Nunn v. Arizona Department of Economic Security

624 P.2d 318, 128 Ariz. 121, 1980 Ariz. App. LEXIS 690
CourtCourt of Appeals of Arizona
DecidedNovember 13, 1980
DocketNo. 1 CA-UB 059
StatusPublished
Cited by1 cases

This text of 624 P.2d 318 (Nunn v. Arizona Department of Economic Security) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nunn v. Arizona Department of Economic Security, 624 P.2d 318, 128 Ariz. 121, 1980 Ariz. App. LEXIS 690 (Ark. Ct. App. 1980).

Opinion

OPINION

OGG, Chief Judge.

Appellant brings this appeal to challenge a determination by the unemployment insurance appeals board of the Arizona Department of Economic Security that she was not entitled to unemployment benefits because she was discharged from employment for misconduct connected with her work. The parties have not taken issue with the findings of fact and therefore our focus is limited to whether the appeals board was correct in its interpretation of the law. We hold that under the facts as determined by the appeals board, claimant’s actions did amount to misconduct as a matter of law.

Appellant filed a claim for unemployment insurance benefits. On September 28,1979, a deputy determined that the appellant was not eligible for benefits under the provisions of A.R.S. § 23-775(2) because she was discharged for misconduct. Appellant appealed the deputy’s determination to an appeal tribunal of the Arizona Department of Economic Security, and a hearing was held. The tribunal rendered its decision affirming the determination of the deputy.

The tribunal in its findings of fact found that appellant Elaine Nunn was discharged on September 5,1979 from her employment with Greater Arizona Savings and Loan Association. Two days before her discharge she had been promoted to the position of savings supervisor. For several months, appellant had shared the duty of maintaining the cash reserve fund of the office where she worked. She would take a check for a specified amount to a bank, cash the check, return to the office, make a complete count of the monies received from the bank, and place the money in the vault where the reserve cash fund was maintained.

On September 5, 1979, appellant took a check to a bank and received payment for the check in the amount of $3,550. She returned to the office with the money and placed it in one of the three limited access booths used by patrons to examine the contents of their safety deposit boxes. In accordance with her past practice, she left the money to put away her purse, expecting to return immediately to count the money. The telephone rang while the appellant was putting away her purse. The appellant answered the phone when she saw her subordinate was occupied with a customer. The call was from an irate customer, and the appellant forgot about the money. Subsequently she engaged in transacting business with other customers, including admitting three customers to the booths to examine the contents of their safety deposit boxes. Approximately 30 to 40 minutes after she had left the booth, the claimant returned to check on the money. The money was gone, and after an investigation, the claimant was discharged from employment.

The tribunal further found that the appellant knew she was not to leave money unattended. On the other hand, she knew of the requirement of immediately answering telephone calls. The appellant was also under the pressure of operating a savings department that was understaffed.

The tribunal made the following conclusions of law:

Arizona Administrative Rules provide in Rule R6-3-51300:
A.l. ... Misconduct generally arises when a worker knowingly fails to exercise ordinary care in the performance of his duties.
A.2. Ordinary care means that degree of care which persons of ordinary prudence are accustomed to exercise under the same or similar circumstances, having due regard to his or other’s rights and safety and to the objectives of the employer.
[123]*123The claimant contends that the loss occurred while she was following procedures and standards approved by the employer. The Tribunal does not accept this contention.... The degree of [the claimant’s] negligence must be determined by viewing [her] awareness of her responsibility for the safety of the money and her reactions to another duty (answering the telephone and attempting to satisfy an irate customer). At some point in this transition of attention the claimant must have been aware that she was gambling with the safety of the money, a gamble not necessary or logical even in view of the employer’s contribution through providing the ideal climate for the loss. The Tribunal concludes the claimant’s failure to place the responsibility of not leaving money unattended above the responsibility for appeasement of an irate customer was a failure to exercise ordinary care.

Appellant timely appealed her case to the unemployment insurance appeals board. The board in its decision entered on March 3, 1980 affirmed the decision of the appeal tribunal. Appellant then filed her notice of appeal bringing the matter before this court.

A.R.S. § 23-775 in part provides:

An individual shall be disqualified for benefits:
2. For the ten consecutive weeks immediately subsequent to first filing a valid claim after he has been discharged for wilful or negligent misconduct connected with his work, if so found by the department, and in addition his maximum benefit amount shall be reduced by an amount equivalent to eight times his weekly benefit amount.

The question of in what circumstances a single act of negligence can constitute “negligent misconduct” is one of first impression in this court.

In Employment Security Commission v. Myers, 17 Ariz.App. 87, 495 P.2d 857 (1972), this court found that an employee’s acts were sufficient to constitute a finding of “misconduct” where he had been informed of the requirement that he must wear a hard hat but had refused to do so. The court defined misconduct as “an act of wanton or wilful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee.” Id. 17 Ariz. App. at 89, 495 P.2d at 859, citing 48 Am. Jur. at 541.

In Arizona Dept. of Economic Sec. v. Magma Copper, 125 Ariz. 389, 609 P.2d 1089 (1980), an employee was discharged because of an unexcused absence after receiving several prior warnings. The tribunal found that the claimant sincerely believed he was giving his employer a proper notice of his absence, and granted unemployment benefits. This court affirmed the decision of the tribunal and in dicta cited the widely used definition of “misconduct” enunciated in Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636, 640 (1941):

[T]he intended meaning of the term “misconduct” ... is limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such a degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.

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Related

Anderson v. Arizona Department of Economic Security
727 P.2d 845 (Court of Appeals of Arizona, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
624 P.2d 318, 128 Ariz. 121, 1980 Ariz. App. LEXIS 690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nunn-v-arizona-department-of-economic-security-arizctapp-1980.