Debra D. Little v. MDES and Kentucky Fried Chicken of Amory
Debra Little was employed with Kentucky Fried Chicken in Amory. She was discharged for taking company merchandise without paying for it. On her last day, she allegedly took 3 containers of desert and was caught trying to leave the store with the items without paying for them. Per the employer, she was confronted and admitted wrongdoing and expressed remorse. She was subsequently terminated for this incident.
Ms. Little filed a claim for unemployment benefits and was disqualified from receiving such benefits by the claims examiner based on the misconduct section of the law. She filed an appeal to the appeals referee and a hearing was held at which the claimant was the only party to show up. The employer did not attend. The referee conducted the hearing and asked questions of the claimant. During her testimony, she again admitted that she had taken the items without paying for them. The referee sustained the disqualification, as did the Board of Review. She subsequently filed an appeal to the Circuit Court, where the decision disqualifying her was again sustained. She then filed her appeal to the Court of Appeals of the State of Mississippi for further review.
In her appeal, the claimant contended that KFC failed to meet its burden of proof in accordance with MDES Law, section 71-5-513A(1)(c), which provides in part, “ the burden of proof of misconduct shall be on the employer.” This section makes it clear that the employer bears that burden of proving disqualifying misconduct. When KFC failed to appear at the hearing, the referee attempted to satisfy KFC’s burden of proof when he asked the questions that elicited Little’s answers. The court ruled in the absence of evidence of misconduct established by KFC, Little was not required to offer rebuttal evidence or an explanation. The requirement by the referee that Little offer evidence to rebut KFC’s allegation of misconduct, when no evidence of misconduct had been offered, was an improper shifting of the burden of proof. The court further ruled that when the improperly obtained evidence was excluded, there was no substantive evidence to support the denial of benefits, and the claimant was eligible to receive unemployment.
Based on this decision, in the future in all cases when the reason for separation was a discharge for misconduct, the MDES referee will take testimony from the employer, whether the claimant is present or not. This will be the case whether the original decision was disqualification or allowance, and regardless of who filed the appeal. How will this affect you? Beginning now, if the reason for job separation was for a reason other than voluntarily leaving the job, we will be offering testimony at all unemployment hearings, even if the claimant is not there.