Kilgore v. Caldwell

Shulman, Judge. Claimant appeals from a judgment of the superior court affirming the decision of the Board of Review of the Employment Security Agency (which board had, in turn, affirmed the decision of an appeals referee), disqualifying claimant from receiving compensation benefits for a nine-week period, under the authority of Code Ann. § 54-610 (b). Claimant submits that the judgment of the trial court must be reversed in that the evidence failed to support the court’s judgment, as a matter of law. We disagree. Appellant was employed by appellee-employer as a dock worker. His primary duties were those of a checker and stacker (although he was also hired as a part-time driver). His job was to unload freight from certain trucks and load it onto others (depending upon the destination of the freight) for further delivery. The evidence showed that appellant worked for appellee-employer approximately six weeks and that during that time he received two warning letters for misloading freight (on two separate occasions), followed by a letter of dismissal upon the third occurrence of a misdirected shipment allegedly caused by appellant’s improper loading of freight. These letters, admissible under Code Ann. § 38-711 as business records (which appellee was required to issue and record in accordance with its union contract) support the [864] court’s apparent determination that claimant’s "failure to obey orders, rules or instructions or [his] failure to discharge the duties for which he was employed” (Code Ann. § 54-610 (b)) was not the result of claimant’s inability to proficiently perform the duties of his job, but rather due to his carelessness and negligence in such performance. Cf. Smith v. Caldwell, 142 Ga. App. 130 (3) (235 SE2d 547), where the evidence did not demand a finding that employee’s failure to properly discharge his duties was a result of employee’s fault or conscious neglect. Submitted November 5, 1979 — Decided January 7, 1980. Robert H. McDonnell, for appellant. Kenneth L. Millwood, Arthur K. Bolton, Attorney General, George P. Shingler, Assistant Attorney General, for appellees. Since we thus find that the court’s determination was supported by the evidence showing claimant’s conscious neglect of his duties, the judgment of the court below must be affirmed. Judgment affirmed. Deen, C. J., and Carley, J., concur.