The Majority Opinion

By Rose, Robert E

Kolnik worked as a cab driver for Yellow from November 14, 1990, to December 28, 1992. He testified that there was "a lot of pressure" to perform well as a cab driver and that he worked ten to eleven hours a day, starting his shifts at approximately 7:00 a.m. On December 28, 1992, a work-related accident resulted in his suspension pending an investigation. Two days later, at a scheduled supervisors meeting, the supervisors voted to discharge Kolnik based on his involvement in two work-related car accidents. After the first accident, Kolnik read and signed a statement which acknowledged that if he was involved in another "chargeable" accident within three years, he could be terminated. Kolnik's second accident occurred a year and a week later[.] In this case, Kolnik is not disputing his termination, merely the denial of his unemployment benefits due to the finding of misconduct. Our dissenting colleague, however, seems to have merged these two issues: misconduct warranting termination and misconduct warranting a denial of unemployment benefits. The only issue contested in the instant case is whether Kolnik's two accidents constituted willful misconduct sufficient to prevent his collection of benefits. Under [the law], a person is ineligible for unemployment benefits if he has engaged in misconduct...[T]he referee concluded that Kolnik's actions showed a disregard for Yellow's best interest by causing damage to its property. However, we conclude that the necessary element of wrong- fulness is lacking and that the mere counting of accidents cannot justify denial of benefits...Nothing in the record implies that Kolnik acted intentionally or recklessly in either of the accidents. With the amount of driving Kolnik was doing as a cab driver, we cannot conclude that Kolnik's second accident demonstrated carelessness or negligence to the extent required to find an element of wrongfulness and therefore misconduct...We conclude that in this case two accidents did not constitute misconduct sufficient to deny employment benefits and that substantial evidence did not support the conclusion reached by the appeals officer. Accordingly, we reverse the district court's order denying benefits.