Opinion
No. 22062.
Date: August 4, 1998.
Appeal From: Labor and Industrial Relations Commission. AFFIRMED.
Sidney T. Pearson III, Meramec Area Legal Aid Corp., Rolla, for Appellant.
Marilyn Green, Cynthia A. Quetsch, Jefferson City, for Div. of Employment Security.
Prewitt, P.J., and Crow, J., concur.
Janice Richardson (claimant) appeals an order of the Labor and Industrial Relations Commission (the commission) that denied her claim for unemployment benefits. This court affirms.
For purposes of this court's review, "[t]he Commission's findings as to facts, if supported by competent and substantial evidence, in the absence of fraud, are conclusive." Simpson Sheet Metal, Inc. v. Labor Indus. Relations Comm'n, 901 S.W.2d 312, 313 (Mo.App. 1995). The evidence is viewed in a light most favorable to the commission's decision. England v. Regan Mktg., Inc., 939 S.W.2d 62, 66 (Mo.App. 1997). Opposing and unfavorable evidence is disregarded. Id.
The appeals tribunal's findings, which the commission adopted, include:
The claimant worked at the employer's restaurant as a prep cook. On July 19, 1997, the claimant was counseled by the employer regarding whether she was properly performing her duties. The employer told the claimant, "This is not working". Thereupon the claimant responded, "If you want to fire me then go ahead". Following additional discussion, the claimant returned to work. Later, the claimant left work never to return.
The commission concluded that "claimant . . . failed to meet her burden of demonstrating that she was discharged as opposed to voluntarily leaving work." It found that claimant voluntarily left her employment as a result of receiving counseling from the employer on July 19, 1997; that there was nothing about the counseling session that "would have granted the claimant good cause to leave work." The commission held that claimant was disqualified for benefits "as a result of her voluntary separation from work."
Section 288.210, RSMo Supp. 1997, prescribes this court's authority with respect to appeals of unemployment compensation orders. This court "may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award; or
(4) That there was no sufficient competent evidence in the record to warrant the making of the award." Id.
Claimant contends the commission's finding that she voluntarily left her employment was not based on "substantial and competent evidence." She argues there was no evidence that she voluntarily left her employment.
Jama Sue Graham testified at the hearing before the appeals tribunal referee. She testified she was president of Jama Sue, Inc., claimant's employer. Ms. Graham testified that claimant's last day of work was July 19, 1997; that claimant completed her shift on that day. Ms. Graham was asked, "Did she quit her employment or was she discharged?" Ms. Graham answered, "I think it was a mutual understanding. She was called into a private room to be counseled."
The referee asked Ms. Graham, "What happened in the counseling session?" Ms. Graham explained that she told claimant, "[T]his is not working." Ms. Graham testified that claimant then told her, "[I]f you want to fire me go ahead, you've harassed me since Day 1." Claimant made additional derogatory remarks to Ms. Graham. Ms. Graham explained, "She continued with comments like this until I suggested that she pray for me and that I would have her paycheck ready the next day — on Monday, the next workday. I feel the outcome could have been different."
Ms. Graham was asked the following questions and gave the following answers:
Q. When you called her in what were you intending to do in —
A. I was —
Q. the session?
A. I was intending to counsel her in the fact that everybody at Bruno's works together. When you make a mistake or — I mean very often if you just say yes, ma'am, I'm sorry, I'll do better next time, rather than be so defensive, that, you know, that it could be worked out.
Q. Was it your intention when you called her in to fire her?
A. No.
The finding that claimant's separation from work was voluntary and did not occur for good cause attributable to her work was supported by competent and substantial evidence. The commission's order is affirmed.