disregard of the employer's interests. . . Nor do we think that the claimant's behavior showed an intentional or substantial disregard of his duties and obligations to the employer. In our opinion, even though the claimant's action of defending himself in a fight during working hours was in violation of the employer's rule and called for dismissal, it was not misconduct . . . .
The claimant was found eligible because, in the opinion of the Board, he did not provoke the fight, and got into the fight only in self-defense.
- Abusive or Profane Language Towards Coworkers
Section 1256-39 (c) (2) of Title 22 provides:
An employee's acts constitute misconduct if the employee addresses a coworker on the job in vulgar, profane, abusive, obscene, derogatory, or offensive language of a vile nature if the language is . . . not within the normal exchange and customary good natured banter between employees.
Thus, if the claimant was discharged because he or she used abusive or profane language which was not within the normal exchange in an establishment, the discharge would be for misconduct.
What is "normal exchange and customary good natured banter" depends on the employment situation where the claimant worked. If the claimant worked as a mechanic with only other men working near by, it would be customary for considerable amounts of profanity to be bandied back and forth. If on the other hand, the claimant worked as a bank teller, it may not be customary to engage in even light profanity with other employees or within sight and sound of customers.
Under "Comments," Section 1256-39 (c) (2) of Title 22 states:
Normal practices in the establishment where the employee is employed and the circumstances under which oral statements were made are relevant to whether misconduct is involved. Language used in a machine shop or a warehouse may not be appropriate language in a bank, department store, or government office. The normal exchange among workers differs according to the occupation. Vulgar language is also used among employees in some occupations as friendly banter. The circumstances under which the employee makes oral statements are taken into consideration.
Example - Language Not Beyond Usual "Give and Take":
In P-B-218, the claimant was transferred to another department because he had an altercation with the lead man during which he used abusive and profane language. On the day of dismissal, the claimant was unable to respond immediately to the request of a woman employee for certain supplies. Believing that this employee had lodged an improper protest with her superior, later in the day, when he happened to see the woman employee, he remarked, "Some people sure are asinine." A complaint was made. The claimant's supervisor charged him with using abusive and profane language and gave him the option of resigning or being discharged. In finding the claimant eligible, the Board stated:
It is our opinion that the record does not support a finding that the claimant in fact used abusive and profane language to fellow employees as contended by the employer. The remark which was the immediate cause of his discharge did not go beyond the usual give and take between employ employees in an industrial establishment. As such, it did not show a wilful or wanton disregard of the appellant's interest nor an intentional and substantial disregard of the claimant's duties and obligations to his employer.
The claimant was found eligible because the Board did not consider his remark abusive and profane. In the opinion of the Board, the remark was nothing more than normal "give and take" in an industrial establishment.
As Title 22, Section 1256-39 (c) (2) points out, the circumstances under which the abusive or profane language is used also need to be considered.
Example - Abusive Language, Extenuating Circumstances:
The claimant was a warehouseman, and was discharged for the following incident. While he was working in the warehouse, a male employee drove a forklift down the aisle and almost hit the claimant. Because of the near miss, the claimant told the fellow employee, the forklift operator, to watch out. A girlfriend of the fellow employee, a married man, was standing nearby when the claimant told the fellow employee to watch out. She shouted at the claimant, "Shut up." The claimant’s immediate response to her was "Shut up, whore!" He was discharged for using obscenities.
The claimant testified that he used obscenities because he was still emotionally upset at the near miss by the forklift operator, and he resented the forklift operator's girlfriend coming to the defense of the forklift operator. The claimant also testified that he never used such language or any profanity before, and that profanities and obscenities were uttered by employees in the warehouse area on occasions.
The discharge was not for misconduct. The claimant's use of obscenities was due to his being emotionally upset. Moreover, the incident was an isolated one, and obscenities were not uncommon in the area where the claimant worked.
What if the employer has established a well known company rule prohibiting the use of profane words? An employee would generally be discharged for misconduct if he or she ignored this rule and repeatedly used profanity.
Example - Repeated Use of Profanity:
The claimant worked as a bellman for a first class hotel. The claimant was charged with the responsibility of picking up clients at the airport. The claimant was heard to use the terms "goddamn" and "hell" over the radio connecting the van that he was driving with the central office. This conversation could be overheard by hotel guests and vendors and "goddamn" and "hell" were unacceptable language to be used.
The employer counseled the claimant regarding the proper language to be used in the workplace and warned him in this regard. In the final incident, the claimant called a coworker a bitch after the coworker had given a fellow employee instructions about the use of the employer's PBX telephone, and it was loud enough for others to overhear. The coworker reported the incident to the employer. The claimant was discharged for the incident.
