Seward v. Administrator, Unemployment Compensation Act

         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.

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          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 Cowan’s truck yard in the course of his work duties. Shortly thereafter, the trailer separated from the truck, resulting in approximately

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$10,000 in damages. At the commencement of the plaintiff’s 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 plaintiff’s 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 plaintiff’s application for unemployment compensation benefits. Cowan appealed the defendant’s 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 plaintiff’s 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 Cowan’s appeal. The plaintiff’s subsequent [191 Conn.App. 582] motion to open the referee’s decision was denied for failing to "[cite] any reason that could constitute good cause for failing to participate in the referee’s 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 referee’s hearing which was scheduled for May 18, 2017; and whether the referee properly denied the [plaintiff’s] 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 wasn’t marked to indicate it was ...