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Discharge - Sections 8-1002, 8-1002.1, 8-1003 - Maryland Unemployment Decisions Digest - Appeals

Discharge - Sections 8-1002, 8-1002.1, 8-1003 continued

III. Aggravated Misconduct
In 1992, the legislature enacted Section 8-1002.1, which created a new category of misconduct entitled "Aggravated Misconduct." Aggravated misconduct was defined as "intentional conduct by an employee in the workplace that results in: (i) a physical assault upon or bodily injury to the employer, fellow employees, subcontractors, invitees of the employer, members of the public, or the ultimate consumer of the employer's product or services; or (ii) property loss or damage to the property of the employer, fellow employees, subcontractors, invitees of the employer, members of the public, or the ultimate consumer of the employer's product or services." A disqualification for aggravated misconduct continued until the claimant earned 20 times his weekly benefit amount in covered employment. Additionally, wages earned from an employer harmed by the claimant's aggravated misconduct were deleted from the calculation of the claimant's weekly benefit amount.

In 1995, the legislature repealed Section 8-1002.1 and reenacted it with amendments. The definition of aggravated misconduct was changed to "behavior committed with actual malice and deliberate disregard for the property, safety or life of others that: (I) affects the employer, fellow employees, subcontractors, invitees of the employer, members of the public, or the ultimate consumer of the employer's product or services; and (II) consists of either physical assault or property loss or damage so serious that the penalties of misconduct or gross misconduct are not sufficient." A disqualification for aggravated misconduct continues until the claimant is reemployed and earns 30 times his weekly benefit amount in covered employment. Wages earned by a claimant from a base period employer against whom the claimant committed aggravated misconduct are no longer deleted from the claimant's wage base for purposes of determining the claimant's weekly benefit amount. The amendment to Section 8-1002.1 applies to all new claims filed on or after October 1, 1995.

The claimant repeatedly processed unauthorized transactions, converting approximately $52,000.00 of the employer's funds to her own personal account without explanation or justification and spent approximately $42,000.00 of those funds. The claimant's actions support a finding of aggravated misconduct. Fauntleroy v. American Assoc. for Adv. Scien., 00089-BR-98 (1998).

A claimant ordered a customer of the employer to make three checks payable to himself (the claimant) for the sale of employer's property. The claimant cashed and converted one of the checks to his own use. The Board found that such behavior is sufficient to sustain a discharge for aggravated misconduct. Smith v. Madison Warehouse Corp., 387-BR-01 (2001).

A claimant's mismanagement of employer funds lacked the requisite element of "actual malice" to rise to the level of aggravated misconduct. The "mismanagement of funds" was held to be a "breach of duty and a wanton disregard of the standard of behavior that the employer had a right to expect supporting a finding of "gross misconduct". Phillips v. Community Services of Maryland, Inc., 545-BR-01 (2001).

When a claimant sold a television off of the employer's truck contrary to all employer rules and regulations, the Board found the discharge to be for aggravated misconduct. The Board ruled that the value of the property is not the sole determining factor. Requisite "intent" existed when the claimant sold the property belonging to another. Edwards v. Thrift Stores of Washington, D.C. Inc., 01622-BR-96 (1996).

Where a claimant "without provocation slapped a co-employee on both sides of his face and pushed co-employee into a trash can, the claimant's actions constitute aggravated misconduct. Yeager v. Trustee-Sheppard Pratt Hosp., 02782-BR-96 (1996).

The claimant, a licensed pharmacist, was discharged by the employer for the theft of a controlled dangerous substance which had been the property of the employer (a hospital). The Board determined that the act was done with malice and that the property loss was so serious that the penalties of misconduct or gross misconduct were insufficient. A penalty for a discharge for aggravated misconduct was invoked. Kochhar v. Holy Cross Hospital of Silver Spring, Inc., 00866-BR-97 (1997).

A claimant who was discharged for striking a supervisory co-worker in the face was discharged for aggravated misconduct. The Board determined that the act of the claimant was done with malice. In reaching its conclusion, the Board attached no merit to claimant's assertions that he was not the aggressor in the situation and was provoked. Morgan v. Washington Overhead Door, Inc., 01191-BR-97 (1997).

