STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
CONTESSA L ALLISON, Employee
CHILDRENS WORLD LEARNING CENTER, Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00605752MW
An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The employee worked for the employer, a daycare center, for about two and a half months as a daycare teacher. Her last day of work was June 8, 2000 (week 24).
The employer's policy contains a list of "fourth group" offenses which will result in immediate discharge. Among those offenses is, "Administering physical punishment or abuse of any kind to a child. This includes any type of punishment prohibited by licensing standards, and may include slapping, spanking, withholding food or bathroom privileges, inappropriately restraining a child." The Wisconsin Department of Health and Family Services has promulgated rules pertaining to daycare centers which specifically prohibit actions which are humiliating or frightening to a child, including "binding or tying to restrict movement or enclosing in a confined space such as a closet, locked room, box or similar cubicle." Wis. Admin. Code § HFS 46.07(2)(3)3.
The employee was responsible for a group of eight toddlers. On June 8, 2000, her last day of work, the employee missed her lunch break and decided to take a break at about 2:30 in the afternoon. All the children in the room were napping but one, and the other teacher assigned to the room was unwilling to deal with him. The employee attempted to rock the child to sleep, but was unsuccessful. She then decided to sit him at a table and go take her break. The employee put the child in a chair between a crescent-shaped table and the wall, so that he was "locked" to the wall and could not go anywhere. However, when the employee started to walk out the door for her break, she looked back and saw the child climbing up on the table. The employee then decided to tie him into the chair with a sheet. She stated that she did so so that he would not get up on the table and "bust his head." Having thus restrained the boy, the employee went on break for an hour.
When the employee returned to the room after her hour-long break the child was asleep at the table, and the employee left him there. At some point the boy woke up and was served a snack, but was not released from the chair. The employee testified that she left the boy restrained for safety reasons, because she was getting ready to tube feed another child. At this point another worker came into the room and removed the sheet. The employee was discharged that day.
The issue to be decided is whether the employe's discharge was due to misconduct connected with her 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."
The employee was discharged for restraining a toddler in a chair for at least an hour and a half by tying a sheet around his waist. The administrative law judge found this not to be misconduct, concluding that the employee did not intend to punish or harm the child, but wanted to make sure he did not bang his head against the table. The administrative law judge noted that, at most, the employee's actions showed a lack of knowledge. The commission disagrees with this analysis and finds misconduct. That the employer's rules specifically prohibit restraining a child as a means of punishment does not make it acceptable to restrain a child for other reasons, and the fact that the employee's motives were not punitive does not excuse her conduct. Even assuming that there could be some legitimate circumstance justifying the use of restraints on a child, such circumstances were clearly not present in this case. The employee restrained the child because she wanted to take a break and, therefore, sought a way in which she could leave him unattended. Any safety issue presented was a direct result of the employee's own decision to go on break rather than attend to the child herself or ensure that someone else did. Regarding the appeal tribunal's conclusion that the employee's actions exhibited a lack of knowledge, the commission believes that it should have been obvious to the employee that it was unacceptable to restrain a child. However, even concluding that the employee did not act in deliberate disregard for the employer's interests, her actions were nonetheless so grossly negligent as to rise to the level of misconduct.
The commission, therefore, finds that in week 24 of 2000, the employe was discharged for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).
The commission further finds that the employe was paid benefits in weeks 25 through 35 of 2000 in the total amount of $1,001, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she is required to repay such sum to the Unemployment Reserve Fund.
The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.
DECISION
The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 24 of 2000 and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $1001 to the Unemployment Reserve Fund.
Dated and mailed January 26, 2001
allisco.urr : 164 : 1 MC 610.25 MC 689 MC 699
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. However, the commission's reversal of the appeal tribunal decision is not the result of any different assessment of witness credibility, but is as a matter of law.
cc: CAROL WEIDINGER
C/O R E HARRINGTON
CHILDRENS WORLD LEARNING CENTER
CATHY HARVEY
UC HEARING REPRESENTATIVE
C/O R E HARRINGTON
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uploaded 2001/01/29