The discharge was for misconduct. The claimant's repeated use of unacceptable language, even after warnings, evidenced a disregard of his duty to the employer.
What if a claimant contends that he or she used the abusive language jokingly? In such a case, if the person to whom the remarks were made did not take the language seriously, the claimant's discharge would not be for misconduct.
Example - Abusive Language Not Taken Seriously:
The claimant was alleged to have threatened a fellow employee with a hammer. The claimant and his coworker were working at adjacent machines. According to the coworker, the claimant who was working with a hammer stated to him, "If you go on talking, then this hammer will be going to your head." The coworker did not observe whether the claimant appeared to be in earnest but thought that the claimant might have been just joking. The claimant denied making the threat. However, the remark became known and the claimant was discharged despite his statement that he had not made any threat.
Even assuming that the incident occurred, the claimant’s coworker appears to have considered the matter to have been minor and inconsequential. In fact, he did not bother to report the incident and statements indicated that he had reason to believe the claimant was merely being facetious. Certainly the evidence falls short of establishing that the claimant’s temperament and attitude was such as to endanger either the employer's interest or the physical well-being of his fellow workers. The claimant’s discharge was not for misconduct connected with his most recent work.
What if the person to whom the abusive remarks were made did not interpret them in a joking sense, and was intimated and distracted from his or her work because of the remarks? If this is the case, the claimant's discharge would be for misconduct.
Example - Abusive Language Taken Seriously:
The claimant had waved a pocket knife at a fellow worker and stated, "This blade would reach your heart. You could be lying on the floor dead." The claimant also said he had been "joking" at the time of the incident, that there was no cause for disagreement, that he subsequently apologized to the coworker. He did however acknowledge that what he had said could have been taken as a threat.
The claimant's action in threatening a fellow worker while at work constituted a breach of the obligations arising out of the employment relationship, tended to injure the employer's interests in maintaining order, tended to intimidate a fellow employee, and tended to distract employees from their work. Even though the claimant said he had been joking, threatening a coworker would be misconduct.
Example - Threatening a Coworker:
The claimant worked in a hardware store. He was discharged for harassing and threatening a coworker. The claimant took the coworker to a darkened area of the store and told the coworker, "I can make things really hard for you." The coworker felt very intimidated and fearful, and could not work the rest of the day. When the employer learned about the incident, the claimant was discharged, in accordance with the employer policy that threatening or intimidating coworkers will result in immediate discharge without prior warning.
The discharge was for misconduct. The actions of the claimant went beyond the usual give and take between employees. The claimant should know that harassing and intimidating a coworker would injure the employer's interests.
- Annoyance of Coworkers
Section 1256-39 (d) (1) of Title 22 provides:
An employee who is discharged for unjustifiably annoying coworkers by frequent bickering or by horseplay on the job, after prior warning or reprimands for similar conduct, is discharged for misconduct.
It is considered the responsibility of an employee in the usual employer-employee relationship to get along with other employees to the best of his or her ability. However, it is unlikely that anyone person can have continual harmonious working relationships with everyone. Isolated instances of minor verbal disagreements or "spats" among employees are generally overlooked by all concerned including management or supervision. Nevertheless, when the employee had been warned or reprimanded about his or her unsatisfactory conduct, persistence in such conduct would be misconduct. Moreover, if the claimant's conduct violated a known company rule, warnings, and reprimands may not be necessary to establish misconduct.
Example - "Bickering" on the Job:
The claimant, an elevator operator and relief starter, was frequently involved in intermittent "bickering" with her fellow employees. The claimant was warned that her argumentative attitude would have to improve or she would be discharged. When it did not improve, the employer discharged the claimant for causing trouble.
The evidence in this case indicates that the claimant’s course of conduct was such as to raise an inference that she had an argumentative nature and a proclivity for bickering. While the particular incident which immediately preceded the claimant’s discharge may have been minor and inconsequential, it was but the last in a line of such occurrences after a number of warnings. The discharge was for misconduct.
Example - Horseplay Despite Repeated Warnings:
Despite repeated warnings, the claimant persistently engaged in horseplay and dangerous conduct to the annoyance of his fellow employees. One employee quit and gave as one of his reasons the horseplay and general unpleasantness of the claimant. Two of his fellow employees complained to the employer that they did not wish to work with the claimant because he "clowned around" and would not do his share of the work. The employer discharged the claimant four days later.
