STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


CHRISTOPHER M ANDERSON, Employee

D & D INDUSTRIAL COATINGS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00604907RC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a business that does industrial painting, for eighteen years as a maintenance laborer. His last day of work was April 25, 2000 (week 18).

The employee did not have regular work hours, although he basically worked an eight-hour shift. The employee had a key to the employer's plant and would work evenings and weekends. He was not required to request vacation time in advance, but could take the time off and be credited for it after the fact.

On Tuesday, April 25, 2000, the employee left work early in order to attend to personal matters related to a pending divorce. The employee notified his supervisor, the plant manager, that he was leaving and was told, "Do what you gotta do." The employee did not report for work for the rest of the week. He called the personnel office a few times during his absence to report that he would not be in, but would return to work on Monday.

When the employee returned to work on Monday, May 1, 2000, the owner of the company told him he no longer had a job. The employee asked why he was being let go, to which the owner responded that the matter was "out of his hands." At the hearing the employee speculated that he was discharged because business was slowing down at that time. The employer did not appear at the hearing, and no evidence was presented on its behalf.

The issue to be decided is whether the employe's discharge was due to misconduct connected with his employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

". . . the intended meaning of the term `misconduct' . . . is limited to conduct evincing such wilful or 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 employe, 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 employe'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."

In the absence of any evidence in the record as to why the employee was discharged, there is no basis to conclude that his discharge was for misconduct. Moreover, even if the commission were to conclude, as the administrative law judge did, that the employee was discharged because of his attendance, it would not find misconduct where the employee testified he gave notice he would be off of work until Monday and was not denied permission to do so.

The commission, therefore, finds that in week 19 of 2000, the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 19 of 2000, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed November 15, 2000
anderch.urr : 164 : 1  MC 600  MC 605.07

David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge about credibility. The commission's reversal does not depend upon an assessment of witness credibility, but is as a matter of law.

cc: ATTORNEY GERALD J MAYHEW
TREBON & MAYHEW


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