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DELAWARE ADMINISTRATION Appellant
vs.
CHARLES JONES and the UNEMPLOYMENT INSURANCE APPEAL BOARD Appellees.
 
Case:
C.A. No. 94A-04-027
 
Location:
SUPERIOR COURT OF DELAWARE NEW CASTLE
 
Date:
January 23 1995 Decided
 
Attorneys:
Sheldon Sandler Esquire and Omar McNeill Esquire Wilmington Delaware. Counsels for Appellant.Charles Jones Pro Se Appellee.Kevin Slattery Deputy Counsel General Department of Justice Wilmington Delaware. Counsel for Appellee Unemployment Insurance Appeal Board.
 
Court:
John E. Babiarz The Court.
 
Author:
The Hon. Justice John E. Babiarz
 

This is an appeal from a decision of the Unemployment Insurance Appeal Board (the "Board"). The Board determined that the claimant-appellee Charles Jones is entitled to receive unemployment compensation benefits because his employment was not terminated for "just cause" within the meaning of 19 Del. C. SEC. 3315 (2). The appellant is claimant's former employer the Delaware Administration for Regional Transit ("DART").

Mr. Jones was terminated from his position as a third-shift fleet foreman with DART on September 29 1993. In December 1993 Mr. Jones filed a claim for unemployment compensation benefits with the Delaware Department of Labor. On January 10 1994 a Claims Deputy determined that Mr. Jones was not entitled to receive benefits because he was terminated for "just cause" under 19 Del. C. SEC. 3315 (2). Mr. Jones filed a timely appeal from the decision of the Claims Deputy. Following a hearing at which DART was not present an Appeals Referee reversed the decision of the Claims Deputy and held that Mr. Jones is entitled to receive unemployment compensation benefits. In February 1994 DART filed with the Board a timely appeal from the decision of the Appeals Referee. Following a hearing at which evidence was presented by both DART and Mr. Jones the Board affirmed the decision of the Appeals Referee. DART timely filed this appeal pursuant to 19 Del. C. SEC. 3323.

DART contends that the Board's decision should be reversed for two reasons. First DART argues that the Board's decision is not supported by substantial evidence on the record and is not free from legal error. Second DART asserts that the Board did not permit it to present all relevant evidence and that therefore it was denied due process of law. For the reasons set forth herein the decision of the Board will be affirmed in part and reversed in part. The matter will be remanded to the Board for further proceedings.

I. FACTS

The facts of record in this case are largely undisputed. Mr. Jones began his employment with DART on February 8 1982. Prior to his termination Mr. Jones held two positions with DART which were supervisory in nature. In one of these positions Mr. Jones was a supervisor of certain DART foremen. Mr. Jones held this position for a period of time prior to March 4 1993 when he was demoted to the position of third-shift fleet foreman. This position was also supervisory in nature; Mr. Jones had authority over twelve people. Apparently Mr. Jones was demoted to the fleet foreman position because his work performance as a supervisor of foremen was unsatisfactory.

The evidence presented by DART consisted primarily of a series of written warnings documenting the claimant's poor job performance. Mr. Jones acknowledged having received each of the warnings prior to his termination. The first warning was issued to Mr. Jones on December 9 1991. (Record of Proceedings ("Record") at 81). At this time Mr. Jones was admonished in writing for failing to prepare a written evaluation of a probationary employee.

The next warning was issued on March 11 1992. (Record at 82). This time Mr. Jones was reprimanded in writing for his "erroneous and careless data entry in the Equipment Maintenance System."

Two weeks later on March 23 1992 Mr. Jones was given a written warning and a two-day suspension without pay. (Record at 83). This resulted from the claimant's "carelessness" and negligence in improperly supervising an employee who fell asleep on the job.

On November 30 1992 Mr. Jones was reprimanded in writing for venting air conditioning refrigerant into the atmosphere. (Record at 84). This warning contained an admonition that future acts of the same nature would result in progressive disciplinary action and if warranted his termination.

