Assigned on Briefs March 1, 2019
from the Chancery Court for Davidson County No. 17-1158-III
Ellen H. Lyle, Chancellor
an appeal of an employer's Petition for Judicial Review,
which challenged a ruling by the Tennessee Department of
Labor and Workforce Development that the employer's
former employee was entitled to unemployment benefits. The
employer contended the employee was ineligible for benefits
because she was terminated for "misconduct," as
defined in the Tennessee Employment Security Act, for
violating a policy known to the employee by using the
employer's property for a non-business-related purpose.
The Department found that the employee's frequent use of
the employer's internal instant message system to
"chat" with co-workers was an error in judgment or
discretion but did not rise to the level of
"misconduct," which Tenn. Code Ann. §
50-7-303(b)(3) defines as excluding "good faith errors
in judgment or discretion." The chancery court affirmed
the agency's decision. The employer appeals, contending
the "good faith exception" never applies when an
employee is discharged for violating an employer's policy
or rule. The Department counters, insisting the good faith
exception applies regardless of the employer's reason for
termination. Construing the statute according to the natural,
ordinary meaning of the language chosen by the legislature,
we have determined that an employee's violation of an
employer's policy that is due to good faith errors in
judgment or discretion does not constitute
"misconduct" as that term is defined in Tenn. Code
Ann. § 50-7-303. Accordingly, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Charles Stephen Michels, II, and L. Gino Marchetti, Jr.,
Nashville, Tennessee, for the appellant, Tennessee Credit
Jeffrey O. Powell, Hendersonville, Tennessee, for the
appellee, Wanda Powell.
Herbert H. Slatery, III, Attorney General and Reporter, and
Amber L. Seymour, Assistant Attorney General, Nashville,
Tennessee, for the appellee, Tennessee Department of Labor
& Workforce Development, and Wanda Powell.
G. Clement Jr., P.J., M.S., delivered the opinion of the
Court, in which Thomas R. Frierson II and Kenny W. Armstrong,
G. CLEMENT JR., P.J., M.S.
and Procedural History
Powell ("Ms. Powell") worked for the Tennessee
Credit Union ("Employer") as a member services
representative for five years until Employer terminated her
employment on December 12, 2016, along with the employment of
three other employees, for excessive, non-business-related
use of Employer's recently installed instant message
instant message system was installed in July or August 2016
and was to be used by employees to communicate with each
other regarding business matters. Employer had a
long-standing Information System policy ("the
Policy") that "employees should use any information
system for business purposes only."
December 2016, an assistant branch manager noticed that Ms.
Powell was using the instant message system frequently. The
manager retrieved and provided Ms. Powell's messaging
logs to Employer's human resources generalist, who
provided the logs to Employer's Chief Executive Officer.
After reviewing up to six of the approximately 35 pages of
messages, the CEO decided to terminate Ms. Powell and the
other three employees for excessively using the instant
message system for non-business purposes.
January 8, 2017, Ms. Powell filed an application for
unemployment benefits with the Tennessee Department of Labor
and Workforce Development ("the Department"). On
May 4, 2017, the Department issued a Disqualifying Separation
Determination, finding that Ms. Powell did not qualify for
unemployment benefits under Tenn. Code Ann. § 50-7-303.
The Department explained that Ms. Powell's actions
constituted work-related "misconduct" under §
303 because she was discharged for violating Employer's
rule against improper internet usage.
19, 2017, Ms. Powell filed an appeal with the
Department's Appeals Tribunal. Ms. Powell contended that
Employer's stated reason for her discharge was false and
pretext for retaliatory animus. In response, Employer filed,
inter alia, a copy of the Policy, a transcript of
the instant message conversations, and a copy of a previous
reprimand Ms. Powell received for violating the Policy in
October 2015 by using a company computer to browse the
internet. The 2015 reprimand required a review of the Policy
"with special attention to the Procedure and
Restrictions section," which outlined "the proper
usage of the [i]nternet" and warned, "Any further
violation will lead to termination." The Policy provided
that "employees should use any information system for
business purposes only." The Policy's Procedures and
Restrictions section stated that it was "strictly
forbidden to receive, send, publish, transmit, disseminate,
republish, retransmit, store or redisseminate
sexually-oriented messages, information or ...