                                        In the
                        Missouri Court of Appeals
                                 Western District
 MARK WAYNE,                                 )
                                             )
                 Appellant,                  )   WD83132
                                             )
 v.                                          )   OPINION FILED: April 28, 2020
                                             )
 DIVISION OF EMPLOYMENT                      )
 SECURITY,                                   )
                                             )
                Respondent.                  )

             Appeal from the Labor and Industrial Relations Commission

      Before Division Two: Mark D. Pfeiffer, Presiding Judge, Alok Ahuja, Judge and
                                 Gary D. Witt, Judge


        Appellant Mark Wayne ("Wayne") appeals the decision of the Labor and Industrial

Relations Commission, Division of Employment Security ("Commission") denying him

unemployment benefits. Wayne raises three points on appeal suggesting that there was

insufficient evidence to support a finding that he was discharged for misconduct and

therefore ineligible for benefits. We reverse and remand.
                          Factual and Procedural Background

       Wayne worked for Estes Express Lines Corporation ("Estes") for over seventeen

years as a loader and dock worker. He was terminated for poor job performance on May 17,

2019. At the time of his termination, he was working as a loader operating a forklift loading

freight onto trucks. In the three months preceding his termination, he received four Notices

of Written Warning:

    On March 27, 2019, Wayne received a written warning for stacking freight on

       freight. Estes instructed him to follow proper loading procedures including to use

       the tools and to block-brace, wrap, and strap the freight. He was suspended for two

       days.

    On April 17, 2019, he received a written warning for failure to use captive beams

       when loading freight and for standing on the end of the "arrowshed." He was again

       instructed to follow the proper procedures and to block-brace, wrap, and strap the

       freight.

    On April 17, 2019, he received a separate written warning for putting the forks of

       his forklift into a 50-gallon drum of hazmat material. He was sent home for the day.

    On May 1, 2019, Wayne received a written warning for loading pallets on top of

       skid bags causing damage to the bags. He failed to use the captive beams to load

       the freight and it had to be reloaded.




                                                2
(collectively, "Written Warnings"). Approximately two weeks later he was terminated

when he "mixed up" some numbers and the freight was loaded "to [sic] high".1

        Following his termination, Wayne sought unemployment benefits. Estes protested

Wayne's claim because Estes alleged Wayne violated the company's Code of Conduct

Policy ("Code of Conduct") against "Insubordination--or failure to follow a supervisor's

instructions, including the failure to observe supervisory rules, practices, failure to perform

jobs assigned and/or functions of your job" ("Protest Letter"). Specifically, the Protest

Letter outlined and attached the above Written Warnings. It also noted that Wayne had

received Estes's Code of Conduct and it is otherwise posted in the employee breakroom

and "throughout the terminal." Estes asserted that employees are aware that they may be

discharged for even one violation of the company rules.

        A Deputy with the Division of Employment Security Division ("Division") issued

its denial of Wayne's claim, finding that he was discharged for "misconduct connected with

work." Specifically, that Wayne "incorrectly loaded pallets resulting in damage to the

product and loss for the customer. The claimant disregarded strict freight handling

procedures." Wayne appealed this decision. A telephone hearing was held before the

Appeals Tribunal of the Division ("Appeals Tribunal") on July 15, 2019 ("Hearing"). At

the Hearing, Estes representative testified regarding Wayne's prior Written Warnings and

stated the only reason given to Wayne at the time of his discharge was that he was being

dismissed for "poor performance." Wayne testified that immediately prior to his discharge


        1
         Nowhere in the record is there an explanation of how the mix up of the numbers impacted Wayne's job
performance that day.

                                                       3
he had incorrectly loaded a "gold medal" shipment--a shipment with a guaranteed delivery

date. He testified that he had "two (unintelligible) numbers off by one" and he "mixed . . .

up" the shipment. Wayne testified that he was told this was the reason for his dismissal.

