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

JOSEPH A WILLIAMSON, Employee

WENDYS OLD FASHIONED HAMBURGERS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01602441EC


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 has worked on and off for about ten years for the employer, a fast food business. His last period of employment was for approximately one year in Milwaukee. The employee performed various types of work including register operator and sandwich maker. His last day of work was Friday, December 1, 2000 (week 49). He was discharged by the employer on December 3, 2000 (week 50).

The issued which must be decided in this case is whether the employee's discharge was for misconduct connected with his employment.

The employee was notified on Friday that there was a crew meeting at 8:30 a.m. on Sunday, December 3. When the employee arrived at the workplace, the manager was not there. However, the employer's director of area operations was there. The manager was late because she stopped to pick up donuts for the meeting. The employee came to the restaurant and was upset because the manager was not there. He said something to the effect that he should have stayed home and that the manager should be on time. The employee said that the manager told everybody to be there and she was not. The director told the employee there was no place in the restaurant for that kind of attitude. The employee said he did not have an attitude but he could have stayed home and sold newspapers with his brother. The employee told the director "You can just fuck off." The director then discharged the employee.

The director became upset with the employee's language because high school students work at the restaurant. There were about 15-20 co-workers present during this exchange. While profanity had been common at the employer, in November of 1999, the manager told the workers that they needed to stop swearing.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 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 employee, 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 employee'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' with in the meaning of the statute."

The employee stated that profanity was common at the employer, and that he did not actually swear at the director until the director swore at him. However, when asked for specific details, the employee could not remember exactly what swear words the director might have used. The director credibly denied swearing at the employee first. The employee then indicated that the director swore when he told the employee he was discharged, which is not consistent with his testimony that the director started swearing at him even before the employee began swearing.

In sum, the employee had been displayed an insubordinate attitude and swore at his supervisor in a public area and in front of his co-workers. Further, the employee's comments were disrespectful and confrontational. Under the circumstances the employee's extremely disrespectful behavior demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 50 of 2000, the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for weeks 50 of 2000 through week 19 of 2001, amounting to a total of $2,283.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employee 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 employee 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 employee is ineligible for benefits beginning in week 50 of 2000, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the amount of $2,283.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed July 12, 2001
willijo . urr : 145 : 1  MC 640.05  MC 640.15 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ found that the employee was credible when he said the employer swore at him. She also thought that the employee used foul language but did not believe that language was specifically directed at the director. She further believed that the director was immediately irritated by the employee's behavior. However, the commission found the director's testimony, that he did not swear at the employee, to be credible. Further, for the reasons stated in its decision, the commission did not find the employee's assertion that the director began swearing at him first to be credible.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.


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uploaded 2001/07/16