On March 4 1993 Mr. Jones received a memorandum in connection with the start of his new position as third-shift fleet foreman. (Record at 89). In the memorandum Mr. Jones was warned that "poor production loss of production continuity excessive lag time or poor housekeeping" would not be tolerated.

On April 15 1993 Mr. Jones received a written warning for failing to insure that his subordinates worked through their entire shifts. (Record at 83). The memorandum issued to Mr. Jones indicates that his subordinates remained idle for more than an hour when there was work that could have been done. This warning again advised Mr. Jones that he may be terminated if his performance did not improve.

Two weeks later on April 29 1993 Mr. Jones received a written warning based upon an allegation by one of claimant's subordinates that claimant routinely permitted employees to leave the workplace without proper authorization. (Record at 90). Again Mr. Jones was advised that his failure to comply with company policy would result in his termination.

On June 7 1993 Mr. Jones received another written warning. (Record at 91). This time he was admonished for his failure to properly report an traffic accident involving a DART driver and for his failure to have the driver submit to a drug test as required by company policy. Additionally Mr. Jones was placed on six months probation as a result of this violation.

On July 16 1993 Mr. Jones received a memorandum documenting certain "observations" made by his supervisor during claimant's shift on the prior day. (Record at 86). The memorandum advised Mr. Jones that vehicles were being "blown out" without the "free box" covered; that an employee was walking laps around Lot #1 for "exercise"; that employees were not using their "bump caps" (helmets); and that the bus washer and vacuum were not working properly.

In addition to the written warnings there was testimony by Donald Nizer a DART administrator that the claimant's poor performance was not due to incompetence. (Record at 55-56). Rather Mr. Nizer testified that Mr. Jones did not understand the intensity required to do the job. Mr. Nizer also indicated that Mr. Jones held a second job which compromised his ability to properly perform his duties for DART. Id. Finally Mr. Nizer testified that he personally observed an unauthorized female visitor (an off-duty DART driver) in claimant's office on one occasion. (Record at 74-76). However Mr. Nizer testified that he was not sure that Mr. Jones was aware of the woman's presence because Mr. Jones was outside of his office at the time. Id.

Mr. Jones was terminated on September 29 1993. DART's termination letter states that several violations occurred during Mr. Jones' probationary period which began on June 7 1993. (Record at 87). According to the letter the violations included the following: (1) a change in procedure which allowed vehicles to be bypassed in the fueling operation resulting in four buses running out of fuel while in service; (2) failure to document improper maintenance by a mechanic during the replacement of two engine air compressors; (3) permitting employees to smoke in unauthorized areas of the workplace; (4) failure to control the production man-hours of subordinates and permitting employees to leave the workplace without clocking out; (5) failure to require employees to wear protective safety equipment; (6) permitting female visitors into the industrial work area; (7) and poor shift production in that jobs were not completed as scheduled due to claimant's complacent attitude and his misdirection of the work force.

The Board summarieed the evidence presented by Mr. Jones as follows:

The claimant Charles A. Jones testified that he did not do anything he considered as wrong. Most of the incidents occurred when he was in a different location and he could not do anything about them. He was the supervisor over twelve people--five in the shop and seven in job service (cleaning and servicing of the buses). The claimant admitted that he had the opportunity to grieve each incident however he chose not to do so. With regard to the incident with the compressors there were no set procedures to be followed. With regard to the allegation that people were leaving early he testified that he never saw anyone leave early. He gave one individual permission to leave and get tools out of his car. With regard to the accident the claimant testified that he documented it and called Mr. Patson [claimant's supervisor] at home. He and the next shift foreman took joint responsibility for documenting the accident. As far as the drug test was concerned he followed the employer's prior practice which required permission from supervision. The new policy had only been in effect a few months at that time. As far as the unauthorized individual being in his office he stated that he was not around when it occurred and on the one instance the individual DART operator was returning keys.

