JUSTICE - MALL, LLC, Employer-Appellant v. JAMIE BOLAND, Employee-Respondent, and DIVISION OF EMPLOYMENT SECURITY, 508 S.W.3d 153

Employer (Justice – Mall, LLC) appealed the Commission’s decision denying its claim that Employee (Jamie Boland) was disqualified from unemployment benefits for misconduct.
A second deputy originally found Employee disqualified for misconduct; the Appeals Tribunal later held for Employee, finding she was discharged for restructuring, not misconduct. Employer sought review by the Commission.
At the Appeals Tribunal hearing, Employer presented witnesses and documents (including an employee handbook receipt and a NOTICE OF SEPARATION form showing “Performance” and ineligibility for rehire). Employee testified pro se and contradicted parts of the discharge form.
Employer attempted to call two rebuttal witnesses (Kathy Cootwood and Laura Williamson) to impeach Employee’s testimony about the discharge form and to confirm how it appeared when signed; the Appeals Tribunal disallowed them because Employer hadn’t initially identified them as witnesses.
The Appeals Tribunal found Employee more credible and concluded discharge resulted from restructuring. The Commission agreed with the result but acknowledged the referee erred in excluding Employer’s rebuttal witnesses; nevertheless it upheld the finding that evidence showed only poor performance.
The court reversed and remanded, holding the Commission acted without or in excess of its powers by issuing a decision before allowing Employer to present relevant rebuttal testimony.

Issue	Employer's Argument	Division/Employee's Argument	Held
Whether denial of Employer’s rebuttal witnesses denied a fair hearing	Refusal to allow rebuttal witnesses prevented impeachment of Employee and deprived Employer of a fair hearing on credibility	Exclusion was harmless because the discharge form merely documented poor performance and wouldn’t show misconduct	Reversed: Appeals Tribunal erred; Employer must be allowed to call rebuttal witnesses because exclusion denied reasonable opportunity for a fair hearing and affected credibility findings
Whether poor performance necessarily precludes a finding of statutory misconduct	Employer: proper rebuttal evidence could show performance rose to statutory misconduct (e.g., knowing disregard or rule violation)	Division: poor performance generally not misconduct here; witnesses wouldn’t show misconduct	Court: poor performance can constitute misconduct under statutory definitions; resolution requires proper evidence and credibility determinations after hearing rebuttal testimony

Weinbaum v. Chick, 223 S.W.3d 911 (Mo. App. S.D. 2007) (administrative parties must have meaningful opportunity to be heard; denial of relevant testimony can deny fair hearing)
Hubbell Mech. Supp. Co. v. Lindley, 351 S.W.3d 799 (Mo. App. S.D. 2011) (review applies to Appeals Tribunal findings adopted by Commission)
Wooden v. Div. of Emp’t Sec., 364 S.W.3d 750 (Mo. App. W.D. 2012) (burden on employer to prove misconduct by preponderance; misconduct is question of law)
Miller v. Bank of the West, 264 S.W.3d 673 (Mo. App. W.D. 2008) (referee has considerable discretion in examining witnesses and controlling procedures)
Stone v. Mo. Dept. of Health & Senior Servs., 350 S.W.3d 14 (Mo. banc 2011) (administrative hearings still governed by fundamental evidence principles)
Howard v. City of Kansas City, 332 S.W.3d 772 (Mo. banc 2011) (rebuttal evidence may disprove or contradict opposing evidence; impeachment principles)
Mitchell v. Kardesch, 313 S.W.3d 667 (Mo. banc 2010) (credibility of witnesses is always a relevant issue)
Aliff v. Cody, 26 S.W.3d 309 (Mo. App. W.D. 2000) (exclusion of proper evidence is presumed prejudicial unless shown otherwise)
Hoover v. Cmty. Blood Ctr., 153 S.W.3d 9 (Mo. App. W.D. 2005) (discusses poor work performance relative to misconduct; court noted statutory changes post-Hoover)