MELISSA K KUHNLY, Employee

AMSCO DIVISION, Employer

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:

The employee worked about three years as a fabricator for the employer, a screen manufacturer. Her last day of work was May 2, 2001 (week 18).

The employee worked third shift, from 8:30 p.m. to 5:00 a.m. On her last day of work, a meeting was held with the third shift to notify them that third shift would be cancelled, and all workers from the third shift would be moved to second shift. The employee became upset because the shift differential would not be as high and she would have problems with childcare arrangements. The employee left before the meeting was over and punched out, approximately one-half hour prior to the end of her shift. She told the lead worker that she was too upset to stay. After she was home, she called her supervisor, who would not have been aware of everything that had occurred, apologized for leaving, and discussed production matters. Later that same day the human resource manager called the employee and informed her that walking her shift was considered a voluntary quitting.

The first issue to be decided in this case is whether the employee voluntarily terminated her employment or was discharged by the employer. A secondary issue involves her eligibility for benefits in view of the nature of her separation from work.

Given the circumstances presented in this case, the commission cannot conclude that the employee's leaving work a half hour early on this one occasion demonstrated an intent on her part to sever the employment relationship. The employee gave notice of her leaving to the lead person on the shift. The lead person did not tell her she could not leave, or inform her that if she left she would be considered to have quit. Instead, he sympathized with her situation. The employee would have lost a significant amount of money when she lost the shift differential, and would have to give up a part-time job. The employee also would have had problems arranging for childcare. Therefore her consternation was understandable. When the employee got home she immediately contacted her supervisor to explain what she had done and why. The employee's actions simply did not demonstrate any intention on her part to sever the employment relationship.

The second issue which must be decided is whether the employer's discharge was for misconduct connected with her 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 employee was discharged because she had left work half an hour early on her last day of work. However, the employee was very upset because the employer was transferring her to another shift. It was not demonstrated that she had prior attendance problems or that her job was in jeopardy as a result of her attendance. While the employee may have showed poor judgement when she decided to go home, her actions did not demonstrate such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with her work.

The commission therefore finds that in 18 week of 2001, the employee was discharged, but that the discharge was not for misconduct connected with the employee's work, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is modified to conform to the above and, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 18 of 2001, if otherwise qualified.

Dated and mailed September 28, 2001
kuhnlme . urr : 145 : 3  VL 1007.01 - MC 605  MC 658 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The commission did not modify the ALJ's decision because of any disagreement with the ALJ's findings of fact. In fact, for the most part, the facts in this case were not in dispute. The commission modified the ALJ's decision because it believes that the employee in this case did not demonstrate an intention to end the employment relationship when she left early on her last day of work.

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uploaded 2001/10/02