In hеr job as a housekeeper for Holiday Inn, the appellant, Gwendolyn A. Millen, was required to wear a uniform. All but one of the three uniforms her employer had supplied her with had gotten so raggеd that her supervisor would not let her wear them. Since she had no dryer at home, it became her practice to wash her one usable uniform at home and dry it in the commercial dryer that thе employer maintained for drying the hotel’s sheets. There was evidence, though
On the day the appellant was fired, her supervisor refused her permission to use the commercial dryer, and told her that she would have to use the coin-operated hotel guest dryers. (The appellant testified before the administrative hearing officer that her supervisor used the company dryers for her personal laundry on that same day; howеver, this was not admitted by the supervisor.) When the appellant told her supervisor that she had no money with which to operate the coin-operated dryers, the evidence showed eithеr that she was told that she would have to go home because she had no dry uniform in which to work, or that she went home of her own volition. (The supervisor testified before the administrative hearing officer that when the appellant explained that she could not use the guest dryers because she had no money, the supervisor offered to lend her money; however, this was denied by the aрpellant.) When the appellant telephoned her supervisor later in the day to ask about reporting for work the following day, she was told that she was fired.
The Board of Review of the Employment Security Agency, of the Georgia Department of Labor, denied the appellant unemployment benefits, based upon OCGA § 34-8-158 (2): “failure to obey orders, rules or instructions or . . . failure to discharge the duties for which . . . employed.” Appellee-Commissioner of Labor, Sam Caldwell, expressly based the penalty imposed solely on the appellant’s having reported to wоrk without a serviceable uniform. The superior court affirmed the Department of Labor, and the Court of Appeals denied the appellant’s application for discretionary appeal. We granted the writ of certiorari. We reverse. Held:
Georgia, like the other states of the Union, has a strong public policy favoring payment of unemployment benefits to pеrsons unemployed through no
fault
of their own. OCGA § 34-8-2. The burden is on the employer urging the disqualification for benefits to show by a preponderance of evidence that the applicant for compensation comes within the exception.
Dalton Brick &c. Co. v. Huiet,
If a fired employee may not be denied benefits because he or she was unable to comply with known work requirements, then a fortiori, benefits should not be denied to an employee who has been fired for failure to comply with unknown work requirements, or requirements which could not have been reasonably anticipated. In the latter situation, not only is the employee not at fault, but also the employer is at least somewhat at fault in the employee’s firing. By simply promulgating or communicating, and uniformly enforcing, any reasonable work rule, an employer can readily avoid two untoward consequences: throwing the employee out of work, and being liаble for his or her unemployment benefits. If the employee refuses to comply with a specific, equitably applied and reasonable rule, then the employer may fire him or her for misconduct and be confident that no unemployment compensation benefits under OCGA § 34-8-158 (2) will be paid. If an employer nevertheless wishes to be arbitrary about such matters, Georgia law allows it neаrly free rein as far as the firing is concerned, but not as far as payment of unemployment compensation benefits to the ex-employee is concerned.
Although this is a case of аpparent first impression in Georgia, the courts of many other states have required that the misconduct be deliberate, willing, knowing, and that the rule has been uniformly enforced. See, e.g., Butler v. J. P. Stevеns & Co.,
Although no Georgia appellate court has considered the rule we herеby adopt, several lower tribunals have decided cases consistently with this rule. E.g.,
Orsini v. South Metro Children’s Center,
Ga. Dept. of Labor Appeals Tribunal, decision of Administrative Hearing
In a consent order in a federal case, appellee Caldwell and his agency bound themselves to apply the fоllowing provision: “A claimant shall not be disqualified for violation of an employer’s rule unless the claimant knew of the rule, either having been made aware thereof by the employer or thrоugh common knowledge. Consistency of prior enforcement shall be taken into account as to the efficacy or existence of the rule.” Fantroyal v. Caldwell, Civil Action No. CV 579-28 (S. D. Ga., Wayсross Div. 1980). The Department may not now be heard to argue for any different rule, under the principle of res judicata; the appellant is a member of the Fantroyal class (order at p. 2), and the ordеr applies to her case (order at p. 5, Item 2).
The fundamental rule applicable to claims for unemployment compensation is that the claimant shall be entitled to compensation unless the employer proves, by a preponderance of the evidence, that the discharge or suspension for which compensation is sought, was caused by deliberate, conscious fault of the claimant, as provided by statute as construed by judicial decisions.
The undisputed evidence in this case shows that the appellant was fired from her job with Holiday Inn fоr exactly the same conduct that she had engaged in many times in the past, i.e., coming to work with a freshly washed but wet uniform, intending to dry it in the company machine before starting work. Not only had both the appellant and other housekeeping employees done this regularly in the past without protest by the employer, but also on the one occasion when the appellant had asked her supervisor’s permission to do so, the supervisor admitted that she had granted that permission. There was no evidence of a written rule against this conduct, nor any evidence that аny unwritten policy that the supervisor may have thought existed on the subject was properly communicated to the employees, or consistently enforced (if it had ever been enforced at all).
The burden was on the employer to prove fault on the part of the claimant which would disqualify her. Since the case was apparently
Judgment reversed and remanded with direction.