       On July 19, 2019, the Appeals Tribunal issued its decision finding that the testimony

of the witness for Estes was persuasive despite contradictory testimony from Wayne.

Specifically, the Appeals Tribunal found that Wayne was aware of the Code of Conduct

and that he could be discharged for poor job performance and failure to perform up to

acceptable standards. The Appeals Tribunal found that there was substantial evidence to

find that Wayne was discharged for "misconduct," as defined by section 288.030.1(23),

because he was aware of the company's policy regarding job performance and yet had

multiple incidents of poor work performance in which he admitted fault.

       Wayne appealed the Appeals Tribunal's determination to the Commission. The

Appeals Tribunal's decision was affirmed and adopted by the Commission by a vote of two

commissioners to one ("Award").        Commissioner Chick filed a Dissenting Opinion

("Dissent"). The Dissent found that Wayne's testimony, that he did the best he could to

load the freight, was credible. Therefore, the Dissent found that Wayne's conduct was

merely a mistake that "demonstrated bad judgment" and, therefore, did not rise to the level

of statutory misconduct.

       This appeal followed.

                                   Standard of Review

       We review the Commission's decision to determine whether it is "supported
       by competent and substantial evidence upon the whole record." Mo. Const.
       art. V, § 18. We must affirm the Commission's decision unless (1) the

                                             4
      Commission acted without or in excess of its powers; (2) the decision was
      procured by fraud; (3) the facts found by the Commission do not support the
      award; or (4) the record lacks sufficient competent evidence to support the
      award. § 288.210.

Norath v. Div. of Emp't Sec., 490 S.W.3d 792, 794 (Mo. App. E.D. 2016). "Whether the

award is supported by competent and substantial evidence is judged by examining the

evidence in the context of the whole record." Hampton v. Big Boy Steel Erection, 121

S.W.3d 220, 223 (Mo. banc 2003). "This Court defers to the Commission on issues

involving the credibility of witnesses and the weight given to testimony." Johnson v.

Denton Constr. Co., 911 S.W.2d 286, 288 (Mo. banc 1995). We need not view "the

evidence and all reasonable inferences drawn therefrom in the light most favorable to the

award." Hampton, 121 S.W.3d at 223. "Whether the Commission's findings support the

conclusion that a claimant engaged in misconduct connected with his or her work is a

question of law," to be reviewed de novo. Fendler v. Hudson Servs., 370 S.W.3d 585, 589

(Mo. banc 2012) (internal citation omitted).

                                       Discussion

      Wayne raises three points on appeal: (1) there was insufficient evidence to support

a finding that he received the 2010 version of the Code of Conduct relied on by the

Commission; (2) Estes contributed to his emotional distress that impeded his ability to

think clearly by assigning him different jobs, failing to have proper materials and tools,




                                               5
and putting him in fear of losing his job; and (3) the Commission's Award is not supported

by substantial evidence.2

        As the Commission notes, "[a] claimant cannot litigate on appeal an issue that was

appropriate for, but not addressed by, the Commission." Adams v. Div. of Emp't Sec., 353

S.W.3d 668, 673 (Mo. App. E.D. 2011). "'This [c]ourt may only address issues that were

determined by the Commission and may not consider issues not before the Commission.'"

Id. (quoting Perry v. Tiersma, 148 S.W.3d 833, 835 (Mo. App. S.D. 2004)). The issues

raised by Wayne to the Commission were that there were "discrepancies" in the "job

performance, responsibilities, and available materials needed" to complete his position of

loader. Additionally, that his employer did not properly instruct him how to do his job

without proper tools or equipment and other employees who did not use the proper tools

or equipment were not given written warnings. He also contended that "the rules are not

fairly and consistently enforced" in that "[o]ther workers, dock workers and loaders have

to operate with absence of equipment and tools on a day to day basis loading as they can,

but they are spared write-ups." Wayne's first point on appeal, that there is no evidence he

received the Code of Conduct, was not raised before the Commission and thus is waived

on appeal. We find, however, that his second and third arguments, when taken together,



