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Wilson v. Progressive Waste Solutions of Mo, Inc.

Court of Appeals of Missouri, Eastern District, Third Division

January 24, 2017

KIRK WILSON, Appellant,
v.
PROGRESSIVE WASTE SOLUTIONS OF MO, INC., and DIVISION OF EMPLOYMENT SECURITY, Respondent.

         Appeal from the Labor and Industrial Relations Commission

          Angela T. Quigless, P.J

         Introduction

         Kirk Wilson ("Wilson") appeals from the Labor and Industrial Relations Commission's (the "Commission") determination that he was disqualified from receiving unemployment benefits because he committed misconduct in connection with his employment at Progressive Waste Solutions of Mo, Inc. ("Progressive Waste"). We reverse and remand to the Commission with instructions to award Wilson unemployment benefits.

         Factual and Procedural History

         Progressive Waste is a solid waste hauling company where Wilson worked as a commercial driver from June 6, 2015 until his discharge on January 4, 2016. Wilson's duties primarily consisted of solid waste disposal. Wilson was involved in two accidents during his employment. On November 18, 2015, Wilson hit a light pole while driving through a parking lot to collect a trash container. Wilson was collecting the container later than normal and knew there were children attending a day care in the area. Wilson stated he was cautiously watching to avoid hitting children and inadvertently hit the light pole. He was driving approximately ten miles per hour when the accident occurred. The accident caused $12, 000 in damage to Progressive Waste's vehicle. Progressive Waste gave Wilson a final written warning.

         On December 28, 2015, while collecting a trash container in a tight enclosure at an apartment complex, Wilson swiped a short concrete wall. It was raining, there was an improperly parked vehicle in the route, and there was no one to help Wilson through the tight space to avoid hitting the vehicle. The accident tore the air lines off the air tank. Progressive Waste's mechanic came to the apartment complex and reattached the air lines. There was no evidence presented regarding either the extent of the damage or the cost of repair. Wilson's supervisor sent him home that day and assured Wilson he was not terminated. Progressive Waste discharged Wilson one week later for preventable accidents.

         Wilson stated that although he received an employee handbook, he was unaware of any policies regarding Progressive Waste's accident and disciplinary procedures. Progressive Waste failed to include any written accident and disciplinary policies in the record.[1]

         After his termination, Wilson applied for unemployment benefits. Progressive Waste filed a written protest of Wilson's claim for benefits. A deputy for the Missouri Division of Employment Security (the "Division") determined Wilson was disqualified from receiving unemployment benefits because he was discharged for misconduct related to the two accidents. Wilson appealed the deputy's determination to the Division's Appeals Tribunal. The Appeals Tribunal held a hearing and affirmed the deputy's determination, finding that "[t]he claimant's recurrent negligence was of such degree as to manifest culpability and constitute misconduct" because he struck stationary objects, and the accidents occurred less than two months apart. Wilson appealed the decision of the Appeals Tribunal to the Commission, which affirmed and adopted the decision of the Appeals Tribunal. Wilson now appeals to this Court.

         Points Relied On

         Wilson raises two points on appeal. He argues the Commission erred in finding he engaged in misconduct connected with work because its ruling is erroneous as a matter of law pursuant to section 228.210[2] in that (1) two accidents that are six weeks apart and were determined to be the result of carelessness are not misconduct; and (2) the facts in the record do not support the Commission's finding that Wilson's two accidents that were six weeks apart are misconduct.

         Standard of Review and Burden of Proof

         The Missouri Constitution guarantees the right of judicial review of administrative decisions affecting the substantive rights of individuals. Mo. Const. art V, § 18. Section 288.210 provides that this constitutional right may be exercised by filing a notice of appeal with the Commission and sets forth the standard of review that courts must apply:

The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law.

Section 288.210. This statute identifies four grounds on which a reviewing court may overturn the Commission's decision: (1) the Commission acted without or in excess of its powers; (2) the decision was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) the record lacks sufficient competent evidence to support the ...


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