BEFORE T

HE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

JOHN A. TOMICH, Employee

WAL MART STORES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 92603834MW


On March 31, 1992, the Department of Industry, Labor and Human Relations (the Department) issued an Initial Determination which found that the employe was discharged, but not for misconduct. The employer filed a timely request for hearing and a hearing was held before an Appeal Tribunal on June 18, 1992. The presiding Appeal Tribunal reversed the Initial Determination and found that the employe quit, but not for a reason constituting an exception to the quit disqualification provision under see. 108.04 (7)(a), Stats. AS a result, benefits were denied. The employe filed a timely petition for Commission review under sec. 108.09 (6)(a), Stats.

Based on the applicable law, records and evidence in this ease, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked as a stocker in the freezer/cooler section of the employer's "wholesale club" store. The first issue in this ease is whether the employe quit or was discharged. If the employe was discharged, the next issue is whether he was discharged for misconduct connected with his employment under sec. 108.04 (5), Stats. If the employe instead quit; the next issue is whether he is eligible for benefits despite quitting. Generally, employes who quit are ineligible for benefits until they requalify under sec. 108.04 (7)(a), Stats.

The employe began working for the employer's predecessor on September 13, 1990. His last day of work was March 17, 1992 (week 12). His separation on that date grew out of his failure to comply with the employer's policy requiring its workers to wear hairstyles that are conservative, neatly arranged, clean, and for men, no longer than collar length. However, the policy was not in effect at the time the employe was hired and apparently did not actually go into effect until the named employer took over business from the predecessor in February of 1991. According to the employe even after the employer, took over the business, his hair length was not immediately mentioned. Indeed, the employer's general manager testified that a handbook workers were given when the named employer took over the wholesale club did not go into exact details about hair length, but that the employe and several other workers later were given a copy of a "policy" which contained more detail.

When the hair length issue was first raised, the employe was told he could wear his hair under a baseball cap as long as it did not come below his collar. However, the employer's witness testified that his hair was hanging down during store hours, in violation of the employer's policy. On March 13, 1992, the employer issued a document stating that the employe had been advised to keep his hair short or neatly tucked under his cap and had failed to comply, so he was being sent home to decide "whether or not the length of his hair was as important as his job." Although the employer's witness never admitted that the employe was told he must cut his hair (as opposed to wearing it under a hat), the tone of the March 13 document indicates that's what the employer expected. Further, the employe specifically testified that he was told on March 1-; that he could either cut his hair or leave, although he denied being sent home to "make a decision."

The employer's witness testified that the employe decided that he no longer wished to work for the employer. However, an "associate exit interview" document (Exhibit 4) indicates that the employe was involuntarily terminated because of his hair length on March 17. The employe testified that he was fired.

The Commission appreciates that the statutory concept of a "voluntary termination" is not limited to the worker who says "I quit." For unemployment compensation purposes, a quit can include a situation in which an employer actually discharges a worker. Nottelson v. ILHR Dept., 94 Wis. 2d 106, 119, (1980). Indeed, the Department, the Commission and the courts have consistently held that a quit occurs "when an employe shows that he intends to leave his employment and indicates such intent by word or manner of action, or by conduct inconsistent with the continuation of the employe--employer relationship." Dentici v. Industrial Comm ., 264 Wis. 2d 181, 186 (1953); Nottelson, at 94 Wis. 2d 119.

One could argue that the employe showed his intention to quit by refusing to get his hair cut. However, that overlooks the fact that the requirement that the employe have his hair neatly groomed came from the employer in the first place. It was the employer who unilaterally imposed the grooming policy upon assuming the operation of the wholesale club store and it was the employer who began the disciplinary proceedings which eventually led to the document purporting to discharge the employe involuntarily. The employe was not refusing to work, or as in Dentici , refusing transfer to different work. Indeed, the record indicates that he would have continued to work under the same circumstances under which he had been hired had he been allowed to do so.

Although the Commission appreciates that an argument could be made that the employe here quit his job, it must conclude that; the employer was in fact the moving party in the separation and that this was therefore a discharge. The Commission also notes that in the single recorded case dealing with a separation because of a worker's failure to comply with a grooming standard, Consolidated Const. Co. v. Casey, 71 Wis. 2d 811, 820 (1976), the Supreme Court in effect affirmed a Commission decision which found a discharge in a situation similar to the one here.

The next issue is whether the employe was discharged for misconduct. The Supreme Court has defined misconduct as an intentional and substantial disregard of an employer's interests or of the standards of conduct that an employer has the right to expect from its employes. Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259 (1941); Wehr Steel Co. v. ILHR Dept ., 106 Wis. 2d 111, 116 (1982). However, when a worker violates a valid work rule causing an employer to discharge him or her, that does not necessarily amount to statutory misconduct for unemployment compensation purposes. Casey, 71 Wis. 2d at 819-20. Indeed, the Supreme Court has held that when considering a breach of company work rules, the reasonableness of the rule must be assessed in light of the purpose of unemployment compensation rather than solely in terms of efficient industrial relations. Milwaukee Transformer Co. v. Industrial Comm., 24 Wis. 2d 502, 512 (1964 ) . The Court went on to state that the "reasonableness" of the rule from the point of view of labor management; relations is less of a concern than the unreasonableness of the conduct of a worker in breach of the rule. The critical question is whether the worker acted in an intentional and unreasonable interference with the employer's interests. Id.

In this case, the Commission notes that when the employe was hired by the employer's predecessor, the named employer's grooming policy was not explained to him or even yet in effect. The fact that the rule was not explained is not merely a minor detail: state law specifically states that each employer must, at the time of hiring, notify employes about any hair style, facial hair or clothing requirement. Section 103.14, Stats. Although the law does not provide a penalty for failing to provide that information to a worker, it does express a legislative preference that employes be aware of grooming requirements going into an employment relationship. While employers have legitimate interests in grooming requirements, the Commission cannot conclude that this employe's failure to comply with the new or changed grooming requirement was misconduct as defined above.

The Commission therefore finds that in week 12 of 1992 the employe did not quit but was instead discharged. The Commission further finds that in week 12 of 1992 the employe was discharged, but that the discharge was not for misconduct connected with his work, within the meaning of sec. 108.04 (5), Stats.

DECISION

The Appeal Tribunal Decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 12 of 1992, if he is otherwise qualified.

Dated and mailed March 17, 1993
101 : CD4024   MC 698

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


MEMORANDUM OPINION

The Commission did not confer with the Appeal Tribunal because it did not reverse on the basis of witness credibility or demeanor. Transamerica Ins. Co. v. ILHR Dept ., 54 Wis. 2d 272, 283-84. It is true that the Appeal Tribunal found that the employe read the employer's policy "when (he) began working for the employer." However, the employe began to work for the employer when it bought the wholesale club that had originally hired the employe several months earlier. Further, the employer's general manager testified that the handbook the employes were required to read when the employer took over did not go into detail on the hair length policy. Rather, a copy of the policy was distributed separately to the employe and three co-workers sometime after the handbook was distributed and before "corrective action" was taken.

Otherwise the Commission reached a different legal conclusion upon essentially the same set of facts as found by the Appeal Tribunal. Specifically, the Appeal Tribunal found that the employe quit his job with the employer by his failure to comply with the employer's grooming policy. However, the Commission respectfully disagrees for the reasons set out above.

 


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


uploaded 2002/02/20