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

JAMES R WAGNER, Employee

SUPERIOR OF WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01200774EC


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 about two and one-half months for the employer, a trash hauling and recycling business. The last day that he performed work was March 19, 2001 (week 12).

The employee injured his hand on January 22, 2001 (week 4). Following that he was assigned to light duty work. He at times left work for various appointments and did not always notify the employer that he was leaving. The employer spoke to him about leaving without telling anyone, but no formal disciplinary action was taken against him.

On the employee's last day of work the employee did not return to work after his lunch break. When he left, the motor on the baler which he operated was running but the compactor or conveyor was not turned on. The employee called human resource personnel in the corporate office and left a message that he wanted to speak to them. The following morning, the employee was informed that he was discharged.

The issue to be decided is whether the employee's discharge was for misconduct connected with his work.

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 employer discharged the employee for walking off the job on his last day of work as well as on previous occasions, and for leaving the equipment turned on in what was considered an unsafe condition when he left on his last day of work. The employee had no reasonable explanation for leaving work without notice to the employer. The employee was not prevented from giving notice, the employee was in no danger at the workplace, and the employee had previously been informed that it was unacceptable to leave work without notice to the employer. The commission finds that the employee's actions in leaving work without notice, after being told that it was unacceptable, and leaving his machine on, evinced an intentional and substantial disregard of the employee's interests.

The commission therefore finds that in week 12 of 2001, the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $4,964.00 for weeks 14 through 30 of 2001, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 12 of 2001, and until seven weeks elapse since the end of the week of discharge and the employee earns wages in covered employment after the week of discharge equaling at least 14 times the weekly benefit rate that would have been paid had the discharge not occurred. He is required to repay the sum of $4,964.00 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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed August 29, 2001
wagneja . urr : 132 : 8 : MC 658

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did speak to the ALJ regarding witness credibility and demeanor. The ALJ believed that the employer did investigate the employee's prior complaints. Further, the ALJ was not convinced that the employee's leaving without notice was due to fear or mistrust. The commission's decision is based on the fact that the employee did not notify the supervisor that he was leaving, offered no reasonable explanation for failing to do so, and had been notified in the past that such actions were unacceptable. The commission finds that the employee need not be formally disciplined for prior conduct in order to impress upon the employee that leaving work without notice in the middle of the workday and is unacceptable conduct.

cc: Karen K. Duke


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uploaded 2001/09/04