An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-519


Filed: 3 May 2005


         v.                        Richmond County
                                No. 03 CVS 1056

    Appeal by respondent from order entered 6 January 2004 by Judge Larry G. Ford in Richmond County Superior Court. Heard in the Court of Appeals 25 April 2005.

    No brief filed by petitioner-appellee.

    Chief Counsel C. Coleman Billingsley, Jr., by Camilla F. McClain, for respondent-appellant Employment Security Commission of North Carolina.

    CALABRIA, Judge.

    The Employment Security Commission of North Carolina (“ESC”) appeals from an order of the Richmond County Superior Court reversing ESC's disqualification of petitioner-appellee from receiving unemployment insurance benefits and remanding the matter to the ESC. We reverse.
    In 2003, Begita G. Wilkerson (“petitioner”) filed a claim for unemployment insurance benefits upon being terminated from her job. The matter was referred to an adjudicator who issued adetermination that petitioner was discharged for misconduct connected with work and was, therefore, disqualified from receiving benefits pursuant to N.C. Gen. Stat. § 96-14(2). The matter was appealed to an appeals referee. After holding an evidentiary hearing, the appeals referee entered an order concluding that petitioner was discharged for misconduct and determined she was disqualified from receiving benefits. Petitioner appealed to the ESC.
    The ESC, by and through its Chairman, entered an order on 1 October 2003 and found the following pertinent findings:
        4. Claimant was hired as a restaurant manager. On or about May 17, 2003, claimant agreed to work the night shift so that the assistant manager could be off from work. Claimant was also scheduled to report to work at 5:00 the following morning.

        5. Claimant did not leave the restaurant until 2:00 a.m. on May 18, 2003. Since claimant was scheduled to report back to work at 5:00 a.m. that same morning, claimant gave the restaurant key to an employee and asked that the employee open the restaurant at 5:00 that morning.
        6. Claimant was not authorized by the employer to provide the key to the employee to open the restaurant. The claimant was subsequently discharged.

        7. Claimant took $48.00 from the employer's safe to purchase a hot water heater for her residence. The claimant did not have authorization from the employer to take the $48.00. The claimant left an “IOU” in the safe indicating her intent to repay the money to the employer. The employer became aware of the matter after the claimant's discharge. As such, the unauthorized removal of $48.00 by the claimant cannot be used as a reason for the claimant's discharge from employment.Based on these findings, the ESC concluded that petitioner was disqualified for unemployment benefits.
    Upon petitioner's appeal, the superior court issued an order finding, inter alia, (1) petitioner was unable to report to work at 5:00 a.m. and , in order to have the restaurant open, asked one of the employees, Jackie Rorie, to open the restaurant at 5:00 a.m.; (2) the employer did not offer any evidence to show that there was a written policy regarding who was authorized to have restaurant keys; (3) that the claimant made the decision to give the key to Jackie Rorie, an employee she had been training to be the assistant manager; (4) that there was no evidence that letting Jackie Rorie open the restaurant caused any damage to the restaurant or to the owner of the restaurant; and (5) that the findings in this matter do not support a finding that the claimant was discharged for misconduct connected with her work. The superior court ordered petitioner's disqualification from receiving unemployment benefits be reversed and the matter remanded to the ESC for payment of benefits. ESC appeals on the issue of whether the superior court erred in failing to affirm the ESC's conclusion that petitioner had been discharged for misconduct connected with work.
    The same standard of review of decisions of the Employment Security Commission of North Carolina applies in the superior court and in the appellate division: “the findings of fact by the Commission, if there is any competent evidence to support them and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” N.C. Gen.Stat. § 96-15(i) (2003). Accordingly, like the superior court, this Court will only review a decision by the Commission to determine whether the facts found by the Commission are supported by competent evidence and, if so, whether the findings support the conclusions of law. Where no exception is taken to the findings, they are presumed to be supported by the evidence and are binding on appeal. In re Hagan v. Peden Steel Co., 57 N.C. App. 363, 364, 291 S.E.2d 308, 309 (1982). With no exception taken to the findings of fact made by the ESC, the sole question to be considered is whether ESC's findings sustain its conclusion that petitioner was disqualified from receiving unemployment compensation benefits by virtue of G.S. 96-14.
    “Ordinarily a claimant is presumed to be entitled to benefits under the Unemployment Compensation Act, but this is a rebuttable presumption with the burden on the employer to show circumstances which disqualify the claimant.” Intercraft Industries Corp. v. Morrison, 305 N.C. 373, 376, 289 S.E.2d 357, 359 (1982). Under the statute, a person shall be disqualified from benefits “if it is determined by the Commission that such individual is, at the time such claim is filed, unemployed because he was discharged for misconduct connected with his work.” N.C. Gen. Stat. § 96-14(2) (2003). “Misconduct,” in the context of N.C. Gen. Stat. § 96-14(2), has been defined as “conduct which shows a wanton or wilful disregard for the employer's interest, a deliberate violation of the employer's rules, or a wrongful intent.” Intercraft Industries Corp., 305 N.C. at 375, 289 S.E.2d at 359. “Misconduct” may consist in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee. In re Collingsworth, 17 N.C. App. 340, 343-44, 194 S.E.2d 210, 212-13 (1973). “[H]arm to the employer is not an element of misconduct as defined by G.S. 96-14(2), which speaks only of conduct and does not mention consequences.” In re Gregory v. N.C. Dept. of Revenue, 93 N.C. App. 785, 786, 379 S.E.2d 51, 52 (1989).
    Here, the ESC found as fact that as restaurant manager, petitioner was required to open the restaurant at 5:00 a.m. on 18 May 2003, that petitioner asked an employee to open the restaurant for her and that she gave that employee the restaurant key without specific approval or authorization by the employer. From these findings the Commission logically concluded that petitioner's conduct was “misconduct connected with work” as defined by case law and properly decided that petitioner was disqualified from unemployment benefits. We hold that the findings of fact adequately support the conclusion and decision of the Commission. Accordingly, the superior court's order is reversed and this case is remanded with instructions to affirm ESC's decision.
    Reversed and remanded.
    Chief Judge MARTIN and Judge McCULLOUGH concur.
    Report per Rule 30(e).

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