OPINION
This action was originally brought when Garman filed a request for a hearing before the Appeals Referee of the Nevada Employment Security Department (“ESD”) after receiving notice from ESD that her claim for unemployment benefits was denied. The referee entered a decision affirming the action of ESD denying Garman benefits. The Referee’s decision was appealed to the Board of Review. The Board of Review adopted the findings of fact of the Referee and affirmed his decision.
The Board of Review decision was appealed to the district court by a petition for judicial review. On July 17, 1985, the trial court entered its order affirming the decision of the Board of Reviеw and dismissing the petition.
Linda Garman was employed by Las Vegas Area Camp Fire Council, Inc. as a
Garman was employed 4V2 months with the Camp Fire Council. During that time she experienced four changes in her immediate supervisor. During the tenure of each supervisor, Garman worked from 6:00 a.m. to 2:00 p.m.
On June 4, 1984, Garman received a memorandum from her new supervisor, Judith Dobson, stating that her new hours would be from 8:30 a.m. to 4:30 p.m. Garman reported to work the next day at 8:30 a.m. and had her performance evaluated by Judith Dobson. During this meeting, Dobson told Garman she would be required to work the newly assigned schedule. Garman told Dobson that she could not do this because of school and family commitments. Immediately after this meeting, Dobson suspended Garman without рay pending termination. The grounds for the suspension were insubordination and unprofessional conduct.
Subsequently, on June 8, 1984, Dobson officially terminated Garman for a long list of infraсtions. The sole justification for denial of employment benefits, as determined by the Appeals Referee, was that Garman had committed misconduct by refusing to work the newly assigned schedule. The Appeals Referee deemed this to be the proximate cause of her termination. After unsuccessfully exercising her appellate rights at the Board of Review and at the district court, Garman filed the instant appeal.
The issue in this appeal is whether Garman’s refusal to work reassigned hours constituted misconduct, аs a matter of law, under the facts of the instant case.
The Appeals Referee’s decision, which was upheld by the Board of Review, held that misconduct is defined as “a dеliberate violation or a disregard of reasonable standards, carelessness or negligence showing substantial disregard of duties.” Barnum v. Williams,
When analyzing the concept of misconduct, the trier of fact must consider the legal definition,
Barnum,
in context with the factual circumstances surrounding the conduct at issue. Misconduct then becоmes a mixed question of law and fact. Jones v. Rosner,
Nevada decisions have stаted that the employee’s conduct which prompted the termination must have an element of wrongfulness in order to constitute misconduct so as to prevent the terminated employee from receiving unemployment benefits. In Lellis v. Archie,
The activities of Garman and the circumstances of her employment must be analyzed to see if there is an element of wrongfulness, sufficient to support a determination of misconduct.
When Garman accepted employment with Las Vegas Area Cаmp Fire Council, Inc., she conditioned her employment on being able to work from 6:00 a.m. to 2:00 p.m. This was specifically approved by the Camp Fire Board over the objections of the existing Executive Director.
Many cases can be cited which indicate that refusing to work new hours other than those initially agreed upon under an employment relationship by contract or at will, does not constitute misconduct.
See
Wade v. Hurley,
While no express contract for employment existed between the parties in the instant case, nor was an employment contract mentioned in the findings of fact or argued to the court until Garmаn’s final reply brief, her case is similar to the aforecited cases in which courts have found that a refusal to work newly assigned hours was not misconduct, even absent an agrеement for specific working hours as a condition of employment. Garman’s case is even stronger because she specifically conditioned her employment upon working an individualized schedule.
This court has ruled that when an employee receives a shift change and then responds by eventually not showing up for work, such evidencе in the record substantiated the ruling of no entitlement to benefits. State Employment Sec. Dept. v. Weber,
Garman’s case, however, provides no basis for a determination of misconduct in refusing to work under a rearranged time schedule. Her original time schedule was specifically approved by the Camp Fire board of directors pursuant to employment negotiations. Garman was attending university classes which would have conflicted with the new schedule. She was contemplating taking more classes in the future. On the day she was directed to begin working from 8:30 a.m. to 4:30 p.m., she came to work at 8:30 a.m. and thereafter explained her problem in maintaining the new schedule.
When viewing the facts of this case with other similar decisions, it is certain that Garman’s refusal to work new hours did not constitute misconduct. There was no substantial evidence of wrongfulness in Garman’s actions. Therefore, the judgment of the lower court must be reversed.
ESD alleges that the refusal to work assigned hours is universally recognized as misconduct. Garman did not refuse to work assigned hours, she refused to acquiesce
Since Garman’s refusal to accept and work the revised time schedule invoked by her new supervisor did not constitute misconduct under the facts of record, we reverse the judgment of the district court and remand with instructions to order ESD to provide Garman her appropriate unemployment benefits.