Federoff v. Rutledge
In Federoff v. Rutledge, 175 W. Va. 389, 332 S.E.2d 855 (1985), where the Court found that the record was sufficient to support a finding of misconduct but was insufficient to support a conclusion that the employee had been discharged for gross misconduct.
In Federoff, the Court noted that "as is true in many other jurisdictions, the term 'misconduct' is not defined in the unemployment compensation statutes of this State." 175 W. Va. at 392, 332 S.E.2d at 858.
The Federoff Court thereafter recognized this Court's reliance upon the Michigan definition of misconduct in Kirk and again utilized such definition.
The Federoff Court examined the legislative statements regarding gross misconduct and the examples thereof listed in the statute and found that "the legislature, by requiring notice in writing, obviously intended to interject minimal standards of due process into the procedure where acts of ordinary misconduct can trigger full disqualification for unemployment compensation." 175 W. Va. at 395, 332 S.E.2d at 860.
Because the employer in that case chose not to issue a written warning, "under the unambiguous language of the statute, the appellant's discharge did not meet the legislative definition of gross misconduct warranting permanent disqualification from the receipt of unemployment compensation." Id. at 395, 332 S.E.2d at 860.