The claimant, over a considerable period of time, tampered with his employer's equipment and engaged in horseplay dangerous to himself and fellow employees. He persisted in this course of conduct despite repeated warnings. Although some of the incidents standing alone may have been too minor and inconsequential to constitute misconduct, consideration of the entire series of incidents and the claimant’s disregard of repeated warnings and instructions must be considered. The discharge was for misconduct, the claimant deliberately disregarded standards of behavior which the employer has the right to expect.
"Not Getting Along" With Coworkers
What if the claimant was discharged because he or she could not get along with fellow workers? A discharge solely for this reason will not be for misconduct.
Example - Inability to Get Along With Coworkers:
In P-B-192, the claimant was discharged because two fellow employees informed the employer that he must either dismiss the claimant or lose their services. Admittedly, the claimant was a man of quick temper. As the claimant himself put it: "I get thoroughly disgusted with situations, and people think I have a bad temper . . . I don’t have to be in a hot temper to strike a man. If I want to straight-out a situation I get disgusted and don't care what happens." The employer admits that he discharged the claimant, asserts that he did so because the claimant was a troublesome employee. The Board found the claimant eligible, and stated:
The primary reasons which motivated the employer in discharging the claimant were the latter's "unfortunate disposition" and his alleged inability "to get along with his fellow employees." Standing alone, these reasons do not fall within the definition of misconduct. . . While the claimant's conduct on the job may have been unsatisfactory, and though he may be chargeable with errors of discretion in his relations with his coworkers, there in nothing to show that . . . the claimant deliberately followed a course of action which was in wilful or wanton disregard either of his obligations as an employee or of the interests of his employer.
What if the claimant was discharged because the fellow employees disliked him or her for personal reasons? For example, they may object to the claimant's political expressions, or religious beliefs, or race or certain mannerisms he or she has. Employers will sometimes discharge such a disliked employee "to keep peace in the family." If this is the sole reason for discharge, the discharge would not be for misconduct.
- Debts to Coworkers
Section 1256-39 (d) (2) of Title 22 provides:
A worker's failure to pay a debt due to a coworker is a personal matter not affecting the employer's interest. However, if the nonpayment of the debt results in on the job fights or disputes, the employer's interest is affected and whether misconduct exists is determined under the interpretations set forth under . . . applicable provisions of this section.
The borrowing of money from a fellow employee is a purely personal matter which generally is of direct concern only to the two individuals involved. Likewise, the payment and collection of the resultant debt concerns only the two individuals. There is nothing inherent in such borrowing, nor is there anything inherent in the payment or nonpayment of such a debt, that could tend to injure substantially the employer's interest. Consequently, if an employer should discharge an employee solely because the employee had failed to pay a debt to a coworker, the discharge would not be for misconduct.
What is the nonpayment of debt led to bad relations between the two employees, and the claimant was discharged for it? A discharge solely for such a reason would not be for misconduct because the employer’s interests cannot be injured substantially solely by bad relations between employees.
Example - Bad Relation Caused by Debts to Coworkers:
The claimant borrowed from a coworker two hundred dollars for repairing his car and promised to repay the coworker at the next payday. When the next payday came, the claimant, however, did not repay the coworker, saying that he needed the money for something else. This led to a dispute between the claimant and the coworker. After three weeks, when the claimant still did not repay the debt, the coworker informed the employer that the dispute was so severe that he would not work with the claimant. The coworker gave the employer the ultimatum that either the claimant must be discharged or he would quit. The employer decided to retain the services of the coworker and discharged the claimant.
The discharge was not for misconduct. The claimant was discharged because of a dispute with another employee concerning a matter unrelated to the employer's business. The employer made a decision to discharge the claimant based on a belief that the other employee was more valuable than the claimant.
What if the bad relations led to garnishment of the claimant's wages or altercations or other incidents which would tend to injure substantially the employer's interest? In those cases, whether misconduct exists or not will be determined by the guidelines set forth in other parts of this volume for these incidents. For example, for wage garnishment, see Off the Job Conduct, MC 350.
Section 1256-39 (d) (3) of Title 22 provides:
Ordinarily an employee's failure to cooperate with coworkers on the job in isolated instances would not be misconduct in the absence of prior warnings or reprimands.
"Failure to cooperate with coworkers" is a very intangible phrase. How the "failure to cooperate" was manifested needs to be determined. An example of uncooperative attitude is an employee's refusal to assist another employee in the performance of some task, reason being "It wasn't my responsibility.
The end product of an employer's business, whether the end product be service or things, is usually the result of many employees working together. When one employee refuses to assist another, he or she is in effect hindering the employer's end product. Hence, he or she would be in disregard of the employer's interests.