        2
          In its brief the Commission asks that Wayne's brief be stricken for failure to comply with Missouri
Supreme Court Rule 84.04(d)(2)(c) which provides the outline for how a Point Relied On must be drafted. The
requirements of Rule 84.04 are mandatory and failure to comply with the rule is grounds for dismissal. Hankins v.
Reliance Auto., Inc., 312 S.W.3d 491 (Mo. App. E.D. 2010). "This is to ensure that appellate courts do not become
advocates by speculating on facts and arguments that have not been asserted." Pearson v. Keystone Temp.
Assignment Grp., Inc., 588 S.W.3d 546, 550 (Mo. App. E.D. 2019). Although Wayne's points on appeal fail to
follow the "roadmap" established by Rule 84.04(d)(2)(c), they are clear as to the arguments raised. As such,
because we prefer to decide cases on the merits and we can sufficiently ascertain Wayne's argument to provide
meaningful review without becoming an advocate, we exercise such a review in our discretion.

                                                        6
properly raise a claim that there was not substantial evidence to support a finding of

misconduct because he did not have proper tools or equipment and his poor performance

did not rise to the level of misconduct, was argued to the Commission and is proper for this

Court to consider on appeal.

       Under section 288.050.2, if the Division finds that a claimant "has been discharged

for misconduct connected with the claimant's work, such claimant shall be disqualified for

waiting week credit and benefits . . . ." Section 288.030.1(23) defines "misconduct," in

relevant part, as:

       conduct or failure to act in a manner that is connected with work, regardless
       of whether such conduct or failure to act occurs at the workplace or during
       work hours, which shall include:

             (a) Conduct or a failure to act demonstrating knowing disregard of the
       employer's interest or a knowing violation of the standards which the
       employer expects of his or her employee;

               (b) Conduct or a failure to act demonstrating carelessness or
       negligence in such degree or recurrence as to manifest culpability, wrongful
       intent, or a knowing disregard of the employer's interest or of the employee's
       duties and obligations to the employer;

               ....

            (e) A violation of an employer's rule, unless the employee can
       demonstrate that:

              a. He or she did not know, and could not reasonably know, of the rule's
       requirements;

               b. The rule is not lawful; or

               c. The rule is not fairly or consistently enforced[.]




                                               7
In its Protest Letter, Estes asserted that Wayne had been terminated for violation of the

Code of Conduct prohibiting "insubordination," which included "failure to follow a

supervisor's instructions, including the failure to observe supervisory rules, practices,

failure to perform jobs assigned and/or functions of your job." The Deputy's determination

denied benefits finding that Wayne "disregarded strict freight handling procedures" when

he incorrectly loaded freight, resulting in damage to the customer's product.

        The Commission, in adopting the decision of the Appeals Tribunal relied on Estes's

rule in its Code of Conduct prohibiting "poor performance" which is defined within the

Code as "failure to perform to acceptable standards." Although not specifically cited, it is

clear that the Commission found that Wayne was prohibited from receiving benefits

because he committed misconduct pursuant to section 288.030.1(23)(e).3 The Award

found that his poor performance constituted misconduct as a violation of the employer's

policy and that Wayne did not demonstrate that he fell within one of the exceptions to

section 288.030.1(23)(e)a-c.

        Missouri courts have made clear that there is a distinction "between conduct that

justifies termination and misconduct that precludes benefits[.]" Valley v. Div. of Emp't

Sec., 578 S.W.3d 865, 871 (Mo. App. W.D. 2019). "[S]imple acts of negligence, accidents

and mistakes, bad judgment, or poor workmanship do not rise to the level of scienter

required to constitute disqualifying misconduct." Wilson v. Progressive Waste Sols. of



        3
           The Award notes that Wayne violated his "employer's policy" and states that: "Claimant admitted that he
knew of the rule. The rule is not unlawful. Claimant failed to allege or show that the rule was not fairly or
consistently enforced." Clearly indicating that Wayne did not fall within the exceptions of section
288.030.1(23)(e)a-c.