Board Decision at 2; Record at 34.

II. THE BOARD'S DECISION

The Board did not make specific findings with respect to each of DART's allegations of misconduct on the part of Mr. Jones. Rather the Board concluded that the record demonstrated a history of "poor work performance" on the part of Mr. Jones. (Board Decision at 4; Record at 36). However the Board decided that Mr. Jones was not discharged for "just cause" under 19 Del. C. SEC. 3315 (2) because Mr. Jones' poor work performance did not amount to "wilful and wanton misconduct". (Board Decision at 4; Record at 36). In reaching its conclusion the Board that stated the law is as follows:

In the case of a discharge involving poor work performance the employer has the burden of proving that the claimant has shown the ability to perform his or her job duties in the past and that the subsequent failure to adequately perform those duties is due to a wilful neglect as opposed to simple negligence or inadvertence.

Board Decision at 4; Record at 36.

In support of its conclusion that DART had not satisfied this burden of proof the Board found that the incidents which occurred in 1991 and 1992 were "simply too remote in time and there is no indication that similar incidents occurred in the future." (Board Decision at 4; Record at 36). The Board disregarded as hearsay the April 29 1993 reprimand regarding an allegation that claimant permitted subordinates to leave the workplace without proper authorization. Id. With regard to the June 7 1993 warning over claimant's failure to properly report a traffic accident involving a DART driver and his failure to require the driver to submit to a drug test the Board stated that "[t]here is no evidence in the record that this type of situation occurred thereafter." Id. The Board also found that there was no indication in the record that the unauthorized presence of females in Mr. Jones' office occurred after Mr. Jones was confronted with the situation. Id. In short the Board found that Mr. Jones was Counselled with regard to many problems but that there was no "particular pattern of misconduct with regard to any particular type of violation." Id.

From all of the foregoing the Board concluded as follows:

All that the Board can infer from the record is that the claimant was simply a poor manager. There is little however to suggest that his actions were anything other than negligent or inadvertent. This case simply boils down to a situation of poor work performance. Poor work performance without more does not amount to sufficient cause to disqualify someone from the receipt of unemployment benefits.

Board Decision at 4; Record at 36.

III. STANDARD OF REVIEW

Court's role in reviewing a decision of the Unemployment Insurance Appeal Board is to determine whether the Board's findings are supported by substantial evidence and are free from legal error. Ridings v. Unemployment Ins. Appeal Bd. Del. Super. 407 A.2d 238 239 (1979). See also 19 Del. C. SEC. 3323 (a) (The Board's findings as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of Court shall be confined to questions of law. ). Additionally Court may overturn a decision of the Board if the decision evinces a capricious disregard for competent evidence. Ridings 407 A.2d at 239. "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Breeding v. Contractors-One-Inc. Del. Supr. 549 A.2d 1102 1104 (1988). Substantial evidence has been described as more than a mere scintilla of evidence but less than a preponderance of the evidence. *fn1 Id. These

principles govern the scope of Court's review of the Board's decision.

IV. DISCUSSION

A. Legal Error in the Board's Decision.

The statutory provision at issue in this case is 19 Del. C. SEC. 3315 which provides in pertinent part:

An individual shall be disqualified for benefits:

(2) For the week in which he was discharged from his work for just cause in connection with his work . . . .

19 Del. C. Sec 3315 (emphasis supplied). The burden is on the employer to show that the employee was terminated for "just cause." See Evans v. Tansley Del. Supr. C.A. No. 86AAU-9 Horsey J. (Mar. 29 1988) ORDER at 4-5; Austin v. Fisher Scientific Co. Del. Super. C.A. No. 92A-03-007 Goldstein J. (Apr. 22 1993) slip op. at 2-3. Delaware courts have held that "just cause" means wilful or wanton conduct in violation of the employer's interest the employee's duties or the employee's expected standard of conduct. Unemployment Ins. Appeal Bd. v. Martin Del. Supr. 431 A.2d 1265 1267 (1981); Abex Corp. v. Todd Del. Super. 235 A.2d 271 272 (1967) cited with approval in Ortiz v. Unemployment Ins. Appeal Bd. Del. Supr. 317 A.2d 100 101 (1974).

