Kirk v. Cole
In Kirk v. Cole, 169 W. Va. 520, 288 S.E.2d 547 (1982), the Court held that absence from work due to illness did not constitute misconduct and that an employee was not totally disqualified from receiving benefits subsequent to her discharge for excessive absenteeism due to illness.
In discussing the statutory guidance regarding unemployment compensation, the Kirk Court adopted a definition of misconduct, explaining as follows:
This Court has not previously had occasion to consider the meaning of the term "misconduct" as it is used in the unemployment compensation statute. However, in jurisdictions that have been faced with the question a general definition of misconduct has evolved. As stated in Carter v. Michigan Employment Security Commission, 364 Mich. 538, 111 N.W.2d 817 (1961), misconduct is:
conduct evincing such willful and wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute.
(169 W. Va. at 524, 288 S.E.2d at 549.)