STATE OF WISCONSIN
BEFORE THE
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

STEPHEN P. MARCOLINI, Employee

Involving the account of

ALMA PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 78-20774 EX


A decision issued by an appeal tribunal of the Department of Industry, Labor and Human Relations held that in week 21 of 1978, the employe was discharged for misconduct connected with his employment within the meaning of section 108.04(5) of the statutes. Accordingly, benefits were denied and an overpayment of $1,096.00 resulted. On August 18, 1978, the employe filed a timely petition for Commission review of the appeal tribunal decision.

Based on the evidence, records and law applicable to this case, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about nine years as a senior high school English teacher for the employer, a public school district. His last day of worked was May 26, 1978 (week 21).

On March 20, 1978 (week 12), the employe was notified that his teaching contract would not be renewed for the 1978-79 school year. As reasons for non-renewal, the employer cited his failure to submit lesson plans, follow the employer's curriculum requirements and fulfill his contractual obligations involving the school play.

During the last year of his employment, the employe had been rather lax in submitting his weekly lesson plans to the employer. In December of 1977, the employer had to request his lesson plans as none had been submitted for approximately ten weeks. Subsequent to that point, his lesson plans were often not submitted on a timely basis. Also, in the 1977-78 school year, he failed to follow the school's English curriculum, having neglected three of the four required areas. He used classroom time for library reading although aware that such was not condoned by the employer.

In the 1976-77 school year, the employe was in charge of the school play in the high school in which he taught. However, no play was produced due at least in part of his own lack of interest. In the 1975-76 school year, three-one act plays were put on, but with little assistance from the employe. As of March 20, 1978, he had expended little if any effort to see that a play would be produced for the 1977- 78 school year.

The Commission is of the opinion that as a professional, the employe neglected his obligations to both the employer and the students. In most cases the Commission would have little difficulty in finding misconduct based on a work record such as his. However, just as the employe owes certain obligations to the employer, the employer also had certain obligations, especially in the context of proving that he was discharged for misconduct connected with his employment. Throughout the 1977-78 school year, the employer was aware of the employe's shortcomings. However, outside of asking him on one occasion for his lesson plans, the employer did nothing to either help him improve or put him on notice that his employment was in jeopardy. This lax position of supervision and discipline also prevailed in both the 1975-76 and 1976-77 school years.

In interpreting the meaning of the term "misconduct" the Commission has consistently held that except for the most serious of offenses, the employer has an obligation to warn a worker that his performance is not satisfactory and give him an opportunity to improve before a finding of misconduct will be made. In the instant case, given the employer's failure in this regard, the Commission is of the opinion that the employe's actions did not evince such a wilful, intentional or substantial disregard of the employer's interests as to constitute misconduct connected with his employment.

The Commission therefore finds that in week 21 of 1978, the employe was discharged, but not for misconduct connected with his employment, within the meaning of section 108.04(5) of the statutes.

DECISION

The decision of the appeal tribunal is reversed. Accordingly, the employe is eligible for benefits, provided he is otherwise qualified. There is no overpayment.

Dated and mailed May 29, 1979
145 - 032   MC 665.04  MC 688.1  MC 699.05 

/s/ Virginia B. Hart, Chairman

/s/ John R. Hayon, Commissioner

/s/ LaVerne G. Ausman, Commissioner

COMMENT:  The material facts of this case are not in dispute. However, the Commission considers that the examiner's emphasis on the alleged warnings received by the employe was in error. At no time did the employe receive a formal warning with notice that his employment was in jeopardy. In the 1977-78 school year the only discussion as to his performance involved the employer's request for his lesson plans. There is no evidence that the employer said any more to him on that occasion than merely making a request for the lesson plans. Such does not necessarily constitute a warning. For prior years, the evidence shows that the employer did talk to him about his work, but there is little if any indication that these talks were considered by either party to be a warning, a violation of which would lead to his discharge. While the employe acknowledged that the employer had expressed dissatisfaction with his use of classroom reading, this took place in February of 1976, over two years before he was notified of his discharge.

The Commission considers that the examiner also erred in failing to take into account the lack of effort on the part of the employer to correct the employe's shortcomings.

 


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