IV. Connected with the Work
An employer must demonstrate not only that a claimant committed misconduct, but also that the misconduct was "connected with the work." In determining whether an employee's actions are connected with the work, the following circumstances should be considered:

1) Whether there was a breach of duty to the employer;
2) Whether the act occurred during the hours of employment;
3) Whether the act occurred on the employer's premises;
4) Whether the act occurred while the employee was engaged in his work; and
5) Whether the employee took advantage of the employment relation in order to commit the act.
Employment Security Board v. LeCates, 218 Md. 202, 145 A.2d 840 (1958).

The Court in LeCates, supra, stated that "...the legislature did not intend to limit misconduct 'connected with' the employee's work to misconduct which occurred during the hours of employment and on the employer's premises. If it had, the language used would have undoubtedly expressed that intent. Since no such limitation was indicated, it is obvious the provisions of the statute were intended to deny unemployment compensation to a claimant who was discharged -- and hence unemployed -- because of misconduct regardless of when or where it occurred so long as such misconduct was in law connected with the employee's work."

The Court also stated that "the law writers generally agree that a breach of duty to the employer, although not in itself sufficient, is an essential element to make the act one connected with the work."

In order to meet the "connected with the work" requirement, the misconduct must be incident to the work or directly related to the employment status. The mere fact that the misconduct adversely affects the employer's interests is not enough. The term "work" is not restricted to actual services an employee is hired to perform, but it may properly comprehend other obligations, such as the duty to obey proper orders, or to refrain from absenteeism. There is a general duty of loyalty to one's employer. Fino v. Maryland Employment Security Board, 218 Md. 504, 147 A.2d 738 (1959).

Generally, conviction of a crime committed outside of work hours, away from the employer's premises and not connected in any other way with the employment is not considered to be misconduct connected with the work. However, certain types of employment, such as employment as a police officer, have been found to give rise to a continuing duty to refrain from criminal acts. A criminal act committed by a police officer away from work is considered to be connected to the employment. Correctional officers, security personnel, fire fighters and certain other employees also have a continuing duty to refrain from criminal activity away from work, at least where the criminal activity is related to their job responsibilities.

Misconduct that occurred before employment or after discharge is not connected with the work.

A. Breach of Duty

1. Police Officers
The claimant police officer, while off duty and on leave, was involved in an accident on a shopping center parking lot and failed to leave identifying information on the damaged vehicle as required by Maryland law. The claimant made false statements in reporting this incident to her superiors. The claimant was tried and given probation before verdict on the charge. The claimant was discharged. A police officer has a continuing duty to her employer to refrain from committing statutory violations which show moral turpitude. The commission of such an act, even while off duty, is a deliberate and willful disregard of standards of behavior which the employer has a right to expect and constitutes gross misconduct. Johnson v. Baltimore City Police Department, 952-BH-83.

The claimant was a police cadet. She was required to take a physical that included a drug screening test. The claimant's urine test showed that she tested positive for cocaine. As a police cadet, the claimant has a continuing duty to the employer to refrain from violation of criminal laws. Her ingestion of cocaine, even if not done during work hours, constituted a serious violation of this duty. This was held to be gross misconduct. Handy v. Baltimore City Police Department, 1059-BH-90.

2. Correctional Officers and Security Personnel
The claimant correctional officer was charged with possession of narcotics and related paraphernalia. Although a correctional officer may not have as compelling a duty to refrain from criminal acts as a police officer, gross misconduct exists where the claimant's actions are deliberate and willful and are related by their very nature to the claimant's job duties. Skelton v. Maryland House of Correction, 111-BR-84.

3. Fire Fighters
An off duty fire fighter's conviction for theft was a breach of duty owed to his employer. Fire fighters have access to homes in the course of their duties. The claimant was discharged for gross misconduct. Willett v. Civil Service Commission, 8-BH-87.

4. Other Employees
The claimant file clerk was discharged because he was twice convicted of third-degree sexual offenses involving illegal activity with minor children. The incidents leading to the convictions did not occur during working hours, on the employer's premises, or while the claimant was engaged in work. The claimant was able to continue to work with the suspended sentence, and the discharge was not for absenteeism. While the claimant's actions were misconduct, they were not connected with the employment, therefore, no disqualification could be imposed. Hubatka v. Department of Health and Human Services, 1-BH-83.

The claimant was employed as an employee relations counselor with duties including counseling of employees with drug and alcohol problems. Therefore, the claimant's use and smuggling of marijuana, although occurring off duty and off the employer's premises, constituted gross misconduct connected with the work. Gaumnitz v. Social Security Administration, 937-BH-85.

