Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2011-019

                                          JULY TERM, 2011

 George Brott                                          }    APPEALED FROM:
                                                       }
                                                       }
    v.                                                 }    Employment Security Board
                                                       }
                                                       }
 Department of Labor                                   }    DOCKET NO. 09-10-103-11
 (J.A. McDonald, Inc.)                                 }



                          In the above-entitled cause, the Clerk will enter:

       Claimant appeals pro se from the denial of his claim for unemployment benefits. We
reverse and remand for additional findings.

        Claimant was employed as a mechanic for employer for approximately four months. He
was discharged on July 29, 2010, for misusing company-owned property. Following a hearing,
an Administrative Law Judge made findings and conclusions, all of which the Employment
Security Board adopted. The Board thus found that claimant used a company-owned loader to
load five truckloads of gravel tailings onto a friend’s dump truck for use on claimant’s property.
Claimant also used a company-owned backhoe to clear a blocked culvert on his property. When
employer discovered claimant’s behavior, claimant was fired.

        Based on these findings, the Board concluded that claimant was disqualified from
receiving unemployment benefits under 21 V.S.A. § 1344(a)(2)(B) because he had been
discharged for gross misconduct connected to his work. The Board stated that under Vermont’s
unemployment law, employer needed to demonstrate by a preponderance of the evidence that
claimant’s actions were in substantial disregard of employer’s interests, either willfully or in a
culpably negligent manner. See In re Gray, 127 Vt. 303, 305 (1968). In this case, claimant
admitted using two company-owned pieces of equipment for personal work. Although the
personal work was not done on company time, claimant was nonetheless using very expensive
machinery to perform work on his own property. By using company-owned equipment without
the express permission of the company, the Board concluded that claimant’s actions were not
only in substantial disregard of his employer’s interests, but also rose to the level of gross
misconduct because he was using his unique position with the company to provide a benefit to
himself. Thus, because employer met its burden of proof, the Board found claimant disqualified
from receiving benefits. This appeal followed.
        On appeal, claimant complains that employer provided only hearsay testimony. Claimant
also asserts that there was insufficient evidence to show that his actions were deliberate.

       While we find these arguments unpersuasive, we must reverse and remand because the
Board did not apply the recently amended statutory definition of “gross misconduct.” See 2009,
No. 124 (Adj. Sess.), § 7. The Board instead applied what appears to be a less stringent standard
derived from case law. Effective May 24, 2010, “gross misconduct” is specifically defined as:

              conduct directly related to the employee’s work performance that
              demonstrates a flagrant, wanton, and intentional disregard of the
              employer’s business interest, and that has direct and significant
              impact upon the employer’s business interest, including but not
              limited to theft, fraud, intoxication, intentional serious damage to
              property, intentional infliction of personal injury, any conduct that
              constitutes a felony, or repeated incidents after written warning of
              either unprovoked insubordination or public use of profanity.


21 V.S.A. § 1344(a)(2)(B); see 2009 , No. 124 (Adj. Sess.) § 15. The Board did not make any
findings with respect to this definition, and we cannot do so in the first instance. We therefore
reverse and remand for additional findings. See Bouchard v. Dep’t of Emp’t & Training, 174 Vt.
588, 589 (2002) (mem.) (noting that, on review, this Court will uphold Board’s conclusions of
law only if they are fairly and reasonably supported by findings).

       Reversed and remanded.



                                            BY THE COURT:


                                            _______________________________________
                                            John A. Dooley, Associate Justice

                                            _______________________________________
                                            Marilyn S. Skoglund, Associate Justice

                                            _______________________________________
                                            Brian L. Burgess, Associate Justice




                                               2
