Introduction
Noah Comeaux (“Employee”) appeals from the Labor and Industrial Relations Commission’s (“Commission”) decision finding that he was disqualified for unemployment benefits. On appeal, Employee contends the Commission erred in finding that he was discharged for misconduct connected with his work. We reverse and remand.
Factual and Procedural Background
On June 9, 2009, a deputy for the Division of Employment Security determined that Employee was disqualified from receiving unemployment benefits based on a finding that Employee was discharged on May 19, 2009 for misconduct connected with his work. Employee appealed the deputy’s decision to the Division Appeals Tribunal. The Appeals Tribunal held a hearing on August 4, 2009 and heard the following evidence from Employee and his supervisor Columbus Smith.
Employee worked as a customer service representative for Convergys Customer Management Group. Inc. (“Employer”). He began working for Employer in November 2005. In early 2006, Employee began working on the Home Depot program where he made outbound calls to customers who had filled out a form indicating their interest in a particular service. This type of call is known as a “warm” call. Smith testified that the disposition of the call would change immediately if the customer stated he or she was not interested. Smith stated, “If they say do not call back ... it gets dispositioned so we try and match the customer’s desires.”
Employer previously warned Employee about his performance on or about January 29, 2009, March 31, 2009, and April 23, 2009. On April 23, 2009, Employer placed Employee on an “action plan for quality” that involved improving the quality of the call by being friendlier to customers. Employee successfully completed the action plan on May 8, 2009.
On May 15, 2009, Employee made an outbound call, intending to speak with a woman regarding roofing. The woman’s husband answered the phone. He stated that they were eating dinner, and asked why Employee was calling. When Employee answered, the man responded that they did not need roofing. At this point, a quality control representative overheard Employee’s voice becoming tense and notified Smith to review the call. 1 Smith testified that Employee’s voice was “curt and short” and “a little louder than normal speaking volume.” In his notes from the call, Employee also referred to the man who answered the call as “Mr. Smarty Mouth.” 2 Employer terminated Employee on May 19, 2009 for being rude toward a potential customer on an outbound call.
On appeal, the Appeals Tribunal affirmed the deputy’s determination. Employee timely appealed to the Commission, and the Commission affirmed and adopted the determination of the Appeals Tribunal. The Commission found that Employer dis *762 charged Employee because he was “rude towards a potential customer while making an out-bound sales call” and “was aware that he was required to treat all customers in a respectful manner.” One commissioner filed a dissenting opinion, stating that Employee’s conduct did not meet the definition of “misconduct” for the purposes of Missouri Employment Security Law. This appeal follows.
Standard of Review
Article 5, Section 18 of the Missouri Constitution and Section 288.210 3 set forth the standard for reviewing decisions of the Commission in unemployment compensation cases. On appeal, 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.
Section 288.210
Deference is given to the Commission’s determinations as to the weight of the evidence and the credibility of the witnesses.
Freeman v. Gary Glass & Mirror L.L.C.,
While deference is given to the Commission’s findings of fact, this court reviews questions of law, including the application of law to the facts,
de novo. Freeman,
Discussion
Employee presents one point on appeal claiming that the Commission erred in determining that Employee’s discharge was due to misconduct connected with his work. Employee argues that his job performance falling below Employer’s expectations alone does not constitute misconduct.
Section 288.030.1(23) defines “misconduct” as:
an act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his or her employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and sübstantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.
A finding of misconduct requires that the employee. willfully violated the rules and standards of the employer.
Wieland v. St.
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Anthony’s Med. Ctr.,
Generally, an employee bears the burden of proving eligibility for unemployment compensation benefits.
Frisella,
This court must determine whether, based on the evidence adduced, the Commission’s legal finding that Employee’s conduct constituted misconduct connected with his work was sufficiently supported by the evidence. We find the Commission’s finding was not supported by the evidence.
In this case, Employer presented evidence that Employee’s voice was “getting tense” with a customer and telling him not to be rude. Employer also presented evidence that Employee wrote “Mr. Smarty Mouth” in his call notes and Employee admitted writing this statement. As in
Hoover v. Community Blood Center,
while Employee’s actions could be viewed as inappropriate, Employer never shows that Employee’s behavior was anything more than a lack of judgment.
In its brief, the Employer specifically argues, “It is likely that Employer’s client reviews the logs of customers on behalf of the client. That means, that Employer’s client might see such derogatory and inappropriate language that could have a negative impact on Employer. Employer could lose the client over such an occurrence.” (emphasis added). Employer presented no evidence that Home Depot does in fact review the call logs nor does it establish how that written comment could have a negative impact on Employer.
Employer also argues that the May 15, 2009 phone call was willful because Employee worked for Employer for more than
*764
three years without receiving any warnings and then received three warnings in four months. Employer cites to
Freeman v. Gary Glass & Mirror, L.L.C.
to support this proposition.
Respondent cites three cases in support of its position that Employee’s actions constituted misconduct but all are distinguishable from the facts in this case. In
Powell v. Division of Employment Security, Labor and Industrial Relations Commission of Missouri,
the employee was employed for three months but was often tardy, took extended lunch periods and left work early.
In
Dixon v. Stoam Industries, Inc.,
the employee refused to comply with a lawful and reasonable directive from his supervisor when employee’s supervisor asked him to move to a different process and he refused.
Employer must show by a preponderance of the evidence that Employee willfully violated Employer’s rules.
Scrivener,
Conclusion
The Commission’s finding that Employee’s actions amounted to misconduct which disqualified him from receiving unemployment benefits.was not supported by competent and substantial evidence. Accordingly, we reverse and remand for the entry of an appropriate award.
Notes
. According to Smith’s testimony, approximately ninety-eight percent of the calls are recorded.
. This phrase is not in dispute. However, the findings of the Division of Employment Security Appeal’s Tribunal states "Mr. Smarty Mouth”; while, Employer’s "Counseling/Separation Record,” states "Mr. Very Smart Mouth.”
. All further statutory references arc to RSMo 2000, unless otherwise indicated.