Not Every Mistake is Disqualifying Misconduct For Unemployment

Matter of Humphreys, ____A.D.3d____(3d Dept. August 3, 2017), illustrates an important principal. Namely, not all forms of misconduct are disqualifying for unemployment purposes. Unfortunately, distinguishing between what is misconduct and what is not is often difficult.
Here, a security guard made the following statement to another security guard:   "if people mess with him, mess with his money, he would cut them." 
In finding that this did not constitute misconduct, the court reasoned:

Whether a claimant's actions rise to the level of disqualifying misconduct is a factual issue for the Board to resolve, and not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct" (Matter of Jensen [Victory State Bank—Commissioner of Labor, 126 AD3d 1207, 1207-1208 [2015] [internal quotation marks and citations omitted]; accord Matter of Muniz [Mitarotonda Servs., Inc.—Commissioner of Labor], 140 AD3d 1426, 1427 [2016]). "Pursuant to our limited review, this Court may not weigh conflicting evidence or substitute its own judgment, and if, as here, the findings turn on the credibility of witnesses, we may not substitute our perceptions for those of the agency" (Matter of Suchocki [St. Joseph's R.C. Church—Commissioner of Labor], 132 AD3d 1222, 1223 [2015] [internal quotation marks and citations omitted]; accord Matter of Kacperska-Nie [DePaula & Clark, Inc.—Commissioner of Labor], 144 AD3d 1303, 1304 [2016]).
Here, the security guard, to whom claimant made the statement regarding cutting people, testified that he felt that the statement was a work-related threat because claimant was always worried about losing his job or having his hours cut. While there was evidence presented that claimant had also previously made disparaging remarks about female coworkers, the employer's security manager testified that claimant's employment was terminated solely because his statement regarding cutting people violated the employer's rules prohibiting workplace harassment and fighting, and not for any other conduct. The Board, however, credited claimant's testimony that the statement he made was not work-related or intended as a threat against any of his coworkers, but instead referred to a personal issue regarding individuals who had recently harassed his family. Inasmuch as the Board is the final arbiter of factual and credibility issues, its determination that claimant's statement, although inappropriate, did not create a hostile work environment and did not rise to the level of disqualifying misconduct is supported by substantial evidence and it will not be disturbed, even though there is evidence in the record that could support a contrary conclusion