DUNSTAN KINCH vs. DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY.

GRANT, J. This is an appeal to this court (G. L. c. 151A, Section 42, as most recently amended by St. 1985, c. 314, Section 3) from a decision of the Municipal Court of the Roxbury District which, in effect, affirmed an amended decision of the board of review (board) in the Division of Employment Security (division) which had determined that the plaintiff was disqualified

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from receiving unemployment benefits because his discharge from employment had been shown to be "attributable solely to deliberate misconduct in wilful disregard of the [employing unit's] interest" within the meaning of G. L. c. 151A, Section 25(e)(2), as appearing in St. 1975, c. 684, Section 78. We reverse and remand to the division because the board failed to consider the question whether, in the circumstances, the plaintiff's behavior constituted "misconduct" within the meaning of Section 25(e)(2).

It is undisputed that the plaintiff was discharged because he failed and refused to report for overtime work for which his employer had scheduled him on Sunday, August 21, 1983. The plaintiff learned of that scheduling and voiced his refusal to his employer on the previous day, a Saturday. It is unclear from the record whether the plaintiff gave the employer any reason for his refusal at that time, but it seems likely that the refusal was motivated by the plaintiff's desire to attend to a personal matter on the following day. By the time the matter came on for hearing before a review examiner (G. L. c. 151A, Section 42[a]) on the employer's appeal from an initial award of unemployment benefits, the plaintiff was complaining (albeit in somewhat inarticulate fashion) that the Saturday on which he had indicated his refusal had been his sixth consecutive day of work for the employer and that the plaintiff's working on the next day (Sunday) would have resulted in a violation of law. See G. L. c. 149, Section 48. [Note 1] The examiner seems to have grasped the import of the plaintiff's complaint, [Note 2] but nothing

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came of it, perhaps because the plaintiff was then appearing pro se and obviously had no idea of how to go about asserting his rights.

The cases are legion to the effect that the director, the hearing examiners and the board (G. L. c. 151A, Sections 1[d], 40 & 41) are all under a duty to explore and make findings of fact as to the employee's state of mind at the time of his misconduct whenever an employer attempts to invoke the provisions of G. L. c. 151A, Section 25(e)(2), to defeat the employee's claim for unemployment benefits. See, to name only a few, Garfield v. Director of the Div. of Employment Sec., 377 Mass. 94, 97 (1979); Reavey v. Director of the Div. of Employment Sec., 377 Mass. 913, 914 (1979); Torres v. Director of the Div. of Employment Sec., 387 Mass. 776, 779 (1982); Jones v. Director of the Div. of Employment Sec., 392 Mass. 148, 150 (1984); Cantres v. Director of the Div. of Employment Sec., 396 Mass. 226, 228, 229-231 (1985). This is the first occasion on which either of our appellate courts has been called upon to make an express determination of the meaning of the word "misconduct" as used in Section 25(e)(2). The novelty of the question need not detain us because the decided cases provide all the guidelines necessary to a resolution of that question for the purposes of this case. Thus, the Garfield case speaks of misconduct in terms of "[an] intentional disregard of standards of behavior which [the] employer has a right to expect" and of "the reasonableness of [the employer's] expectation." 377 Mass. at 97. In Hawkins v. Director of the Div. of Employment Sec., the court spoke of misconduct in terms of the employee's "refusal to comply with his employer's reasonable request" for action.

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392 Mass. 305, 308 (1984). In the Cantres case the court said that in applying Section 25(e)(2) the "board must take into account the employer's expectations of the employee, the notice to the employee of these expectations, and the reasonableness of the expectations." 396 Mass. at 231.

An expectation on the part of an employer that an hourly employee will accede to a request that he work in violation of G. L. c. 149, Section 48, would not be a reasonable one within the meaning of any of the cases just cited. A demand that an employee work in violation of the statute would be tantamount to insistence on "behavior which [the] employer has [no] right to expect" within the meaning of the Garfield case. Depriving an employee of unemployment benefits solely for the reason that he refuses to yield to such a demand would be against public policy (compare DiLeo v. Daneault, 329 Mass. 590, 595-596 [1953]; DeRose v. Putnam Management Co., 398 Mass. 205, 208-211 [1986]) and could hardly have been within the contemplation of the Legislature when it enacted what is now G. L. c. 151A, Section 25(e)(2). See Goodridge v. Director of the Div. of Employment Sec., 375 Mass. 434, 436 (1978); Garfield v. Director of the Div. of Employment Sec., 377 Mass. at 95; Jones v. Director of the Div. of Employment Sec., 392 Mass. at 150. Accordingly, we conclude that an employee's refusal to work in circumstances which would result in violation of G. L. c. 149, Section 48, does not constitute "misconduct" within the meaning of Section 25(e)(2). Our conclusion holds without regard to whether the employee is aware of or asserts his rights under Section 48 at the time of his discharge.

As we have already pointed out, the amended decision of the board under judicial review reflects no consideration of the question whether the plaintiff's behavior amounted to "misconduct" within the meaning of Section 25(e)(2). "An administrative agency must make findings on each factual issue essential to its decision." Reavey v. Director of the Div. of Employment Sec., 377 Mass. at 914. Coulouras v. Director of the Div. of Employment Sec., 394 Mass. 817, 820 (1985). The present decision is deficient in that respect.

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Accordingly, the decision of the Municipal Court is reversed, and the matter is remanded to the Division of Employment Security for a determination by the board of review of the question whether the plaintiff's working on Sunday, August 21, 1983, would have resulted in a violation of G. L. c. 149, Section 48. In the alternative, the board may send the matter back to the last review examiner who acted on the matter for additional findings and for determination of the same issue. In either event, the determination is to be made on the evidence already in the record and such additional evidence as may be offered by the plaintiff or by the employer. If it is determined by the division that a violation of the statute would have resulted from the plaintiff's working on the day in question, he is to be awarded unemployment benefits without further ado.

So ordered.