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

MELISSA M WALLOW, Employee

TCF BANK, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01601151MW


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, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for two and a half years for a bank, most recently as an assistant manager. Her last day of work was January 11, 2001. (week 2)

The employee was discharged for sending sexually suggestive faxes to another bank employee at a different branch. She did this in response to a similar fax from the same worker. The fax was discovered by a bank worker who reported it to the employer. The employee was discharged for misconduct and unprofessional behavior.

The employee had previously received a warning for unprofessional conduct when she was overheard swearing on the phone. Immediately prior to the final incident, the employee had received her employment review which highlighted professional conduct as her weakest area and warned her to be professional at all times while at the bank.

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."

In response to the employer's charges, the employee argued that the fax was a private communication and no one had ever told her that the fax could not be used for private purposes. The commission disagrees. Sending sexually explicit material on the employer's business equipment is misconduct and one does not need an explicit rule or a warning. Moreover, given that the employee was an assistant manager who had been previously disciplined for unprofessional conduct, the employer could reasonably expect the employee to refrain from such activities.

Finally, although she insisted that this was a private communication and should not have been seen by anyone other than the intended recipient, she also knew it should be concealed since she called the worker prior to sending the first fax to alert him that it was on its way.

The commission therefore finds that in week 2 of 2001, the employee was discharged for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $3,370 for weeks 3 through 13 of 2001; for which she was not eligible and to which she was not entitled, with in the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 2 of 2001, 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 $3,370 to the Unemployment Reserve Fund. The initial Benefit Computation (form UCB-700), issued on January 11, 2001 is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed July 27, 2001
wallome . urr : 178 : 3  MC 666.01  MC 687 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner



MEMORANDUM OPINION

The commission consulted with the ALJ prior to reversing. Since the facts are not in dispute, the commission does not reach any differing assessment of witness credibility. Instead, the commission concludes that the employee was on notice about the need for professionalism and her conduct went beyond merely a good faith error in judgment.

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.

cc: 
TCF Bank - Milwaukee


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2001/07/30