Conseco, Inc. v. Review Board of the Indiana Department of Employment & Training Services

BAKER, Judge,

dissenting.

I respectfully dissent. As noted by the majority, Gilbert’s job as a Data Control Analyst printing customer claim checks with access to company buildings during non-business hours, required Conseco to have a great deal of confidence in her integrity and trustworthiness. Thus, Gilbert’s personal integrity and trustworthiness were fundamental segments of her job, and a breach thereof “adversely affects her ability and capacity to perform her job duties.” Byrd v. Review Board (1984), Ind.App. 469 N.E.2d 463 at 465. The fact that Gilbert shoplifted materially affects Conseco’s ability to trust her and to rely upon her integrity. The fact that Gilbert shoplifted from a store not connected with her employer while off-duty matters not. If a person cannot be trusted all the time, she cannot be trusted any of the time.2

The duty not to commit acts which impair or reflect poorly upon one’s integrity and trustworthiness, while on-duty or off-duty, is a basic duty which every employee reasonably owes to his employer.3 The duty to be honest and trustworthy is so fundamental to every employee’s job because a breach thereof adversely affects the employee’s ability to perform her job duties and the employer’s ability to rely upon that employee to perform those duties honestly.

Gilbert’s shoplifting activity breaches this duty and in my opinion is thus violative of IND.CODE 22-4-15-l(d)(8).4 Moreover, this conclusion is consistent with public policy and the goal underlying the Indiana Employment Security Act, which is to protect workers who become “unemployed *564through no fault of their own.” Gilbert’s discharge was the outcome of her own misconduct.

I believe our decisions in Byrd and Osborn v. Review Board (1978), 178 Ind.App., 381 N.E.2d 495 (employee’s discharge for intoxication while off-duty was for just cause), require reversal of the Review Board’s decision, especially in light of the Review Board’s acknowledgment that it was reasonable for Conseco to limit Gilbert’s access to records or funds. Record at 24.

. See Annotation, "Conduct or Activities of Employees During Off-Duty Hours as Misconduct Barring Unemployment Compensation Benefits," 89 A.L.R.2d 1089 (1963).

. Acts which reflect poorly on one’s integrity and trustworthiness include acts which involve dishonesty or false statement including: treason, murder, rape, arson, burglary, robbery kidnapping, forgery, willful and corrupt perjury, and child molesting. See Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210, 217; Pirnat v. State (1993), Ind.App., 612 N.E.2d 153, 157, n. 6.

.I.C. 22-4-15-l(d)(8) provides that discharge for good cause includes discharge "for any breach of duty in connection with work which is reasonably owed an employer by an employee.”