The claimant worked in a clerical position inside the jail and had daily contact with inmates. The claimant was arrested for possession of heroin while off duty and received "probation before judgment" for the criminal charge. The claimant was discharged for gross misconduct. Although the claimant held a clerical position, her daily contact with inmates was sufficient to hold her to a duty to refrain from using illegal drugs. Bailey v. Jail Board, 716-BR-89.

While negative comments about one's job conditions are generally not considered misconduct, in this case, the claimant's comments were a direct violation of his duty to his employer and the residents he was there to counsel. He knew or should have known that his remarks would severely undermine the morale of the residents. The claimant was discharged for gross misconduct. Fetty v. Changing Point, Inc., 918-BR-89.

B. Off Duty Activity
At a company picnic in a public place, the claimant became involved in a fight with another patron of the establishment over that patron's use of inappropriate language in the presence of the claimant's children. The claimant was discharged for violating the employer's rule prohibiting fighting "on company time and premises." The claimant was not in the course of his employment at the time of the incident; rather, he was in the course of a social activity with persons with whom he happened to work. Therefore, the claimant's act was not connected with the work and no disqualification was appropriate. Hart v. Vista Chemical Company, 391-BH-85.

After work hours, the claimant accompanied the employer's truck driver, knowing that this driver was drinking and even supplying the driver with drinks. When four accidents resulted, the claimant was discharged for encouraging the other employee to violate the rules and for trying to cover up the incident. The claimant was discharged for gross misconduct. Thomas v. Turnbull Enterprises, Inc., 26-BH-88.

The employer told the claimant that other workers had said that he was intoxicated and uncooperative on the job. The claimant began angrily approaching coworkers, asking who had reported him to the employer. This behavior culminated in a physical assault on a coworker, but this took place after hours and off the work premises. The assault was incident to the work. Misconduct need not take place during the hours of employment or on the work premises in order to be work-connected. Stinson v. Towson Inn Restaurant Corporation, 1602-BR-93.

C. Criminal Activities and Convictions
The claimant school bus driver was arrested while off duty and charged with possession of drug paraphernalia and a controlled dangerous substance. The employer presented documentary evidence in the form of an affidavit by a police officer attesting to the claimant's possession of a controlled dangerous substance. The claimant was not present at the hearing, but the affidavit was sufficient evidence upon which to conclude that the claimant did in fact commit the act in question. Although the claimant committed the act off duty, as a school bus driver, she had a duty to refrain from using or possessing controlled dangerous substances even while off duty. The claimant was discharged for gross misconduct. Carroll v. Montgomery County Public Schools, 201-BH-88.

The claimant was suspended due to the employer's doubts about his job suitability because the claimant listed a prior handgun violation conviction on his application. There was no misconduct connected with the work. Sayyed v. Guide, 604-BR-89.

The claimant was discharged due to a loss of insurance bonding resulting from a charge of robbery. The claimant had not been convicted at the time of the discharge. There was no misconduct connected with the work. Fitzgerald v. Marten's Motors, Inc., 904-BH-89.

The claimant was discharged when he had been charged with the crime of possessing a controlled dangerous substance. He was not convicted. At the time the claimant was suspended, the employer had no information or evidence that the claimant had committed any misconduct which was connected to the work other than the criminal accusation. The Board concluded that the claimant's actions did not constitute misconduct connected with the work. Ervin v. Anne Arundel County Public Schools, 02238-BR-97 (1997).

D. Conduct Prior to Employment
Misconduct which took place prior to the employment is not connected with the work. Jacobs v. New Covenant Church of God, 1524-BR-92.

The claimant was discharged because the insurance company would no longer cover him, due to conditions that the employer knew at the time of hire, was well aware of all along and had tolerated for quite some time. This is not misconduct within the meaning of Section 8-1003. Weidman v. Village Import Cars, 223-BR-91.

The claimant applied for a position as a parking control agent. On her application, she indicated that she did have a criminal conviction. The claimant was hired but the employer reserved the right to have the claimant's background checked. Based on the background check, the employer refused to commission her as a parking control agent. The employer was then required to discharge the claimant, which it did. The claimant had worked there for four months. There is no evidence that the claimant falsified her application, nor is there any evidence that she did any actions that would amount to misconduct after she became employed. Allen v. Department of Transit and Traffic, 722-BR-91.

