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

RASHADD D MILLER, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00609095MW


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 three years as a maintenance worker for the employer, a public school system. His last day of work was September 13, 2000 (week 38), when he was discharged.

In August of 1999 the employee's employment was suspended for three days due in part to an absence without notice to the employer that occurred earlier in the year. The employee was absent without notice on March 13 and March 14, 2000, because of his arrest for marijuana possession. Unavailability for work because of incarceration is prohibited conduct that may result in discipline under the employer's work rules. The employee was also absent without approved leave on March 24, 2000, because he failed to submit required documentation of his court appearance. He had informed the employer that morning that he had a court appearance. However, the hearing was at 1:30 p.m. and the employee did not appear for any part of his shift that ran from 3:30 p.m. to midnight. In July of 2000 the employee was found guilty of marijuana possession. The employer initiated disciplinary proceedings in August of 2000. The employee was issued an incident report on September 5, 2000, for leaving the school without authorization and extending his lunchtime by over one hour. The aforementioned incidents were considered in the disciplinary hearing and resulted in the employee's discharge on September 13, 2000.

The issue to be decided is whether the employee was discharged 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 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 had been disciplined in 1999 for his absence without notice to the employer. The employee's failure to obey the law resulted in his March 2000 absences from work. It was foreseeable that illegal conduct such as that engaged in by the employee might result in incarceration. The employee was absent for invalid reasons and without notice to the employer. The employer has a right to expect notice of absence and that an employee will appear for work as scheduled unless the employee has a valid reason for absence. The employee's absences and lack of notice demonstrated an intentional and substantial disregard of the employer's interests and of the employee's duties and obligations to the employer.

The commission therefore finds that in week 38 of 2000 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 $5,616.00 for weeks 39 through 53 of 2000 and weeks 1 through 11 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. Wis. Stat. § 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 38 of 2000, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $5,616.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on September 18, 2000, is set aside. If benefits become payable based on work performed in other covered 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 otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed September 14, 2001
millera . urr : 132 : 1 :   MC 605.091

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did consult with the administrative law judge regarding witness credibility and demeanor. The commission does not reverse the appeal tribunal decision based on credibility but based on reaching a different legal conclusion when applying the law to the facts. The employee's discharge occurred 6 months after the absences at issue. However, the employer was merely presuming that the employee was innocent until proven guilty and did not unduly delay, after the determination of guilt, in instituting disciplinary proceedings.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another 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 overpayment.

 


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uploaded 2001/09/17