Otis R. Mann, Jr., Esq.
Clifford, Mann & Swisher
Charleston, West Virginia
Attorneys for Appellant
The Opinion of the Court was delivered PER CURIAM.
1. Findings of fact by the Board of Review of the West Virginia
Department of Employment Security, in an unemployment compensation case, should not
be set aside unless such findings are plainly wrong; however, the plainly wrong doctrine does
not apply to conclusions of law by the Board of Review. Syllabus Point 1, Kisamore v.
Rutledge, 166 W. Va. 675, 276 S.E.2d 821 (1981).
2. Unemployment compensation statutes, being remedial in nature, should
be liberally construed to achieve the benign purposes intended to the full extent thereof.
Syllabus Point 6, Davis v. Hix, 140 W. Va. 398, 84 S.E.2d 404 (1954).
This is an appeal by Robert C. Tabor from an order of the Circuit Court of
Kanawha County holding that he was disqualified from receiving unemployment
compensation benefits because he voluntarily quit his job without fault on the part of his
employer. Mr. Tabor, on appeal, claims that he was fired and that the conclusion of the
circuit court that he quit without good cause involving fault on the part of the employer was
The appellant, Robert C. Tabor, was a glass salesman and estimator for
Diamond Glass Company, Inc., and, as a part of his work, he from time to time assisted other
employees prepare glass for installation.
On Friday, July 24, 1998, the appellant heard that Andy Kaliseh, his boss and
the president of Diamond Glass Company, Inc., would not be working on Monday, July 27,
1998. In spite of this, Mr. Kaliseh appeared on Monday, July 27, 1998, and when he
appeared, the appellant made a remark to which Mr. Kaliseh took offense. As a result, Mr.
Kaliseh ordered the appellant to his office and started criticizing him. In the exchange which
followed, Mr. Kaliseh suggested that he pack up his things and leave. According to Mr.
Kaliseh, I gave him the decision to either change his attitude or pack his things up and
leave. According to the appellant, Mr. Kaliseh's remark was: Well, with that attitude, you
can clean your desk out. We don't need that attitude around here. The appellant interpreted
what was said as meaning that he had been fired.
The appellant subsequently filed a petition for unemployment compensation
benefits. The employer challenged the claim on the ground that the appellant had not been
fired, but had voluntarily quit without fault on the part of the employer.
The deputy commissioner who examined the appellant's claim concluded that
it would not have been unreasonable for the claimant to believe that he had been fired when
his supervisor told him to pack his things and leave. Consequently, the deputy commissioner
concluded that the appellant was qualified to collect unemployment compensation benefits.
The employer appealed the deputy's decision, and hearings were held before
an administrative law judge. Before the administrative law judge, Mr. Kaliseh admitted that
he had told the appellant to change his attitude or pack up his things and leave, but he
testified that all he was doing was telling the appellant that he didn't appreciate the
appellant's comments and didn't feel that they were appropriate. He essentially took the
position that the appellant had not been fired, but that there had been a misunderstanding.
The appellant, on the other hand, indicated that he believed that he had been fired.
After the conclusion of the hearings, the administrative law judge concluded
that the claimant had maintained that he had been discharged and the employer had
maintained that he had quit. The administrative law judge stated: Considering the entire
record, it is more likely that the claimant did not appreciate the nature and manner of the
reprimand received from Andy Kaliseh, President, on July 27, 1998. The claimant had his
pride bruised, so the claimant resigned his employment. Because of this finding, the
administrative law judge reversed the decision of the deputy commissioner and ruled that the
claimant had voluntarily left work without good cause involving fault on the part of the
The Review Board of the Bureau of Employment Programs reviewed the
documents filed in the case and upheld the decision of the administrative law judge. The
Board's decision was appealed to the Circuit Court of Kanawha County, and by order entered
on July 23, 1999, the circuit court affirmed the Board's decision. The circuit judge stated:
The Court agrees with the Board of Review in recognizing that employers are well within their discretion to advise and reprimand their employees regarding proper guidelines for work to be performed on the business premises. The Court also believes that, more likely than not, a difference of opinion arose between the Claimant and his employer regarding proper work
guidelines which resulted in the employer offering the Claimant
employee the option of either changing his attitude or leaving
his employment with the employer. It is this Court's opinion
that the facts clearly show that the Claimant, faced with the
aforementioned options, left his employment voluntarily without
good cause involving fault on the part of the employer.
The court, therefore, affirmed the decision of the Board of Review.
West Virginia Code 21A-7-21 provides that: In a judicial proceeding to
review a decision of the board [in an unemployment compensation case], the findings of fact
of the board shall have like weight to that accorded to the findings of fact of a trial chancellor
or a judge in equity procedure. In Syllabus Point 1 of Kisamore v. Rutledge, 166 W. Va.
675, 276 S.E.2d 821 (1981), this Court stated: Findings of fact by the Board of Review of
the West Virginia Department of Employment Security, in an unemployment compensation
case, should not be set aside unless such findings are plainly wrong; however, the plainly
wrong doctrine does not apply to conclusions of law by the Board of Review.
Further, in Hanlon v. Logan County Board of Education, 201 W. Va. 305, 496
S.E.2d 477 (1997), this Court indicated that, in the unemployment compensation context, a
finding of fact is clearly erroneous when, although there is evidence to support the finding,
the reviewing court, on the entire evidence, is left with the definite and firm conviction that
a mistake has been committed.
While the evidence in the present case shows that on the day the appellant left
work, he had been criticized and possibly had had his pride bruised, the appellant's boss and
the president of his employer, Mr. Kaliseh, admitted that he had suggested to the appellant
that he could clean out his desk and leave. Additionally, during the hearings, Mr. Kaliseh
implicitly recognized that the remarks could have been taken by the appellant as indicating
that his employment had been terminated, and he indicated that he believed that the appellant
had misunderstood them. His principal testimony was that it was not his true intention, or
the true intention of the employer, to terminate the appellant's employment.
This Court has rather consistently recognized that: 'Unemployment
compensation statutes, being remedial in nature, should be liberally construed to achieve the
benign purposes intended to the full extent thereof.' Syllabus Point 6, Davis v. Hix, 140
W. Va. 398, 84 S.E.2d 404 (1954). Syllabus, Mercer County Board of Education v. Gatson,
186 W. Va. 251, 412 S.E.2d 249 (1991).
In light of the fact that the employer made remarks which reasonably have been
construed as meaning that the appellant had been fired, that the appellant testified the he had
been fired, and that the employer suggested that the appellant had misunderstood what was
meant when the remarks were made, this Court believes that a liberal reading of the evidence,
as required by Davis v. Hix, id., shows that the appellant legitimately concluded that he had
been fired. In light of this, the Court is left with a definite and firm conviction that the Board
of Review and the circuit court were rather plainly wrong in finding that the appellant had
voluntarily quit rather than left his employment because he had been discharged or because
of some fault on the part of the employer.
For the reasons stated, this Court believes that the judgment of the Circuit
Court of Kanawha County should be reversed, and this case should be remanded with
directions that the circuit court enter an order holding that the appellant was not disqualified
from receiving unemployment compensation benefits because he voluntarily quit his job
without good cause involving fault on the part of his employer.