However, for the discharge to be for misconduct, the employer needs to warn the claimant about his or her uncooperative attitude. Isolated instances of noncooperation without prior warnings and reprimands would not be misconduct.
What if the employees' duties are clearly and specifically defined and they are forbidden (usually by collective bargaining agreements)to go beyond the scope of their duties? Under these circumstances, if an employee refused to assist another in the performance of a certain task because he or she was forbidden to perform that task, the discharge would not be for misconduct.
It may also be necessary to determine whether the claimant has the ability or knowledge to assist the coworker. If the claimant is incapable of helping the coworker, his or her discharge for failure to assist the coworker would not be for misconduct.
- Altercation or Assault
- Relations With Customers and the Public
This discusses eligibility principles involved when the claimant was discharged because of alleged unsatisfactory relations with the employer’s customers or the public.
It is of unusual importance to employers who rely on public acceptance of their product or services to have their employees serve the public in such a manner that the customer is satisfied and pleased with that service and will patronize the firm again. For business establishments relying on repeat contacts by their customers, this is of singular importance to the employer. Restaurants, markets, department stores, auto shops and dozens of other retail outlets rely to a large degree on "repeat" customers. If the customer is dissatisfied with the service of the employees of that firm, or if the customer has been shown discourtesy, the employer is virtually certain to suffer financially and no further investigation relative to the "tendency to injure" needs to be made.
- Substantiation of Discourtesy
An employer may learn about the claimant's discourtesy through complaints filed by customers. A discharge resulting from customer complaints may not necessarily be misconduct. Fact finding is required to determine whether the claimant is really discourteous to customers. If the facts do not establish that the claimant is discourteous, the discharge would not be for misconduct.
Example - Discourtesy Not Established:
The claimant, a cab driver, had been discharged for allegedly making improper and suggestive remarks to a group of women whom he was driving from their place of work to their homes. It was undisputed that the customers filed a complaint to the employer, but the employer failed to submit any evidence concerning the truth of the allegations. The claimant, whose behavior on the job had never previously been called into question, denied the charges unequivocally. He stated that the passengers were noisy and boisterous and it was they who made insulting remarks.
Clearly, discourtesy to passengers by a taxicab driver would constitute misconduct, however, the fact of discourtesy has to be established. Although it is undisputed that a complaint was filed in this case, this circumstance is wholly insufficient to establish the truth of the allegations contained therein. The employer was given an opportunity to present evidence as to the truth of such allegations, but failed to do so. The discharge would not be for misconduct.
- Friction With Customers
In situations where an employee is constantly dealing with the public, some friction or difficulties between the employee and customers or the public will occur. The friction or difficulties may also be caused by the customers or the public. However, even if "goaded" or "baited," the employee owes an obligation to the employer to remain courteous. Failing that may result in a discharge for misconduct.
Example - Difficulties With Customer:
The claimant, a security guard, was assigned to a post in an office building (the employer's client) and worked from twelve midnight until 8 a.m. For about four months, the claimant had difficulties with a tenant of the office building. The office employee regularly complained to the claimant that he (the claimant) should deliver a newspaper to his floor. The claimant consistently refused because his immediate supervisor, the sergeant, had instructed him not to deliver the newspaper.
On the last day of work, at about 7:10 a.m. the claimant became involved in a verbal altercation with the tenant with whom he had difficulties in the past. Both sides used vulgar or obscene language. The altercation occurred in the presence of another tenant. Later that morning, at around 10:30 a.m. the supervisor telephoned the claimant and informed him not to return to that assignment as the result of the confrontation. The claimant became angered, returned to the office building to confront the tenant and directed vulgarities and obscenities to the tenant. As a result of the second confrontation, the claimant was discharged.
The discharge was for misconduct. Even though the claimant might have been angered or frustrated at the tenant's demand or confrontation, he was obligated to exercise temperance and direct the tenant’s complaint to his supervisor. Instead, the claimant engaged in a verbal dispute highlighted by obscenities and vulgarities in the presence of another tenant. Furthermore, he returned, against the supervisor’s order, to the building to confront the tenant a second time.
- Isolated Instances of Discourtesy
Title 22, Section 1256-38 (b) (3) provides:
An employee's discourtesy to the public is misconduct if the acts of discourtesy continued after prior warning or reprimand and the employee has the ability to control the performance. Usually a single or isolated instance of discourteous behavior is not misconduct, but the degree of discourtesy to a patron may be so serious that a single instance alone is misconduct.
Thus, a discharge for a single instance of discourtesy to customers is generally not for misconduct.
