Submitted
on briefs April 23, 2019
Appeal
from Superior Court in the judicial district of Waterbury and
tried to the court, Hon. Joseph H. Pellegrino, judge trial
referee.
Page 203
Beth
Z. Margulies and Philip M. Schulz, assistant attorneys
general, and George Jepsen, former attorney general, filed a
brief for the appellant (named defendant).
DiPentima,
C.J., and Alvord and Diana, Js.
OPINION
DiPENTIMA,
C.J.
[191
Conn.App. 579] The defendant, the Administrator of the
Unemployment Compensation Act, appeals from the judgment of
the Superior Court reversing the decision of the Employment
Security Board of Review (board) denying benefits to the
plaintiff, Karim Seward, and remanding the matter to the
board for further proceedings.[1] On appeal, the defendant
claims that the court improperly (1) found and relied on
facts beyond those certified by the board and (2) used those
facts to determine that the board had abused its discretion
in concluding that the plaintiff had not established good
[191 Conn.App. 580] cause to open the decision of the appeals
referee. We agree and, accordingly, reverse the judgment of
the Superior Court.
The
following facts and procedural history are relevant to our
discussion. Cowan Systems, LLC (Cowan), employed the
plaintiff as a truck driver from August 23, 2016, until March
15, 2017. On March 11, 2017, the plaintiff drove out of
Cowans truck yard in the course of his work duties. Shortly
thereafter, the trailer separated from the truck, resulting
in approximately
Page 204
$10,000 in damages. At the commencement of the plaintiffs
employment, Cowan had informed the plaintiff of the
requirement to conduct a "pull test," which was
designed to prevent separation of the trailer from the truck,
ensure safety and prevent property damage. Despite the
plaintiffs claim that the separation had been the result of
equipment failure, Cowan concluded that the plaintiff had
failed to conduct the "pull test" and considered
the incident to have been a "preventable accident"
and therefore terminated his employment.
On
April 24, 2017, the defendant approved the plaintiffs
application for unemployment compensation benefits. Cowan
appealed the defendants determination to the Employment
Security Appeals Division. The appeals referee, in a May 19,
2017 decision, noted that the plaintiff had failed to
participate in the May 18, 2017 hearing. The referee further
stated that the issue was "whether the employer
discharged the [plaintiff] for wilful misconduct in the
course of his employment." After setting forth the
factors for determining whether an employee had been
discharged from employment for wilful misconduct, and thus
was ineligible for unemployment compensation benefits; see
General Statutes § 31-236 (a) (2) (B); the referee found that
the accident resulted from the plaintiffs failure to conduct
a "pull test." [191 Conn.App. 581] Applying the
applicable statute[2] and the relevant factors set forth in
the Regulations of Connecticut State Agencies,[3] the referee
determined that the plaintiff had "knowingly violated a
reasonable employer policy which was uniformly enforced and
reasonably applied." The referee further concluded that
the plaintiff was disqualified from receiving unemployment
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benefits pursuant to § 31-236 (a) (2) (B). Accordingly, the
referee sustained Cowans appeal. The plaintiffs subsequent
[191 Conn.App. 582] motion to open the referees decision was
denied for failing to "[cite] any reason that could
constitute good cause for failing to participate in the
referees hearing on May 18, 2017."
The
plaintiff filed a timely appeal to the board, where the
issues were "whether the [plaintiff] has demonstrated
good cause for failing to participate in the referees
hearing which was scheduled for May 18, 2017; and whether the
referee properly denied the [plaintiffs] motion to
[open]." In his "written argument" in support
of his appeal, the plaintiff stated: "I was totally
unaware of the scheduled hearing date of May 18th and [it
was] denied based on the fact of not being involved. I was
not involved in that hearing because I was not aware of it.
When I received the hearing packet, it wasnt marked to
indicate it was ...