Badawi v. Albin
973 N.W.2d 714
Neb.2022Background
- Saied Badawi worked at JBS Swift Beef from January 7, 2019, to May 19, 2020; after being asked in May 2020 to perform both his job and another employee’s job (absent due to COVID-19) he refused and was suspended and then barred from returning.
- Badawi applied for unemployment benefits; the Department initially found he voluntarily left without good cause and disqualified him.
- At the Nebraska Appeal Tribunal hearing JBS (the respondent) did not appear; Badawi testified (via interpreter) but the official transcript contains numerous “indiscernible” portions.
- The tribunal found Badawi was discharged for misconduct (refusing to work two positions) and imposed a 14-week disqualification; the district court affirmed on de novo review.
- The Nebraska Supreme Court reversed, holding (1) the employer bears the burden to prove discharge for misconduct under § 48-628.10, and (2) the record lacked competent evidence that JBS’s order to perform two jobs was reasonable or that Badawi committed misconduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who bears the burden to prove discharge for misconduct? | Badawi argued JBS failed to meet the burden because it did not present evidence at the tribunal. | JBS and the Department agreed the employer bears the burden, but tribunal may decide based on appellant’s evidence when respondent does not appear. | Employer bears the burden to prove misconduct; tribunal may proceed and rely on the appellant’s testimony and the hearing officer’s obligation to seek competent evidence. |
| Is the employer required to appear at the appeal tribunal hearing to meet its burden? | Badawi compared nonappearance to a prosecutor failing to appear and argued it prevented JBS from meeting its burden. | Department and JBS pointed to regulations allowing hearings to proceed and decisions to be based on evidence presented by the appealing party. | JBS was not required to appear; regulations permit the tribunal to proceed and decide on the evidence presented by the appealing party. |
| Did Badawi’s refusal to perform two jobs constitute misconduct? | Badawi argued the request was impossible/unreasonable and therefore refusal was not misconduct. | JBS argued refusal violated a transfer/insubordination policy and thus was misconduct; Department argued the refused order must be legitimate and reasonable. | Court held there was no competent evidence about the specific duties or that the order was reasonable; refusal did not amount to proven misconduct. Reversed and remanded to the tribunal. |
Key Cases Cited
- Lang v. Howard County, 287 Neb. 66 (2013) (standard for appellate review of agency decisions)
- NEBCO, Inc. v. Murphy, 280 Neb. 145 (2010) (employer must prove discharge for misconduct)
- Great Plains Container Co. v. Hiatt, 225 Neb. 558 (1987) (limits on what employee rule violations constitute disqualifying misconduct)
- Douglas Cty. Sch. Dist. 001 v. Dutcher, 254 Neb. 317 (1998) (misconduct definitions and relation to employer’s business interests)
- Meyers v. Nebraska State Penitentiary, 280 Neb. 958 (2010) (elements of misconduct for unemployment disqualification)
- Snyder Indus., Inc. v. Otto, 212 Neb. 40 (1982) (rule violation must be reasonably related to employer’s business to constitute misconduct)