The claimant took a pre-employment physical on April 5th, began work on April 6th and was discharged on June 14th because the lab test results from the physical showed the presence of a controlled dangerous substance in her body on April 5th. The claimant had, in fact, used painkiller pills prescribed for her father. The misconduct was not connected with the work, since there was no evidence that the claimant was intoxicated by the use of drugs, or that the drugs were in the claimant's system on any day of employment. Thompson v. East Coast Ice Cream Company, 1535-BR-93.

E. Conduct After Discharge
The conduct of an employee after discharge is not relevant to the reason for discharge and cannot support a penalty under Section 8-1002 or 8-1003. Ammons v. B and G Vending Company, Inc., 816-BR-88.

V. Burden of Proof
An employer who alleges that a claimant is ineligible for unemployment compensation by reason of simple, gross or aggravated misconduct has the burden of proof on this issue by a preponderance of the evidence. The "preponderance of the evidence" standard applies even where the alleged misconduct consists of a criminal act on the part of the employee. The employer's burden of proof includes the production of evidence as to the employer's expectations of the employee and that these expectations were communicated to the employee. In this respect, evidence of work rules and their violations which resulted in oral and/or written warnings is particularly relevant.

An employer's burden of proof includes establishing that the alleged misconduct was in fact the reason for the employee's discharge. This burden is not satisfied by showing incidents of misconduct during the course of employment if the employee was not discharged because of these incidents.
If the employer establishes that the claimant knew about the particular work rules in question, or was adequately warned about the claimant's violation(s), then the claimant must produce evidence which refutes the implication of such knowledge or warnings. Evidence of this nature may include that, in practice, the work rules were ignored by the employer.

A. In General - On the Employer
The claimant mistakenly punched a coworker's time card with his own although the coworker had left for the day. There was no prohibition against punching another's time card. The claimant was discharged with no warnings. The burden is on the employer in a gross misconduct case to show that the claimant's actions were deliberate and willful. In this case, the evidence is insufficient to show that the claimant's action was more than a mistake. Therefore, no disqualification is imposed. Hartman v. Polystyrene Products Company, Inc., 164-BH-83.

While it is true that in a case of alleged gross misconduct, the burden of going forward is generally on the employer, the employer's failure to appear at a hearing on the claimant's appeal of a gross misconduct determination does not mandate a reversal against the employer. The hearing examiner is charged to conduct a full inquiry into the facts of the particular case (COMAR, and a finding of gross misconduct may be made where the claimant admits the allegations against her (excessive lateness in face of warnings). Ward v. Maryland Permalite, Inc., 30-BR-85.

The burden of proof need not be met beyond a reasonable doubt. Even where the claimant is found by a criminal court to be not guilty of the act for which he was discharged, the employer may prove misconduct by a preponderance of the evidence. Weimer v. Department of Transportation, 869-BH-87.

The claimant correctional officer was discharged because three female inmates alleged that the claimant had sexual relations with each of them. The three inmates did not testify at the hearing. The employer's witnesses had no personal knowledge about the alleged misconduct. The claimant denied having sexual relationships with these inmates. There was insufficient evidence to sustain a finding of misconduct or gross misconduct. Scruggs v. Division of Correction, 347-BH-89.

The claimant heard her supervisor say that he didn't like her and felt that she was overpaid. The claimant spoke to the owner about this remark, but the owner stated that the claimant was doing fine and would not be fired. Subsequently, however, the claimant was fired. The employer did not appear at the hearing. The employer has the burden of proving misconduct or gross misconduct, but failed to meet this burden. A claimant does not have to prove why the employer actually fired her. Ivey v. Catterton Printing Company, 441-BH-89.

The employer was not present at the hearing. The claimant denied each allegation made by the employer to the claims examiner. The employer's allegations were not supported by any other evidence, and the claimant's testimony did not lack credibility. There was no misconduct. Lipman v. Graphics Factory, Inc., 697-BR-90.

The claimant, who was a shift supervisor, was fired for allegedly allowing her employees to falsify time sheets and was also charged with doing this herself. However, not a single specific example of this alleged misconduct was observed or testified to by either of the employer's witnesses, and no documents were introduced relating to any specific incident of misconduct. The employer provided nothing but conclusory statements that the claimant had engaged in a certain type of misconduct. The employer failed to produce sufficient evidence to meet its burden of proof. Cook v. National Aquarium in Baltimore, 1034-BR-91.

