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

DAVID G  MAXEY, Employee

STEIN GARDEN CENTERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01602002MW


On February 15, 2001, the Department of Workforce Development issued an initial determination which held that the employee's discharge was for misconduct for unemployment insurance purposes. The employee filed a timely request for hearing on the adverse determination, and hearing was held on April 18, 2001 in Milwaukee, Wisconsin before a department administrative law judge. On May 23, 2001, the administrative law judge issued an appeal tribunal decision affirming the initial determination. By June 26, 2001 order, the commission remanded this matter to the department for additional hearing on the issue of the employee's medical condition. That hearing was held on August 15, 2001, and the matter is again before the commission and ready for disposition.

Based upon the applicable law and the record and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:


FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately six years, most recently as an assistant manager, for the employer, a garden business. His last day of work was January 18, 2001, and he was discharged on January 19, 2001 (week 3). The issue is whether the employee's actions, for which he was discharged, constituted misconduct connected with the employment. Based upon evidence adduced at the remand hearing, the commission concludes that the discharge was not for misconduct for unemployment insurance purposes and so reverses the appeal tribunal decision.

Throughout the course of the employment relationship the employee was involved in a number of altercations with co-workers, supervisors, and customers. On several occasions he was told that such behavior would not be tolerated. On or about January 18, 2001, the employee was working with a co-worker to construct a display. The employee became frustrated and extremely angry concerning the progress of the project. On several occasions during the afternoon he yelled at the supervisor with whom he was working. On several occasions his conversation included vulgar and obscene language. At approximately 3:00 p.m. he became so angry that he yelled at the co-worker and, as he walked up some stairs, struck a banister hard enough to inflict an injury on his hand. The co-worker was very upset and was crying. She complained to the employer about this behavior. On January 19, 2001, the employer met with the employee and informed him that his explosive temper would no longer be tolerated and that he was discharged.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The key term in this matter is intentional. Medical records indicate that the employee has hyperthyroidism secondary to Graves' disease. The treatment for the Graves' disease involved radioactive iodine therapy which resulted in the employee's having become hyperthyroid. Hyperthyroidism can result in labile (changeable, unstable) mood and irritableness and a proneness to emotional outbursts. The employee's physician indicated that the employee "could easily have had these symptoms when [his] hyperthyroidism was uncontrolled" (as it was during the time period in question). Given the employee's medical condition, however, his outbursts cannot be deemed intentional, and so cannot constitute misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 3 of 2001, the employee was discharged but not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 3 of 2001, if he is otherwise qualified.

Dated and mailed October 3, 2001
maxeyda . urr : 105 : 9   MC 666.01  MC 640.05  PC 714.10 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal was not based upon a differing credibility assessment from that made by the administrative law judge, as the reversal is based upon evidence not before the administrative law judge when he issued his decision. In addition, the administrative law judge found credible the employee's assertion that his actions were due to his medical condition. That is, the administrative law judge did not believe the employee was "using" his medical condition to justify conduct that the employee could have refrained from in any event. Finally, by this decision the commission in no way justifies the employee's behavior or questions the appropriateness of the employer's discharge of the employee. The commission recognizes that the employer was placed in a difficult position by the employee's outbursts. It remains the case, however, that misconduct for unemployment insurance purposes requires intentional conduct on an employee's part. Such was not present here.


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uploaded 2001/10/09