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

KRISTINE L ANDERSON-MORGAN, Employe

S B R INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97005512MD

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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked as a computer draftsperson for the employer, a construction business. Her last day of work was October 24, 1997 (week 43).

The initial issue which must be decided is whether the employe quit or was discharged. If the employe quit, a secondary issue is whether the employe's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employe was discharged, a secondary issue is whether the employe's discharge was for misconduct connected with that employment.

On the employe's last day of work she divulged to the employer's president that she had provided certain information to an investigator from the Department of Agriculture's Trade and Consumer Protection Division. The employer became upset that the employe had divulged this information without first consulting with the president. The employe then left work early and left a note for the employer's president indicating that they needed to cool off and that she would be back at work on Saturday or Monday. The employer later left messages on her answering machine indicating that it no longer wished to have her in its employ.

The employe left work early because the employer was upset with her. She informed the president that she was leaving, and he did not object or indicate in any way that he wanted her to stay at work. There is nothing in the record to suggest that she intended to sever the employment relationship. In fact, she indicated in the note that she thought that leaving the premises temporarily was in the best interests of the employer's president, because she thought that he needed to calm down. It was evidently clear to the president as well, that the employe was not quitting, because he left messages on her answering machine that same day telling her that he no longer wished to employ her. While leaving work without permission, in certain situations might be construed as a quitting, the commission finds that, given the circumstances in this case, the employe did not quit but was discharged by the employer.

The next issue which must be determined is whether the employe's discharge was for misconduct connected with her work. In this case, the employe was questioned by an investigator of the Department of Agriculture. She informed the employer of this because he was her boss and she considered him to be a friend. The employer became angry with her and she left in order to give him a chance to cool off. Also, she believed that the employer had engaged in illegal conduct, and she had a good faith reason to believe that this was occurring. The commission cannot find that the employe's actions amounted to 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 week 43 of 1997, the employe was discharged but the discharge was not for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is modified and, as modified, is affirmed. Accordingly, the employe is eligible for benefits beginning in week 43 of 1997, if she is otherwise qualified.

Dated and mailed: February 3, 1998
anderkr.urr : 145 : 8  VL 1007  MC 610.10

David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission modified the administrative law judge's decision because it reached a different legal conclusion from the facts found by the ALJ. The ALJ and the commission do not find that the employer was engaged in illegal matters, but merely found that the employe believed that such was the case, based on her conversation with the investigator. Because the commission did not find that the employer was engaging in illegal activities, the commission will not remand this case for a new hearing so that this point can be addressed.

The employer asserts that it had a policy prohibiting workers from discussing company matters with outsiders, however, the employe could not be expected to know that this also pertained to state investigators, or to follow such a policy even if she believed it to have such meaning. The employer further asserts that the employe was engaging in illegal conduct while she was working for the employer. However, the employe was not discharged as a result of those things, so the commission could not base a finding that she was discharged for misconduct connected with her employment upon those allegations.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]