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PIGGLY WIGGLY OF BAY SPRINGS AND DIXIELAND FOOD STORES, INC. v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION AND BOBBIE N. READ

MARCH 13, 1985

PIGGLY WIGGLY OF BAY SPRINGS AND DIXIELAND FOOD STORES, INC.
v.
MISSISSIPPI EMPLOYMENT SECURITY COMMISSION AND BOBBIE N. READ



BEFORE ROY NOBLE LEE, DAN LEE AND PRATHER

PRATHER, JUSTICE, FOR THE COURT:

This is an appeal from an order of the Circuit Court of Jasper County which affirmed a ruling of the Board of Review of the Mississippi Employment Security Commission holding that appellee Bobbie Read was not guilty of misconduct connected with her work so as to be disqualified from receiving unemployment benefits.

Piggly Wiggly appeals, urging that the decision of the Board of Review is erroneous as a matter of law and is unsupported by substantial evidence.

 I.

 Appellee Bobbie Nell Read was employed by Piggly Wiggly of Bay Springs as a cashier for several years until July 6, 1981, when she was discharged. In June of 1981, due to inventory shortages, Piggly Wiggly had requested that all employees take a polygraph examination. Ms. Read refused to take the examination. However, Ms. Read voluntarily signed a "consent to restitution" form which was prepared by a polygraph firm which had been retained by Read's employer in which she acknowledged the "theft" *fn1 of $98.00 worth of "merchandise" . This figure represented the estimated value of food, coffee, etc. obtained from the Piggly Wiggly delicatessen without payment by Ms. Read over the two year period of her employment.

 Following her dismissal, Read filed a claim for unemployment benefits with the Mississippi Employment Security Commission and the claims examiner allowed the claim. Piggly Wiggly protested Read's eligibility for benefits, alleging

 that Read was discharged for misconduct connected with her work. The Mississippi Employment Security Commission referee determined that appellee's actions did not constitute misconduct and affirmed the decision of the claims examiner allowing the unemployment benefits.

 Piggly Wiggly appealed to the Mississippi Employment Security Commission Board of Review, which made the following findings of fact.

 FINDINGS OF FACT: The claimant was employed as a cashier at the Piggly Wiggly Store in Bay Springs, Mississippi. She was discharged from this employment on July 6, 1981. The claimant had indicated that she was discharged because she refused to take a polygraph test as requested by the employer. The employer testified that she was not discharged for her failure to take such test but that she was discharged after she signed an agreement to make restitution for certain items of food or drink which she allegedly consumed from the delicatessen in the store without paying for same. The claimant testified that she had never wilfully or intentionally consumed any food or beverage without paying for such. She admitted that it was possible that there may have been some occasions when she drank coffee without paying for such because of the hurried nature of some of her breaks and she could not positively state that such coffee had always been paid for. She stated, however, that if she had ever eaten or consumed anything from the delicatessen without paying for it, it was due to oversight and not intentional.

 OPINION: Section 71-5-513 (2) of the Law provides that an individual shall be disqualified for benefits if she is discharged for misconduct connected with her work.

 The term "misconduct" as used in the Mississippi Employment Security Law is usually defined as an act of wanton or wilful disregard of the employer's interests, a deliberate violation of the employer's rules, a disregard of the standard of behaviour [sic] which the employer has the right to expect of an employee, or negligence indicating an intentional disregard of the employer's interests, or of the employee's duties and obligations to the employer.

 The Board of Review is of the opinion that the

 actions on the part of the claimant did not constitute misconduct connected with her work as that term is used in the Law. The evidence does not substantiate a finding that the claimant wilfully or deliberately violated any rule or regulations of the employer or wilfully or intentionally failed to pay for any item from the delicatessen which the claimant ...


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