                                                         8
Mo., Inc., 515 S.W.3d 804, 808 (Mo. App. E.D. 2017). However, in 2014, the General

Assembly added section 288.030.1(23)(e) to the definition of "misconduct." Subsection

(e) is unique because "[u]nlike sections 288.030.1(23)(a) and (b), which require an

employer to establish either a knowing or deliberate disregard of an employer's interest or

standards, or carelessness or negligence of such a degree or recurrence as to manifest

culpability or wrongful intent, section 288.030.1(23)(e) is devoid of any such requirement."

Con-Way Truckload, Inc. v. Wood, 511 S.W.3d 478, 485 (Mo. App. W.D. 2017) (citing

Esquivel v. Hy-Vee, Inc., 498 S.W.3d 832, 836-37 (Mo. App. W.D. 2016)). It also differs

from sections 288.030.1(23)(a) and (b) in that, once an employer demonstrates that the

employee violated an employer's rule, "the burden shifts to the employee to demonstrate a

statutory excuse that operates to remove the rule violation from the definition of

misconduct." Esquivel, 498 S.W.3d at 836. Missouri courts have yet to address whether

an employer may make a rule against mistakes, accidents, poor workmanship or bad

judgment--acts otherwise not disqualifying under section 288.030.1(23)(a) and (b)--and

eliminate a substantial segment of employees who would be otherwise entitled to benefits.

Such is the question before this court when reviewing Estes's rule against "poor

performance."

       The legislature created a clear guide by which Missouri courts are to interpret the

provisions of the Missouri Employment Security Law which provides unemployment

benefits to Missourians.

       1. As a guide to the interpretation and application of this law, the public
       policy of this state is declared to be as follows: Economic insecurity due to
       unemployment is a serious menace to health, morals, and welfare of the

                                             9
          people of this state resulting in a public calamity. The legislature, therefore,
          declares that in its considered judgment the public good and the general
          welfare of the citizens of this state require the enactment of this measure,
          under the police powers of the state, for compulsory setting aside of
          unemployment reserves to be used for the benefit of persons unemployed
          through no fault of their own.

          2. This law shall be liberally construed to accomplish its purpose to promote
          employment security both by increasing opportunities for jobs through the
          maintenance of a system of public employment offices and by providing for
          the payment of compensation to individuals in respect to their
          unemployment.

Section 288.020 (emphasis added).           "Disqualifying provisions of the unemployment

compensation law are to be construed against the disallowance of benefits to unemployed

but available workers." Scrivener Oil Co. v. Crider, 304 S.W.3d 261, 268 (Mo. App. S.D.

2010); Mo. Div. of Emp't Sec. v. Labor & Indus. Relations Comm'n of Mo., 651 S.W.2d

145, 148 (Mo. banc 1983).

          There has been very little case law interpreting the bounds of subsection (e). Con-

Way Truckload, Inc., 511 S.W.3d at 486. In Con-Way Truckload, Inc., the alleged rule

violation was a prohibition against "[o]verturning the assigned tractor or trailer." Id. at 481.

The Court found that the Commission properly found that overturning his trailer by taking

a highway entrance ramp at a greater rate of speed than was safe was an act of negligence

and poor judgment and not misconduct pursuant to sections 288.030.1(23)(a) and (b). Id.

at 484-85. The Court, however, remanded for the Commission to determine whether the

driver was disqualified from receiving benefits because he violated an employer's rule

under section 288.030.1(23)(e)—a determination the Commission had failed to make. Id.

at 487.


                                                10
       In Esquivel, this Court considered a violation of the employer's rule against "[v]erbal

or physical abuse of a customer or employee, the use of vulgarity or any misconduct around

customers or employees." Esquivel, 498 S.W.3d at 834. The employee admitted to using

profanity in the workplace which was overheard by fellow employees and a customer. Id.

