Guilford County v. Holmes

WELLS, Judge. Petitioner brings forward two assignments of error, contending that the trial court erred in holding that competent evidence supported ESC’s findings of fact and that ESC had properly applied the law to these facts. We affirm. Findings of fact in an appeal from a decision of the Employment Security Commission are conclusive if supported by any competent evidence. Celis v. N.C. Employment Security Comm., 97 N.C. App. 636, 389 S.E.2d 434 (1990). Petitioner contends that finding of fact 6 is erroneous in stating that Holmes personally delivered messages only when informed by the caller that the message was an emergency. While Holmes did testify that she delivered messages [106] personally under such circumstances, she also testified that she delivered messages when she felt it was important or when the call sounded particularly urgent. Based on our holding below, however, we do not perceive this misstatement to be of any consequence. Petitioner also contends that the trial court erred in holding that finding of fact 7 is supported by competent evidence in the record. This finding of fact was not challenged at the trial court level, however, and is therefore not properly before us. See Matter of Vinson, 42 N.C. App. 28, 255 S.E.2d 644 (1979). We note that petitioner’s argument is that its agent’s testimony, rather than Holmes’, should be believed on this point. It is not our province to determine the credibility of witnesses. See Dunlap v. Clarke Checks, Inc., 92 N.C. App. 581, 375 S.E.2d 171 (1989). In its second assignment of error, petitioner contends that ESC did not properly apply the law to the facts found. Holmes may be disqualified from receiving any benefits if she was fired for misconduct connected with her work. N.C. Gen. Stat. § 96-14(2). She may be disqualified for a period ranging from four to 13 weeks if she was fired for substantial fault connected with her work. N.C. Gen. Stat. § 96-14(2A). The employer has the burden of establishing disqualification. Intercraft Industries Corp. v. Morrison, 305 N.C. 373, 289 S.E.2d 357 (1982). Petitioner bases its arguments that Holmes should have been disqualified at least partially from receiving benefits on its position that she left her work area to deliver routine phone messages after being told not to do so. A violation of a reasonable work rule may constitute misconduct. Id. The crucial inquiry is whether the employee’s actions were reasonable and undertaken with good cause. Id. Good cause is a reason which would be deemed valid by reasonable men and women. Helmandollar v. M.A.N. Truck & Bus Corp., 74 N.C. App. 314, 328 S.E.2d 43 (1985). It is apparent from the properly supported findings of fact that ESC believed Holmes behaved in a reasonable fashion, delivering messages when it was necessary in pursuit of her job duties and informing others when she left. There is nothing in these findings which would mandate a conclusion that Holmes showed a “wilful or wanton disregard of the employer’s interest.” See Walter Kidde & Co., Inc. v. Bradshaw, 56 N.C. App. 718, 289 S.E.2d 571 (1982). Finally, ESC adopted the finding of fact stating that Holmes [107] was fired for alleged inadequate job performance. Inadequate job performance does not amount to misconduct. See Douglas v. J.C. Penney Co., 67 N.C. App. 344, 313 S.E.2d 176 (1984). There is also nothing in these findings which would compel the conclusion that respondent should have been partially disqualified from receiving benefits. N.C. Gen. Stat. § 96-14(2A) defines substantial fault as “those acts or omissions of employees over which they exercised reasonable control and which violate reasonable requirements of the job but shall not include (1) minor infractions of rules unless such infractions are repeated after a warning was received. . . .” The findings state that Holmes continued to leave her work station after being requested not to do so. They also state that she was not aware that her job was jeopardized by this conduct, and she was in pursuit of her job duties when she did deliver messages. It does not appear from these findings that ESC believed Holmes to have done anything which she was forbidden to do, or which harmed petitioner. See Baxter v. Bowman Gray School of Medicine, 87 N.C. App. 409, 361 S.E.2d 109 (1987). This dispute centers on the frequency with which Holmes delivered messages. If, as petitioner suggests in its brief, its request amounted to the spelling out of a rule that Holmes was never to leave her work station, the findings of fact call into question the reasonableness of such a requirement. ESC was not required, therefore, to apply the substantial fault level disqualification to this case. This assignment of error is overruled. Affirmed. Judges Greene and Wynn concur.