The decision of the Board must be reversed because it is based upon erroneous legal principles. In particular the Board's decision (1) incorrectly places upon the employer the burden of proving that the claimant has shown the ability to perform his or her job duties in the past; (2) misstates the legal standard for determining whether just cause is established; and (3) erroneously implies that "just cause" does not exist in poor work performance cases absent a pattern of misconduct related to a particular type of violation.

First the Board held DART to a burden of proof more stringent than that required to establish "just cause" under Delaware law. The Board's decision incorrectly states that DART had "the burden of proving that the claimant has shown the ability to perform his or her job duties in the past . . . ." (Board Decision at 4; Record at 36). It is true that "just cause" termination does not include dismissal for "mere inefficiency unsatisfactory conduct or failure of performance as a result of inability or incapacity inadvertence in isolated instances or good faith errors of judgment." Starkey v. Unemployment Ins. Appeal Bd. Del. Super. 340 A.2d 165 166-67 (1975) aff'd Del. Supr. 364 A.2d 651 (1976). However the Court is unaware of any case where an employer was required to demonstrate the claimant's adequate past performance of job duties in order to show "just cause" for termination due to poor work performance. Under Delaware law all that is needed to satisfy the "just cause" standard is a showing by the employer that the terminated employee engaged in wilful or wanton misconduct. *fn2 Unemployment Ins. Appeal Bd. v. Martin Del. Supr. 431 A.2d 1265 1267 (1981); Abex Corp. v. Todd Del. Super. 235 A.2d 271 272 (1967).

Second the Board's decision frequently misstates the employer's burden of proof in order to demonstrate "just cause" for a dismissal. On two instances the Board's decision incorrectly states that the employer must show that the terminated employee engaged in misconduct which is both "willful and wanton". (Board Decision at 3-4; Record at 35-36) (emphasis supplied). On another instance the Board's decision incorrectly omits the word "wanton" when describing the employer's burden of proof; that is the Board states that the employer must prove that the employee's "failure to adequately perform [his or her] duties is due to wilful neglect as opposed to simple negligence or inadvertence." (Board Decision at 4; Record at 36) (emphasis supplied). Only once did the Board correctly state that it is the employer's burden to show that the employee was dismissed for engaging in "wilful or wanton" misconduct. (Board Decision at 4; Record at 36) (emphasis supplied).

The distinction between conduct which is "willful" and that which is "wanton" is an important one. The term "wilful" implies actual specific or evil intent. Boughton v. Division of Unemployment Ins. of the Dep't of Labor Del. Super. 300 A.2d 25 26 (1972). In contrast the term "wanton" does not require proof of bad motive or intent to cause harm. Id.; Coleman v. Department of Labor Del. Super. 288 A.2d 285 288 (1972). Rather wanton means conduct which is heedless malicious or reckless. Boughton 300 A.2d at 26; Coleman 288 A.2d at 288. Accordingly it is more difficult for an employer to prove that an employee's misconduct was "wilful" (i.e. intentional) than it is prove that an employee's misconduct was "wanton" (i.e. reckless). The Board's decision fails to appreciate that standing alone proof of either willful or wanton misconduct is sufficient to satisfy the "just cause" standard under 19 Del. C. Sec. 3315 (2). Boughton 300 A.2d at 26.