The employee was denied benefits and on appeal, alleged that her use of profanity was

merely a minor violation and that it was not knowing or deliberate. Id. at 836. This Court

found that the plain language of section 288.030.1(23)(e) does not allow for "minor"

violations to be treated differently nor does it allow for a consideration of intent. Id. at

836. The Court specifically noted that:

       The 2014 amendment to section 288.030.1(23)'s definition of 'misconduct,'
       which eliminated the requirement that a rule violation be deliberate, must be
       given effect. "When the legislature amends a statute, it is presumed that its
       intent was to bring about some change in the existing law." Kolar v. First
       Student, Inc., 470 S.W.3d 770, 777 (Mo. App. E.D. 2015). It is thus
       irrelevant whether [employee's] admitted violation of [employer's] rule was
       deliberate, except insofar as such evidence might tend to establish that the
       employee did not know of the rule.

Id. at 837.

       Esquivel and Con-Way Truckload, Inc. are distinguishable from this case because

they involved company rules that were specific in nature. They barred particular and well-

defined acts. See also Jackson v. Walgreen Co., 516 S.W.3d 391, 392-93 (Mo. App. E.D.

2017) (employee terminated for violation of employer rule against "online harassment,

discrimination or bullying," including "sexual innuendos," for posting a pornographic

video to a male coworker's Facebook page and referencing fellow female coworkers in the




                                             11
post); Dortch v. Zoltek Corp., 493 S.W.3d 18, 19 (Mo. App. E.D. 2016) (employee

terminated for refusal to comply with employer's rule regarding drug testing).

       In this case, Estes's rule merely barred "poor performance" defined as "failure to

perform to acceptable standards." This rule offers no guidance to employees as to what

actions or conduct to take or avoid. It merely informs employees that they must perform

their job to the subjective standards of the employer whether or not those standards are

clearly defined to an employee. By its very nature, such a broad rule acts as a virtual

absolute bar for recovery of benefits in contradiction to the declared purpose of the

Missouri Employment Security Law, as specifically stated by the legislature in section

288.020. Such a rule requires perfect performance by Missouri employees or they are

subject to total loss of benefits upon termination. Additionally, it does not adequately

inform employees of the conduct required to be in compliance. As noted by the court in

Esquivel, if the rule bars something as subjective as "poor performance" it is unclear that

an employee could ever understand the conduct required or barred by the rule. By the same

token, we doubt that such a rule could ever meet the requirement of being "fairly" and

"consistently enforced."

       We will not interpret section 288.030.1(23)(e) in such a manner as to run contrary

to the General Assembly's stated purpose and against a clear mandate for liberal

construction to benefit displaced workers. Section 288.030.1(23)(e) has the purpose and

intent in allowing employers to promulgate clear rules that guide employees conduct and

to deny benefits to employees who violate such rules. At that point, the employee's conduct

is no longer "through no fault of their own." These rules, however, must prohibit or require

                                            12
specific and well-defined conduct such that an employee can conform to those rules. A

general rule merely prohibiting "poor performance" is too broad and would allow the denial

of benefits to an employee for a mistake or bad judgment that did not rise to the level of

"fault."

       The Commission erred in finding that Wayne was disqualified from receiving

unemployment benefits because he violated Estes's rule against poor performance. This

case, however, is also unusual because the basis for the Appeals Tribunal's decision, which

was later adopted by the Commission, was not the basis Estes gave for Wayne's

termination. In its Protest Letter, Estes stated that Wayne was terminated for violation of

the company's rule against "insubordination" defined as "failure to follow company rules,

policies, procedures or supervisor's instructions." The Protest Letter then outlined Wayne's

four Written Warnings in which he was reprimanded for failure to follow company

procedure regarding the loading of freight by failing to use proper tools and equipment or

stacking freight.

