Rascoe v. Employment Division

ROBERTS, J. Claimant appeals from the decision of the Employment Appeals Board denying him unemployment benefits on the ground that claimant voluntarily left work without good cause. The significant Findings of Fact of the Appeals Board are as follows: "FINDINGS OF FACT: * * * (2) In the performance of his duties as a welder, the claimant was working with metals that were prepainted and gave off gas fumes. (3) The Oregon Safety Code requires the wearing of a respirator to protect against these fumes. (4) The claimant had a beard and was requested to trim his beard to allow the respirator mask to fit snugly for ultimate protection in accordance with the safety regulations. * * * (7) He was told that if he did not comply with the safety regulation he would be subject to termination. * * * (10) The fact that claimant could not be allowed to continue in his present position because of violation of safety regulations and the fact that another position could not be found for him resulted in his termination at the commencement of his shift on June 16, 1977.” Based on these findings, the Board concluded that claimant voluntarily left work without good cause. We disagree with the characterization of these facts as "a voluntary separation from work.” We agree with the employer that under those circumstances the claimant was discharged for misconduct connected with his work. ORS 657.176(2) (a). ORS 654.022 requires employes to comply with safety regulations promulgated by the Workers’ Compensation Department. It is undisputed that the Oregon Safety Code requires the use of respirators for the type of work claimant was to perform. The regulations also require that beards be trimmed so as to accommodate the respirator. Oregon Administrative Rules 437-7-4-2. The failure of claimant to comply with these requirements is a wilful disregard of the employer’s interest and thus within the definition of misconduct con [342] nected with his work. Geraths v. Employment Division, 24 Or App 201, 544 P2d 1066 (1976). Affirmed.