B. When the Burden Shifts to the Employee
Where the employer has shown that the claimant did not perform a number of simple tasks, and that the staff and resources were available to do the work, the burden shifts to the claimant to explain why he was unable to perform them. Failing such proof, a finding of misconduct is supported. However, the claimant's discharge was not for gross misconduct where there is no proof that the claimant's actions were deliberate or wanton. Finn v. Sheraton Washington Hotel, 89-BR-85.

Money ($900.00) over which the claimant had sole control disappeared, and the claimant did not report to work or contact the employer for several days. The claimant did not report the shortage and had been warned for shortages in the past. The employer met its burden of proving deliberate, gross misconduct by proving that money over which the claimant had sole control disappeared, and the claimant himself disappeared without explanation. The burden then shifted to the claimant to provide any reasonable explanation for these events, but he failed to do so. Stout v. Laurel Race Course, 1030-BH-85.

A violation of an employer's absenteeism policy is not misconduct per se where that policy does not distinguish between absences which occurred due to legitimate medical reasons and absences for which there was no reasonable excuse. However, where an employee has been absent for a day of scheduled work, the burden of proof shifts to the employee to explain the reason for the absence. Leonard v. St. Agnes Hospital, 62-BR-86.

C. Employer's Failure to Follow Technicalities of Its Own Discharge Procedures
The claimant allowed an unauthorized passenger in the employer's van, against company policy. The claimant was discharged summarily, without being granted a meeting as provided in the employer's disciplinary procedures. The claimant argued that since the employer did not follow its own procedural rules in discharging the claimant, gross misconduct cannot be found. Whether the employer followed the technicalities of its own discharge procedures is irrelevant to a finding of misconduct in any case in which the employer proves that the claimant did, in fact, commit misconduct. This is true unless (1) the employer's failure to follow the discharge procedures reflects on the credibility of the employer's evidence concerning the actual happening of the act or event of misconduct, or (2) the employer's failure to follow the procedures shows that the employer has an ulterior motive for discharging the claimant. Daniels v. Primary Alcoholism Treatment Program, 301-BH-85.

The agreement between the claimant's union and the employer does not preclude the Board from a finding of gross misconduct when the claimant isn't technically in violation of the agreement, but, where the claimant's actions clearly rise to the level of gross misconduct. Toy v. Montgomery County Government, 3205-BR-95.

VI. Failure to Perform
An employee's deliberate refusal to obey the employer's direct and reasonable orders is insubordination and may constitute misconduct or gross misconduct. The reasonableness of the order depends upon the circumstances. If the employer demonstrates that an order was reasonable, then the employee must establish that he was justified in not complying.

In the case of Department of Economic and Employment Development v. Hager, 96 Md. App. 362, 625 A.2d 342 (1993), the Maryland Court of Special Appeals held that an employee's discharge for refusal to accept a transfer to another shift was for gross misconduct. The Court stated that when the claimant accepted the job offer, he agreed to work all shifts. The employer told the claimant that the transfer was likely to be temporary and that the reassignment could be shared with another employee.

If an employee is unable to perform due to incompetence or the employer's failure to provide adequate equipment or materials, there is no misconduct. If an employee is discharged because the employee is physically or mentally unable to perform the job, the discharge is not for misconduct. With respect to a pregnant employee, 26 U.S.C., Section 3304(a)(12), which mandates that no person shall be denied compensation under state law solely on the basis of pregnancy, only prohibits the state from singling out pregnancy for unfavorable treatment. See, Wimberly v. Labor and Industrial Relations Commission of Missouri, 479 U.S. 511, 107 S.Ct. 821 (1987).

Negligence in the performance of one's duties can constitute misconduct or gross misconduct depending upon the degree of negligence and the nature of the job. However, an innocent mistake or a mistake not due to negligence is not misconduct.

Violations of reasonable work rules have been held to be willful and intentional misconduct. In Painter v. Department of Employment and Training, 68 Md. App. 356, 511 A.2d 585 (1986), the claimant, who went on a medical leave due to her inability to work, failed to notify her employer, for nearly three months, of her release to return to work. The Court found a deliberate attempt by the claimant to mislead the employer and held that this was gross misconduct. However, an employee's failure to follow unreasonable, unethical or ambiguous rules or procedures is not misconduct.