       A similar discrepancy occurred in Evans v. Division of Employment Security, 354

S.W.3d 220 (Mo. App. W.D. 2011). In Evans, the Commission found that the "[employee]

had been discharged for misconduct for failing to timely call his supervisor concerning the

difficulties he was experiencing at the [apartment he was managing for employer.]" Id. at

226. This was not, however, the employer's given reason for termination and thus the

Commission's finding was "wholly unsupported by the record" and was reversed. Id. at

226-27. Yet, in Evans this Court went on to consider the basis the employer actually gave

for dismissal and found that the Commission had made sufficient factual findings to

                                            13
consider the stated reason for dismissal; the Court ultimately determined that the employee

was not excluded from benefits on the basis which the employer asserted for dismissal. Id.

at 227.

          In this case, the Appeals Tribunal and the Commission denied Wayne benefits on

the basis of his violation of Estes's rule against "poor performance" rather than Estes's

stated reason for termination, "insubordination." Like Evans, we have before us sufficient

factual findings upon which we can make a determination as to Wayne's eligibility for

benefits.

          Estes's stated reason for termination due to insubordination is also premised on a

violation of a rule pursuant to of section 288.030.1(23)(e), but "insubordination" is more a

defined and concrete rule under the employer's Code than the rule against "poor

performance." Estes's rule against insubordination requires that the employee follow all

"supervisory rules" and "practices" as well as "perform jobs assigned and/or functions of

your job."      Wayne's alleged insubordination stems from his failure to follow his

supervisor's instructions as to how to properly load the freight. The only evidence of these

instructions were the Written Warnings given to Wayne. In them, he was told to use

"captive beams" and reminded to block, brace, wrap and strap the freight he was loading.

          Estes presented no evidence regarding why Wayne was discharged except that it

was for "poor performance." Wayne testified that he was discharged following an incident

in which he "mixed up" a gold medal shipment. According to Wayne's testimony, he mixed

up the shipment because of a numerical error. He admitted that he could have done "a

better job" and his only admitted error in loading was that the freight was "to [sic] high."

                                              14
        To be a violation of Estes's rule against insubordination, there must be evidence that

Wayne disregarded specific supervisory rules or practices or failed to perform his job as

assigned.4 Consistent with our discussion above, it is not sufficient that he was instructed

to perform a job and he did so poorly. Wayne testified that he was discharged after he

"mixed up" a gold medal shipment. Although he testified that he should have done "a

better job" and that the freight was "to [sic] high," there is no evidence to suggest that any

of the actions taken on this final shipment were a failure to follow "supervisory rules" and

"practices" or a failure to perform the job assigned. The only evidence regarding specific

instructions that Wayne received from his supervisor were the Written Warnings and there

is no evidence supporting a finding that he failed to follow those directives or any

correlation between the instructions given to him within those prior violations and the poor

performance on the load for which he was terminated.

        Although Wayne may have been discharged for cause because he performed his job

poorly, there was insufficient evidence that his actions rose to the level of insubordination

or misconduct which would support a finding of a denial of benefits. Therefore, we find

that even under the reason stated by Estes for Wayne's dismissal, he was not ineligible from

receiving unemployment benefits.




         4
           The company rules provided by Estes are devoid of direct references to the use of captive beams or
bracing for which Wayne was previously warned or the loading of the "gold medal" shipment which lead to his
dismissal. Although the April 17 and May 1 written warnings both mention that Wayne failed to use captive beams
when loading freight, there is nothing in the record which indicates that Wayne engaged in such conduct after he
received the last written warning on May 1.

                                                       15
                                          Conclusion

      The Commission erred in determining that Wayne was dismissed for violation of

Estes's general rule against poor performance. Further, there was insufficient evidence to

support a finding that Wayne violated Estes's rule against insubordination. As such, we

reverse the Order of the Commission and this case is remanded for the Commission to enter

an Order finding Wayne eligible for unemployment benefits.


                                         __________________________________
                                         Gary D. Witt, Judge

All concur




                                           16
