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

DAVID A COHEN, Employee

SODEXHO MANAGEMENT CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01601737MW


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 almost two years as a server/baker for a restaurant. His last day of work was January 17, 2001 (week 3). He was discharged the following day.

Prior to November 17, 2000, the employee hugged a female client that regularly ate at the restaurant He received a written warning that such conduct was unacceptable and informing him that he had to improve or he would be transferred. On November 29, 2000, the employee was overheard by his supervisor making a sexual remark to a co-worker in the kitchen. The co-worker did not complain but the supervisor objected and the employee was warned that similar conduct could result in discharge. He was counseled about the need to remain professional and told that similar behavior would result in his discharge. The employee acknowledged that he knew he was "on thin ice."

On January 17, 2001, the supervisor received another complaint from a customer that the employee had been inappropriate. He had made a remark about the woman's size, instructed her to turn around so that he could view her from the back, and asked her if she was married. The employee denied being crude when making these remarks and explained that he was conducting a sort of informal dating service for customers of the restaurant. The employee recognized the customer as a regular but they had no personal relationship. The employee was sent home to await a decision from the corporate office about whether discharge was appropriate. He was discharged the following day.

The issue is whether the employee's discharge was for misconduct connected with his employment.

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 willful 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 worked in an office setting. The restaurant was in a professional building. While a certain amount of casual banter with regular customers might be expected, the issue is whether the employee strayed over what was acceptable and whether the employer had placed him on adequate notice what its expectations were. These three incidents occurred in a six week period. The employee had been told twice before that his conduct was considered unprofessional and that if it continued it would adversely affect his employment, either by causing his transfer or discharge. The employee nevertheless failed to conform his behavior to the employer's reasonable expectations and engaged in misconduct by again making inappropriate remarks to a customer.

The commission therefore finds that in week 3 of 2001, the employee was discharged for misconduct connected with the work for the employer, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits amounting to a total of $ 2,799; for which he was not eligible and to which he was not entitled, with in the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

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 appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 3 of 2001, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay benefits in the amount of $2,799 to the Unemployment Reserve Fund. The initial Benefit Computation (form UCB-700), issued on January 18, 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 August 31, 2001
cohenda : 178 : 1 MC 610.25

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission consulted with the ALJ prior to reversing. The ALJ had doubts that the employee was clearly on notice that his job was in jeopardy. The commission has considered this point, but concludes as stated above that the employee was on reasonable notice that his conduct placed his further employment in jeopardy. He nevertheless persisted in unprofessional conduct after that time.

The commission notes that Sodexho Management Corp # 021172 is the predecessor to SDH Services East LLC # 238738. Consequently a copy of this decision will also be sent to the successor employer.

cc: 
The Loyalty Building
Continental Consultants SDH Services East LLC


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uploaded 2001/09/05