A. Failure to Perform Job Duties

1. Inadequate Job Performance - In General
A mere showing of substandard performance is not sufficient to prove gross misconduct or misconduct. Todd v. Harkless Construction, Inc., 714-BR-89.

The claimant's lack of sales success, despite attempting to generate sales, is not, in itself, misconduct. The fact that the claimant discussed his dissatisfaction with other regional managers is also not, in itself, misconduct. The claimant was discharged, but not for any misconduct or gross misconduct. Krevere v. MAD Intelligent Systems, Inc., 890-BR-89.

The claimant was the executive director of a charitable organization. She was discharged due to her failure to complete necessary financial reports, failure to pay to the IRS the payroll taxes withheld, failure to pay unemployment insurance taxes and failure to inform the employer of these facts. The claimant was discharged for gross misconduct. Alexander v. Helping Hand, Inc., 950-BH-89.

The claimant was employed as a part-time office manager for a small law firm. She was discharged because the employer was unhappy with the claimant's work product. However, the claimant was working to the best of her ability and many of her problems were caused by a poorly equipped and disorganized office. The employer failed to show that the claimant committed any degree of misconduct. Knight v. Vincent Butler, Esq., 585-BR-91.

2. Refusal to Perform; Insubordination

a. Refusal to Obey a Direct Order or Instruction

(1) Gross Misconduct Found
The claimant refused to train an employee after being instructed to do so by her manager. The claimant gave no reason for her refusal. The claimant was discharged for gross misconduct. Romesberg v. Shaffer Ford, Inc., 48-SE-90.

The claimant was discharged for refusing to obey an order to accompany another driver on a road test. The claimant offered no coherent reason for refusing a reasonable order which was related to his ordinary job duties. The claimant was discharged for gross misconduct. Solomon v. Cantwell Cleary Company, Inc., 1027-BR-91.

The claimant refused to help out and take some extra stops on his route when one of the other drivers was ill. Covering for sick drivers was standard procedure and necessary in the employer's business. Others had covered for the claimant in the same way when he was ill. The extra stops did not make the claimant's work load excessive, even for that one day. The claimant was discharged for gross misconduct. Robertson v. Saval Foods Corporation, 1050-BR-92.

(2) No Misconduct Found
The claimant was not told at the time of hire that Saturday work was required, and refused to work Saturdays only when the employer gave insufficient notice. There was no misconduct. Cook v. Family Floors, Inc., 681-BR-87.

b. Refusal to Do One's Job
The claimant's blatant and repeated refusal to do her job assignments, many of which had a direct effect on patients, was gross misconduct. Ishola v. AMI Doctors of Prince George's County, 487-BR-89.

The claimant consistently refused to operate the drug counter cash register when asked to do so. This duty was a requirement of the job which was told to the claimant at the time of hire. The employer counseled the claimant about this problem on several occasions. When the claimant again refused to do this, she was discharged. This was gross misconduct. Chioli v. Dart Drug/Fantle's Drugstores, 620-BR-89.

c. Refusal Due to Belief of Danger or Hazards
The claimant, a home health aide, was discharged for refusing to enter the home of and administer care to a patient suffering from AIDS. The claimant's refusal to do her job, despite additional counseling and training, and in view of the minimal risk to the claimant and the extensive precautions provided by the employer, was gross misconduct. Vines v. Saint Joseph Hospital, 1114-BH-88.

The claimant refused a direct order to go to a job site because he heard a rumor that there might be a picket line there and he feared it would be dangerous. He did not verify this rumor as true. The claimant was discharged for gross misconduct. The claimant had no reasonable excuse to refuse a direct order. Maggio v. American Automatic Sprinkler, 735-BR-89.

d. Refusal to Work Overtime
At the time of hire, the claimant was informed that mandatory overtime was required. The claimant, having received verbal and written warnings about his past refusal to work overtime, failed on another occasion either to work the mandatory overtime or to explain his failure to the employer. This was gross misconduct. Copeland v. Ryland Group, 415-BR-86.

The claimant refused the employer's order to return for a one hour shift at the end of the work day. She had been informed that she would be fired if she refused. The claimant had already worked a fragmented shift of more than nine and one-half hours when the employer asked her to work an extra hour. She had also already worked 48 hours that week. Under the circumstances, the employer's order was unreasonable and the claimant's failure to follow it does not constitute misconduct or gross misconduct. Byrd v. Jonathan Enterprises, Inc., 934-BR-89.

