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

MARGE A OSTROWSKI, Employee

ROYALTON MANOR, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01201213EC


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 about 23 years as a cook for the employer, a nursing home. Her last day of work was July 7, 2001 (week 27), when she was discharged.

The issue to be decided is whether the employee's discharge was for misconduct connected with her employment.

The employer required workers to record work hours on a time card by using a time clock. The policy provided that workers were not to clock in earlier than six minutes before the start of the shift and to clock out no later than six minutes after the end of the shift. Workers were permitted two paid 15-minute breaks and one unpaid 30-minute lunch break. The employer's policies required that a worker who left the premises for personal reasons during the scheduled shift to clock out upon leaving and to clock in upon returning. Another policy provided that leaving the premises without approval of the supervisor, falsification of a time card, or dishonesty would result in discharge. The employee received a copy of the employer's policies in February of 1999.

On July 7, 2001, the employee reported to work at 3:35 a.m. to ensure that a person making a bread delivery would have access to the building. The employee started her shift at 4 a.m. At about 5:10 a.m. she left the premises to get her personal mail. The employee told a co-worker that she was leaving.

The employer discharged the employee when she returned from her errand. She was told she was discharged for violation of the employer's policy. The employee believed that she or the cook were in charge on weekends because nobody else was there. The employee also believed that she had been told that if nobody else was around, the workers had to ask the employee or one of two other co-workers if they could leave the building.

The employee contended that her actions did not amount to misconduct because she did not realize that she could not leave for a brief personal errand. The commission agrees. The employee had worked for the employer for 23 years, and had not had previous warnings of this nature before. In fact the employer indicated she was discharged solely because of this incident. The employee was under the impression that workers could leave the premises for brief periods of time and in fact had given workers permission to do so. While the employer may have had valid concerns that the employee was stealing time, in this instance the employee could legitimately have believed that she was not stealing time because she had come in early and worked without punching in to ensure that bread delivery could be made. The employee's actions may have demonstrated poor judgment, however, the commission does not, in view of her 23 years employment with the employer, and lack of prior warnings, find that the employee's actions amounted to misconduct. While the employer may have made a valid business decision when it decided to discharge her, the employee's actions amounted to an isolated instance of poor judgment and did not rise to the level of misconduct connected with her work.

The commission therefore finds that in week 27 of 2001 the employee was discharged but that her discharge was not for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits as of week 27 of 2001, if otherwise qualified.

Dated and mailed December 21, 2001
ostroma . urr : 145 : 8  MC 605.07 MC 697 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ found it difficult to reach a credibility determination in this case. The ALJ stated that she did not know if the employee was aware that the employer would not allow her to take an unscheduled break. The ALJ also did not know if the employee was aware she would be disciplined or discharged as a result of her taking this break. The commission also found this case difficult to resolve. However, the commission credited the employee's testimony that she was simply unaware that the employer considered her actions improper. Further, the employee's testimony that she came in early, as a volunteer, and as such, did not actually steal time from the employer by taking a break without punching out, was not disputed.

cc: Attorney Ralph E. Binger


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