The Board found that "there is little . . . to suggest that [claimant's] actions were anything other than negligent or inadvertent." (Board Decision at 4; Record at 36). A necessary implication of this finding is that the Board concluded that claimant's misconduct was not "willful" in nature. In reaching this conclusion there is no doubt that the Board properly considered whether the claimant's misconduct was willful. *fn3 The Board's implicit finding that the claimant's misconduct was not "willful" is supported by substantial evidence on the record. Therefore the Board's implicit conclusion that claimant's misconduct was not willful must be accepted by Court. 19 Del. C. SEC. 3323 (a).

Similarly the Board's finding that claimant's actions were nothing more than "negligent or inadvertent" implies a Board conclusion that the claimant's conduct was not wanton (i.e. reckless or heedless) in nature. However Court cannot accept this implied finding because the Court is not satisfied that the Board ever considered whether the claimant's conduct was "wanton" in nature. The Board's decision fails to expressly discuss the possibility that the claimant's behavior was wanton in nature. This coupled with the Board's erroneous descriptions of the employer's burden of proof leads Court to conclude that the Board improperly failed to consider whether the claimant's conduct was "wanton" (i.e. reckless or heedless) in nature. *fn4 Accordingly the Board's decision fails to appreciate that proof of wanton misconduct standing alone satisfies the "just cause" standard. If the Board had applied the correct legal standard it may have found that the claimant's misconduct-although unintentional and therefore not willful-was wanton in nature. Such a finding would dictate a conclusion that the claimant was terminated for "just cause" under 19 Del. C. SEC. 3315 (2).

Third the Board's decision erroneously implies that "just cause" to dismiss an employee for poor work performance does not exist absent "a particular pattern of misconduct with regard to a particular type of violation." (Board Decision at 4; Record at 36). As stated previously the "just cause" standard is satisfied if the employer demonstrates that the employee engaged in misconduct which is willful or wanton in nature. There is no requirement that the employer demonstrate a pattern of misconduct. *fn5 Nonetheless in a case involving dismissal for poor work performance such as the case sub judice the employer may attempt to demonstrate "just cause" by showing a "pattern" of misconduct which is willful or wanton in nature. However this "pattern" of misconduct need not relate to a particular type of violation in order to satisfy the just cause standard. The Board erred as a matter of law in holding DART to this more stringent standard of proof.

This Court's decision in Mack v. Unemployment Ins. Appeal Bd. Del. Super. C.A. No. 87A-FE-1 Ridgely J. (Dec. 1 1987) (ORDER) supports the proposition that an employer need not demonstrate a pattern of misconduct relating to a particular type of violation in order to satisfy the "just cause" standard. The Mack court affirmed a Board decision which held that the claimant a teacher at a vocational-technical school was dismissed from employment for "just cause" based on "numerous instances of improper conduct . . . ." Mack ORDER at 5. The numerous instances of misconduct included the following: violating school policy which required daily deposits of monies collected from students; inconsistency in grading and discipline; difficulty with teacher-student rapport; leaving classroom unsupervised while students used hot curling irons during an exam and one student burned off a portion of her hair; permitting an in-class discussion about an out-of-school subject and failing to terminate the discussion at an early stage as required by school policy; and participating in physical contact with students and making an inaccurate and misleading report concerning the incident. Id. at 5-6. Although Mack clearly involved a "pattern" of misconduct it cannot be said that there was a pattern with respect to any particular type of violation. Thus Mack supports this Court's conclusion that an employer need not show a pattern of misconduct with respect to a particular violation in order to prove "just cause" for termination of an employee.

Because the decision of the Board is tainted with legal error this case must be remanded to the Board for further proceedings. On remand the Board should consider whether the claimant's misconduct was "wanton" in nature. *fn6 Thus the Board should consider whether the claimant's misconduct was "heedless malicious or reckless" in nature. Boughton 300 A.2d at 26. Claimant's conduct need not be intentional or wilful in order for the Board to find "just cause" for claimant's termination. See Id. Similarly DART need not show a pattern of misconduct relating to a particular type of violation in order to demonstrate "just cause" for termination. Proof of wanton misconduct or a pattern thereof on the part of claimant is sufficient to support a finding of "just cause" for claimant's discharge.

