Velez v. Employment Division

EDMONDS, J. Claimant seeks review of an Employment Appeals Board order that determined that she was ineligible for unemployment benefits because she was discharged from her employment for wilful misconduct. ORS 657.176(2)(a). We affirm. EAB found, in part: “(2) The employer did not allow its employees to quarrel or fight while on company property. (3) Claimant [petitioner] knew of and understood the policy. “(4) On December 19, 1989, claimant told a co-worker that the co-worker’s husband was dumb. * * * (6) The co-worker grabbed claimant’s arm and claimant told her to stop. (7) Claimant walked away. (8) The co-worker again approached claimant regarding * * * [the] remark * * *. (9) Claimant repeated the remark and walked away. (10) The co-worker again approached claimant. (11) Claimant told the co-worker she did not want to fight because a fight would embarrass the co-worker in front of the co-worker’s husband. (12) The co-worker persisted. (13) Claimant repeated the reason she did not want to fight intentionally provoking the co-worker to fight. * * * “* * * (17) The co-worker struck claimant. (18) Claimant struck the co-worker in return.” (Emphasis in original.) EAB also found that claimant persisted in deliberately provoking the co-worker. There is substantial evidence to support those findings. As a result, EAB held that this was not an isolated instance of poor judgment or a good faith error within the meaning of OAR 471-30-038(3), which provides: “Under the provisions of ORS 657.176(2)(a) and (b), misconduct is a wilful violation of the standards of behavior which an employer has the right to expect of an employe. An act that amounts to a wilful disregard of an employer’s interests, or recurring negligence which demonstrates wrongful intent is misconduct. Isolated instances of poor judgment, good faith errors, unavoidable accidents, absences due to illness or other physical or mental disabilities, or mere inefficiency resulting from lack of job skills or experience are not misconduct for purposes of denying benefits under ORS 657.176.” (Emphasis supplied.) We agree with that holding. See Bunnell v. Employment Division, 304 Or 11, 741 P2d 887 (1987). [352] Affirmed.