dissenting.
Because I do not agree with the Court’s conclusion that the Industrial Commission’s finding of employee misconduct was supported by substantial and competent evidence, I respectfully dissent.
The Court upheld the Commission’s denial of unemployment benefits due to employee misconduct based on a finding that Steen’s conduct was in violation of Denny’s rules. The Commission found Denny’s had a written policy on proper cash handling which included allowing only one specified individual to handle the till on any shift. Steen was discharged after receiving three violations related to the till policy. However, finding Denny’s had a reasonable rule violated by Steen does not end our inquiry regarding whether the violation of that rule renders Steen ineligible for unemployment benefits. It is well established that “violation of an employer’s rules is not, per se, misconduct; rather, a deliberate and intentional violation of the spirit of the rule is required.” Simmons v. Dept. of Employment, 99 Idaho 290, 292, 581 P.2d 336, 338 (1978)(citmg Wroble v. Bonners Ferry Ranger Station, 97 Idaho 900, 556 P.2d 859 (1976)(emphasis added)). “The ‘deliberate disregard of an employer’s rule’ theory requires a finding that the employee acted deliberately, violating a known rule .” Wulff v. Sun Valley Co., 127 Idaho 71, 75, 896 P.2d 979, 983 (1995). The Court and the Commission overlook the intent requirement. The Commission specifically found Denny’s till policy “was not carefully followed” and “servers were not involved in verifying the accuracy of the till at the start *239or end of their shifts.” In addition, Denny’s did not indicate in Steen’s disciplinary report that it wished to start enforcing the till policy of allowing only one person on the register, but instead issued to Steen two written violations, on the same day, stating “$15.04 shortage” and “Cash shortage of $20.00 on 2/5/99,” and warning her that “will not happen again, next instance will be termination.” Even though the till policy had not been carefully followed, the Commission’s Decision and Order summarily concluded the intent requirement was met by simply stating: “Claimant’s actions were deliberate. She intentionally handled the till when she was not authorized to do so. She intentionally put at least one customer’s payment in her apron pocket.” The finding that Steen’s actions were deliberate, in the sense that she callously rejected a known and enforced rule of the employer, is not supported by substantial and competent evidence.
Denial of unemployment benefits is limited to intentional violations an employer’s rule because the very purpose of unemployment insurance is to “set aside unemployment reserves to be used for workers who are unemployed through no fault of their own.” I.C. § 72-1302. Alternatively, a finding of “misconduct” allows denial of benefits to those who bring about their own unemployment by conducting themselves with callousness, deliberate or wanton misbehavior. Denying benefits for misconduct where the employee violates a rule not previously enforced by the employer has no deterrent power, allows for no pondering of the consequences of their actions, and is not a deliberate disregard of the employer’s rules. Our precedent makes clear that Denny’s can begin to enforce the previously overlooked till policy and Denny’s clearly has a right to discharge an employee for the violation of their rules. Folks v. Moscow Sch. Dist. No. 281, 129 Idaho 833, 838, 933 P.2d 642, 647 (1997). However, Denny’s acquiescence to numerous staff being allowed in the till negates the ability of Steen to form a “deliberate intention” to violate a rule not previously enforced.
The third violation may present a harder question of whether she deliberately violated the till policy. However, the Commission made no specific findings regarding her intent and based their findings solely on Denny’s showing that Steen violated rules designed to prevent cash shortages.
The Commission has simply found that Steen violated Denny’s written, but unenforced, rule. Without a deliberate intention to violate the rule, it is not misconduct, and in my view there cannot be deliberateness where a rule was not previously enforced. Therefore, I would find the Commission’s determination that Ms. Steen was discharged for employee misconduct is not supported by substantial and competent evidence. I would reverse the Commission’s findings and approve unemployment benefits for Ms. Steen.
Justice KIDWELL concurs in dissent.