Additionally the Board should be mindful that under Delaware law negligent performance may come to constitute 'just cause' if it occurs despite warnings and is not excusable as an expected result of either the nature of the job or the ability of the employee. Hudson Transfer & Constr. Co.. Inc. v. Vick No. 161 1976 O'Hara J. (Feb. 1 1977) letter op. at 2. This standard was not discussed in the Board's opinion but it would appear to have great relevance in light of the numerous written warnings that claimant received in the instant case. In connection with this standard the Board should make factual findings as to whether the claimant's misconduct resulted from "the nature of the job or the ability of the [claimant]." Hudson letter op. at 2; see also Starkey 340 A.2d at 166-67 ("just cause" does not exist where employee fails to perform as a result of inability or incapacity). The Board may find it necessary to receive additional evidence in order to make factual findings on these issues.

Furthermore the Board's decision on remand should indicate how the Board weighs each of DART's allegations of misconduct on the part of the claimant. In this regard Court notes that the Board's current decision fails to discuss the weight that the Board placed on DART's allegations contained in the following warnings: (1) the April 15 1993 written warning based upon the claimant's failure to insure that his subordinates worked through their entire shifts; (2) the July 16 1993 memorandum which documents certain "observations" made during the claimant's shift on the prior day; and (3) the October 1 1993 termination letter which sets forth several violations which occurred during the claimant's probationary period. The Board should address each allegation so that a reviewing court is not left to suppose whether the Board has capriciously disregarded competent evidence. See Ridings 407 A.2d at 239 ("capricious disregard for competent evidence" is grounds for overturning a Board decision).

B. DART's Denial of Due Process Claim

Court must address DART's contention that it was denied due process of law because the Board's twenty-minute rule prevented it from presenting all relevant evidence. Due process in an administrative hearing does not require adherence to any particular form of proceeding. Morris v. Unemployment Ins. Appeal Bd. Del. Super. C.A. No. 86A-FE2 Chandler J. 1987 WL 8278 at *2 (Mar. 2 1987) aff'd Del. Supr. Moore J. (July 2 1987) (ORDER); Ridings 407 A.2d at 240 (citing Mitchell v. Delaware Alcoholic Beverage Comm'n Del. Super. 193 A.2d 294 311-12 rev'd on other grounds Del. Supr. 196 A.2d 410 (1963)). Due process is simply the opportunity to be heard in one's own defense. Morris 1987 WL 8278 at *2 (citing Bodie v. Connecticut 401 U.S. 371 377 (1971)). All that is required is that the liberty and property of the citizen be protected by the rudimentary requirements of fair play. Ridings 407 A.2d at 240. In the context of administrative hearings a denial of due process occurs where the exercise of power by an administrative body is arbitrary or capricious. Ridings 407 A.2d at 240.

In the instant case DART asserts that it was precluded from presenting all relevant evidence because the Board strictly adhered to its twenty-minute rule. This rule permits each party appearing before the Board ten minutes to present its case. DART claims that the Board's adherence to its twenty minute rule was arbitrary and capricious in light of the fact that DART did not participate in the hearing before the Appeals Referee. It is also asserted that throughout the hearing the Board badgered and pressured DART by periodically announcing in a seemingly threatening manner the limited amount of time remaining for DART to offer testimony. Additionaily DART asserts that its decision not to introduce into evidence a document dated February 26 1992 was "Board-influenced".

