COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bumgardner and Lemons 

NORMAN H. HALE 

 MEMORANDUM OPINION*

v. Record No. 1071-98-3 PER CURIAM 

 NOVEMBER 24, 1998 

SOUTHWEST SANITATION CO., INC. 

AND 

VIRGINIA EMPLOYMENT COMMISSION 

FROM THE CIRCUIT COURT OF TAZEWELL COUNTY 

Donald R. Mullins, Judge 

 (Martin Wegbreit; Client Centered Legal 

Services of Southwest Virginia, Inc., on 

briefs), for appellant. 

 (Mark L. Earley, Attorney General; James W. 

Osborne, Assistant Attorney General, on 

brief), for appellee Virginia Employment 

Commission. 

 No brief for appellee Southwest Sanitation, 

Co., Inc. 

 Norman H. Hale contends that the trial court erred in 

affirming a decision of the Virginia Employment Commission 

("commission"). The commission disqualified him from receiving 

unemployment benefits on the ground that he was discharged from 

his employment for misconduct connected with work under Code 

§ 60.2-618(2). Upon reviewing the record and briefs of the 

parties, we conclude that this appeal is without merit. 

Accordingly, we summarily affirm the circuit court's decision. 

See Rule 5A:27. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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 "Initially, we note that in any judicial proceedings `the 

findings of the commission as to the facts, if supported by 

evidence and in the absence of fraud, shall be conclusive, and 

the jurisdiction of the court shall be confined to questions of 

law.'" Israel v. Virginia Employment Comm'n, 7 Va. App. 169, 

172, 372 S.E.2d 207, 209 (1988) (citation omitted). "In accord 

with our usual standard of review, we `consider the evidence in 

the light most favorable to the finding by the Commission.'" 

Wells Fargo Alarm Services, Inc. v. Virginia Employment Comm'n, 

24 Va. App. 377, 383, 482 S.E.2d 841, 844 (1997) (citation 

omitted). 

 So viewed, the evidence proved that Hale worked as a truck 

driver for Southwest Sanitation, Co., Inc., from March 1, 1992 

through June 15, 1993. He collected garbage for Southwest's 

residential and commercial customers, and his job duties included 

emptying garbage cans into his dump truck. 

 After receiving complaints from customers about unbagged 

trash being left in garbage cans, Southwest's owner, Arnold 

Booth, instructed Hale to completely empty the cans, bagging any 

loose trash if necessary. Booth told Hale that Southwest would 

provide him with bags if he did not want to dump loose trash into 

his truck. When Hale refused to empty customers' loose garbage 

into his truck, or to bag that loose trash, Booth discharged him. 

 Booth testified that customers are requested to bag all 

garbage, although they do not always do so. Most customers bag 
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all their trash. Southwest will not provide service for 

customers throwing out hazardous waste. 

 Hale was fined by the courts several times for allowing 

litter to escape from his truck, and he was on probation at the 

time of his discharge. Hale testified that he did not want to 

collect loose trash because it had a tendency to blow out of the 

truck, and he did not want to violate his probation. He objected 

to bagging customers' loose garbage because he felt that it was 

unsanitary. Southwest equipped Hale's truck with a tarpaulin to 

cover the back of the truck to prevent garbage from escaping. 

 Code § 60.2-618(2) provides that a claimant will be 

disqualified from receiving unemployment benefits if he is 

discharged from employment for misconduct connected with work. 

 [A]n employee is guilty of "misconduct 

connected with his work" when he deliberately

violates a company rule reasonably designed 

to protect the legitimate business interests 

of his employer, or when his acts or 

omissions are of such a nature or so 

recurrent as to manifest a willful disregard 

of those interests and the duties and 

obligations he owes his employer. 

Branch v. Virginia Employment Comm'n, 219 Va. 609, 611, 249 

S.E.2d 180, 182 (1978). "Whether an employee's behavior 

constitutes misconduct, however, is a mixed question of law and 

fact reviewable by this court on appeal." Israel, 7 Va. App. at 

172, 372 S.E.2d at 209. Insubordination, that is, a deliberate 

refusal to comply with a supervisor's instructions, can 

constitute misconduct connected with work. See Wood v. Virginia 
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Employment Comm'n, 20 Va. App. 514, 518-19, 458 S.E.2d 319, 321 

(1995). 

 Hale's outright refusal to follow Booth's instructions to 

completely empty customers' cans, bagging loose trash if 

necessary, demonstrated a deliberate disregard for Southwest's 

business interests. This conclusion is underscored by evidence 

of the recent complaints Southwest received from its customers. 

Credible evidence supports the commission's finding that Hale's 

actions constituted insubordination and a prima facie case of 

misconduct connected with work. 

 "Once the employer has borne the burden of showing 

misconduct connected with the work, . . . the burden shifts to 

the employee to prove circumstances in mitigation of his or her 

conduct." Virginia Employment Comm'n v. Gantt, 7 Va. App. 631, 

635, 376 S.E.2d 808, 811, aff'd on reh'g en banc, 9 Va. App. 225, 

385 S.E.2d 247 (1989). 

 Evidence of mitigation may appear in many 

forms which, singly or in combination, to 

some degree explain or justify the employee's 

conduct. Various factors to be considered 

may include: the importance of the business 

interest at risk; the nature and purpose of 

the rule; prior enforcement of the rule; good 

cause to justify the violation; and 

consistency with other rules. 

Id.

 We cannot say that the commission erred in finding that Hale 

failed to meet his burden of proving mitigating circumstances. 

Garbage pick up, by its very nature, can be unsanitary, and Hale 
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could have worn gloves or other protective clothing when 

necessary. Hale also failed to prove that his employer's 

instructions were unreasonable, or unduly jeopardized his health 

or safety. Accordingly, the commission did not err in 

disqualifying Hale from receiving unemployment benefits.1

 Affirmed. 

 

 1Hale asserts in his brief that this case should have been 

decided as a work refusal under Code § 60.2-618(3). He did not, 

however, present this argument either to the commission or the 

trial court. Accordingly, we will not address it for the first 

time on appeal. See Rule 5A:18. Moreover, Code § 60.2-618(3) 

only applies in situations where an individual refuses an offer 

of work once he is unemployed. It is inapplicable to separations 

from employment.