In Silva v. Nelson, the court held that a single instance of an offensive remark to an employer, attributable to hot headedness rather than deliberation, is not misconduct. See Insubordination, MC 255, for a discussion of this court case. Although the Silva case deals with an offensive remark to the employer, the same principle should apply to an offensive remark to a customer.
Example - Single Instance of Discourteous Behavior:
The claimant worked for an automobile dealership for about three years as a sales manager.
He was negotiating a sale with a particular customer. The discussion became heated when the customer demanded the claimant make a sale below invoice. When the claimant refused, the customer became obnoxious and criticized the employer's sales force as well as the claimant. In the heat of the argument, the claimant lost his temper and used a four-letter word at the customer who retorted in kind. They both laughed at that point, and the claimant told the customer to come in to complete the deal. The customer went instead to the vice-president and complained in the presence of all in sight. The claimant was discharged for the incident.
The claimant had no previous similar incidents with customers.
The discharge was not for misconduct. Although losing one's temper when dealing with any customer is never condoned, in this instance, the offensive words were uttered under circumstance of provocation and the incident was isolated. There were no other incidents of using profane language to customers. The Silva principle applies.
- Multiple Acts of Discourtesy
According to Title 22, Section 125638(b)(3), cited in B. 3. Isolated Instance of Discourtesy above, if acts of discourtesy continue after warnings, and if the claimant has the ability to control his or her performance, the discharge would be for misconduct.’
Example - Arguments With Customers Despite Warnings:
The claimant, a truck driver's helper for a brewery, was discharged because he was inclined to argue both with customers and fellow workers. On the day of discharge the claimant became engaged in an argument with a customer and then with the truck driver. The claimant was discharged because of his inability to work without causing trouble. The claimant had been warned a number of times and the records showed that the claimant had previously been demoted from truck driver to helper because of his quarrelsome nature. Even though the incident which led to his discharge might have been minor and inconsequential, it was but the last in a line of such occurrences. The discharge was for misconduct.
While an employer must take his workers as they come, and must accept their abilities and temperaments as they exist, if the temperament of a particular worker is such as to endanger the employer's interests and if the worker, after warnings, persists in his improper behavior the employer has no other choice than to discharge the worker.
Example - Mistreating Customers, Prior Warnings:
The claimant worked as a nurse's aide for a health care center for about seven months. The employer had warned him several times about his poor work performance regarding patient care. One counseling resulted from a patient complaint that he placed a pillow over the patient’s face. On the last day of work, the employer received another complaint. The employer conducted an investigation and found the claimant had handled a patient roughly. He fed a female patient very hot food and when she spit it out the claimant took away her tray. When a family member of the patient complained, the claimant told him to feed the patient himself.
The discharge was for misconduct. The claimant had been warned regarding his care of patients. He continued to treat patients roughly.
Where there are no prior warnings or reprimands regarding the claimant’s discourtesy, there would be no misconduct.
Example - Absence of Warnings:
The claimant, an automobile parts salesman, was discharged for being "short tempered and argumentative." The employer provided the following substantiated facts:
- The claimant engaged in an argument with a customer about a paper gasket about three months prior to his separation.
- About two months before the claimant was discharged, a customer complained that the claimant refused to special order a small part which was not in stock.
- The claimant's supervisor stated that there was one customer who did not wish to be waited on by the claimant.
- An operative of an investigative agency serving the employer contacted the claimant about three weeks before his discharge and reported that the claimant greeted him with, "Hey, Mack, don’t play with those elements unless you're going to buy one." The operative reported the claimant was "the rudest man he had ever bought parts from" and that his greeting had been insulting
- The same operative contacted the claimant five days later and reported that the claimant's appearance was unsatisfactory, but that he was prompt in serving him, that his attitude was poor and indifferent and that his sales ability was poor.
- Two other operatives reported substantially the same as the first and, in addition, reported that the claimant "did not have the personality that is required by a parts man or any one serving the public."
After the last operative report, the claimant was discharged. The claimant's supervisor, however, had not discussed the claimant’s attitude or performance with him or indicated any need for correction or improvement.
A careful review of the evidence does not disclose more than inefficiency or unsatisfactory performance on the part of the claimant. The evidence, with the exception to one instance where the employer alleges the claimant refused to order a part for a customer, tends to support a finding of inefficiency and unsatisfactory attitude which is not of a degree to constitute misconduct.
In view of the fact that the employer had not reprimanded or otherwise instructed the claimant regarding his conduct, it could not be shown that the claimant intentionally and deliberately disregarded the employer's interests. The discharge would not be for misconduct.
- The claimant engaged in an argument with a customer about a paper gasket about three months prior to his separation.
- Substantiation of Discourtesy
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