3. Inability to Perform

a. Inefficiency or Incompetence
The claimant was unable to perform her job to the satisfaction of the employer. The claimant tried to do her job to the best of her ability, but was not capable of doing the job. The claimant did not have any previous experience doing clerical office work. There was no evidence that the claimant was discharged for any misconduct on her part. Cumor v. Computers Communications Group, 902-BH-87.

The claimant made a judgment concerning the proper carbonation level in three separate incidents, all of which resulted in loss to the employer. The employer showed that the claimant did not use good judgment, but failed to prove that this was due to either the claimant's negligence or deliberate efforts to disregard the employer's interest. There was no misconduct. Greenwood v. Royal Crown Bottling Company, 793-BR-88.

b. Physical or Mental Inability to Work
A claimant's failure to work to the best of her ability, thereby causing a failure to meet her employer's production standards for which she was fired, constitutes simple misconduct under Section 8-1003 where the claimant had some medical problems towards the end of her employment. Martz v. Nikki, Inc., 294-BR-85.

The claimant was discharged for bizarre, loud and aggressive behavior which resulted from the side effects of legally prescribed drugs. The claimant provided medical documentation that the drugs could have been primarily responsible for the behavior leading directly to the discharge. There was no misconduct. Day v. Sinai Hospital of Baltimore, 540-BH-85.

4. Negligence

a. Gross Misconduct
The claimant was a competent medical laboratory technician who was trained in the use of the computer and the procedures of his job. The claimant made a number of errors which clearly could have resulted in serious injury to patients for whom the testing was performed. The errors were the result of negligence in entering data into the computer. The claimant was warned several times about his error rate, but the errors increased. When a claimant's work involves critical risks to the life and health of other persons, a higher degree of care is required. The claimant was discharged for gross misconduct. Roberts v. Maryland Medical Lab, Inc., 1215-BR-88.

After having some expensive mishaps with the employer's equipment, the claimant should have adjusted his behavior. The employer specifically warned the claimant to have someone watch him whenever he backed the truck. The claimant failed to do so and caused another incident of property damage. In the last incident, the claimant overturned the truck during what should have been a normal road maneuver. The claimant was discharged for gross misconduct. Jones v. Allstate Building Supply Company, Inc., 700-BR-89.

b. Misconduct
The employer proved that during the last six to nine months, the claimant made many careless mistakes or omissions that resulted in problems with customers' cases and delayed several settlements. However, the employer failed to prove that the claimant's neglect was accompanied by a gross indifference to the employer's interest or resulted from a regular and wanton disregard of her obligations. The claimant was discharged for misconduct. Dreher v. Provident Bank of Maryland, 1216-BR-88.

The claimant nurse was fired for an accumulation of job deficiencies. The claimant made none of these mistakes deliberately, and she was not grossly negligent, but she was not as careful in her job duties as she should have been. Although mere incompetence is not misconduct, there was a degree of negligence in the claimant's conduct which amounts to misconduct. Andreski v. Crofton Convalescent Center, 1431-BR-93.

c. Cash Shortages
The claimant's repeated cash shortages, which resulted from the careless manner in which he conducted the employer's business, constitute misconduct under Section 8-1003. However, without evidence of deliberate and willful acts, a finding of gross misconduct is not supported. Kanter v. Chillum Corporation, 1028-SE-83.

The claimant had sole control of the employer's money during her shift. There was a shortage of $232 during that shift and this was not attributable to mechanical or electronic error. The claimant did not appear at the hearing to present evidence of any mitigating circumstances. The claimant was discharged for gross misconduct. Floyd v. Parkway, Inc., 1108-BR-89.

d. Accidents
The claimant tractor-trailer driver was involved in nine accidents in six years of employment. The last accident resulted from the claimant's failure, because he was in a hurry, to either set the air brakes or chock the wheels as required by procedure. The claimant's deliberate choice to shortcut the parking procedures showed a gross indifference to the financial risk imposed on the employer and the safety risk to the general public, and constitutes gross misconduct. Jefferson v. Overnite Transportation, 252-BH-83.

The claimant was discharged for striking a car in the rear. Not every minor slip that causes one to be considered negligent from the perspective of traffic laws is misconduct. Without a showing of deliberate or reckless actions, misconduct is not supported. Archie v. H.C. Gabler, Inc., 711-BR-83.