Upon careful consideration of the record in this case Court is convinced that DART's assertion that it was denied due process is without merit. Significantly DART's failure to participate in the hearing before the Appeals Referee was not in any way the fault of the Department of Labor. Moreover DART was not free from fault for its failure to appear at the hearing before the Appeals Referee. This can be determined from the transcript of the hearing before the Board. At the outset of the hearing the Board's Chairman asked why DART had not participated in the hearing before the Appeals Referee. DART's Counsel seemed to indicate that notice was received but that it was somehow misplaced by DART. *fn7 There is no indication in the record that DART's failure to appear before the Appeals Referee was the fault of the Department of Labor. As indicated by the Chairman if DART had appeared before the Appeals Referee it could have had "three or four times" the amount of time allotted by the Board for the presentation of evidence. (Record at 42). Under these circumstances the Board's decision to adhere to its twenty-minute rule was not arbitrary or capricious or otherwise a denial of DART's due process rights.

As to the allegation that during the hearing the Board "badgered and pressured" DART regarding the amount of time remaining the record indicates that the Board advised DART of the amount of time remaining on only two occasions. (Record at 52 58). The Board merely announced when there were two minutes remaining and when there was one minute remaining. Id. These announcements appear to be nothing more than a courtesy to allow DART's Counsel to make the best use of his time. Court is not satisfied that DART was "badgered and pressured" by these two announcements.

Finally DART's failure to introduce the February 26 1992 document into evidence cannot be attributed to arbitrary or capricious conduct on the part of the Board. It appears from the record that DART's Counsel made no attempt to introduce the document into evidence. Recognizing this the Board's Counsel inquired of DART's Counsel I assume that you do not intend to introduce the February 26, 1992 document . . . ? (Record at 60). DART's Counsel responded No I do not, time being what it is. Id. Moreover as discussed previously DART could have introduced this document if it had attended the hearing before the Appeals Referee. Under the circumstances it cannot be said that DART was denied due process of law.

V. CONCLUSION

Based on all of the foregoing the decision of the Unemployment Insurance Appeal Board is affirmed in part and reversed in part. The Board's finding that the claimant's misconduct was not "wilful" is affirmed. The Board's conclusion that claimant was not discharged for just cause under 19 Del. C. Sec. 3315 (2) is reversed. This matter is remanded to the Board for further proceedings not inconsistent with this opinion.

IT IS SO ORDERED.

 
Notes:

*fn1 A preponderance of evidence means such relevant evidence as would enable a court to determine who should prevail. Shipman v. Division of Social Services Del. Fam. 454 A.2d 767 768 (1982).

*fn2 The term "misconduct" refers to conduct which is in violation of the employer's interest the employee's duties or the employee's expected standard of conduct. See Abex 235 A.2d at 272.

*fn3 The Board set forth the employer's burden of proof on four separate occasions within its decision. On each of these occasions the Board recognized that proof of wilful misconduct standing alone is sufficient to satisfy the "just cause" standard of 19 Del. C. SEC. 3315 (2). Therefore Court is satisfied that the Board properly considered whether the claimant's conduct was wilful in nature.

*fn4 The Board discussed the employer's burden of proof on four occasions in its decision. Only once did the Board correctly observe that standing alone proof of either wilful or wanton misconduct satisfies the "just cause" standard. In two instances the Board incorrectly stated the wilful/wanton test in the conjunctive. In another instance the Board incorrectly omitted the wanton element from the test. The Board's repeated misstatements of the governing principle of law lead Court to question whether the Board applied the correct legal standard in reaching its decision. Because the Board's decision also fails to expressly discuss the possibility of wanton misconduct on the part of the claimant Court must conclude that the Board did not apply the correct legal standard in reaching its decision.

*fn5 It is well settled that under Delaware law even a single act of misconduct may constitute "just cause" for dismissal. See. e.g. Unemployment Ins. Appeal Bd. v. Martin Del. Supr. 431 A.2d 1265 1268 (1981); Scott v. Unemployment Ins. Appeal Bd. Del. Super. C.A. No. 91A-03-009 Cooch J. (Sept. 22 1993) slip op. at 10.

*fn6 As stated earlier Court accepts the Board's implicit finding that the claimant's conduct was not willful in nature.

*fn7 DART's Counsel stated that "Somehow it was if there was a crack someplace and it fell through the crack." (Record at 42).