The claimant had four accidents with the company truck, two due to his negligence and two not due to any fault on his part. The claimant's discharge was for simple misconduct. Draughn v. Apex Warehouse, Inc., 880-BR-87.

e. Mistakes
Although the record supported a conclusion that the claimant made some mistakes in the performance of his job duties as a machinist, the employer failed to prove, by the number or type of mistakes, that the mistakes were due to the claimant's negligence. Therefore, no disqualification is appropriate. Keller v. Eastport International, 264-BH-85.

The claimant was discharged for mistakenly painting the wrong floor. An innocent mistake or incompetence does not constitute misconduct. Morales v. Bryan and Associates, Inc., 476-BR-85.

5. Alterations of Conditions of Employment
The claimant was discharged for refusing to sign a policy that would have substantially altered his employment benefits. There was no misconduct. Richardson v. Wallace Shipbuilding Company, Inc., 420-BR-89.

The employer tried to renegotiate the claimant's hours of work. When the claimant would not agree to a change, the employer terminated her. The claimant's refusal to change the hours of work she was promised is not misconduct or gross misconduct. Teal v. Mellon Bank, 69-BR-92.

B. Failure to Follow Rules and Procedures

1. In General
An employer's requirement that the claimant dress in a professional manner, which was made known to her at the time of hiring as a receptionist, was reasonable, and her discharge after she was warned but continued to wear T-shirts and tennis shoes, was for simple misconduct. Kidwell v. Mid-Atlantic Hambro, Inc., 119-BH-86.

The claimant presumed that the employer acquiesced to the claimant's administration of medication to a sick animal which the claimant knew or should have known that the employer did not normally approve. A violation of the normally authorized procedures requires an explicit authorization. The claimant's failure to get such authorization amounts to misconduct. Gray v. Valley Animal Hospital, Inc., 224-BR-90.

The claimant was required, pursuant to the contract between the employer and the union, to submit to a physical fitness for duty exam. The claimant refused. This was gross misconduct. Denorey v. Genstar Stone Products Company, 1198-BR-91.

Where a claimant refused to properly arrange for a continued absence by signing a leave of absence form and providing a doctor's statement, the claimant committed gross misconduct. Ullman v. Anne Arundel County Public Schools, 498-BR-93.

2. Importance of Policy Violations
The employer armored truck service required that employees count each bag of valuables as it was placed on the truck. The claimant and a coworker deliberately skipped this step and therefore did not immediately discover that a bag containing up to $12,000.00 in cash and/or checks had fallen off the truck. The claimant's deliberate violation of an important security procedure, where huge amounts of money were at stake and where the security violation greatly increased the risk of loss to the employer, constitutes gross misconduct. Dunavent v. Federal Armored Express, Inc., 949-BR-85.

The claimant was discharged for possession of a gun on the employer's premises, violating the employer's policy. This was gross misconduct. Rosendale v. Housing Authority of Baltimore City, 1110-BH-88.

The claimant mislabeled specimens and failed to follow proper procedures on two occasions. She was suspended after the first incident and discharged after the second. These incidents were serious, could have led to dangerous consequences for the patients involved and were traced directly back to the claimant. A higher degree of care is required of claimants whose work involves critical risks to the life and health of others. The claimant was discharged for gross misconduct. Winestock v. Dimensions Health Corporation, 681-BR-91.

3. Illegal or Unethical Requirements
The claimant gas station attendant, was discharged for refusal to reimburse the employer for shortages incurred on the job since payment of the shortages would reduce her pay to below the minimum wage. The employer's requirement of reimbursement was illegal under the Fair Labor Standards Act and its regulations. Therefore, no penalty was imposed on the claimant for violating the employer's rule. Hatfield v. Tri-State Oil, 390-BR-82.

4. Unreasonable Requirements
The claimant was discharged because he insisted upon commuting rather than relocating upon being transferred by the employer. The employer's policy requiring relocation was unreasonable and the claimant's failure to adhere thereto does not constitute misconduct. Leon v. Southern States Cooperative, 885-BR-83.

Where the policy was ambiguous and the claimant reasonably believed she was following it, her discharge was not for misconduct. Walker v. Domino's Pizza of Maryland, Inc., 200-BH-87.

Discharge - Sections 8-1002, 8-1002.1, 8-1003 continued