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

CINDY M ROBERS, Employee

SPECIALTY CARE SERVICES LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01609754MW


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 approximately 13 months as a supervisor for the employer, a community-based residential facility. The employee's last day of work was July 18, 2001 (week 29), when she was discharged.

The employer discharged the employee for several reasons including the use of profanity in front of residents, allowing the floors to remain unstaffed for almost an hour, receiving personal phone calls on company time, and "for being investigated for being party for misappropriation of residents funds."

The employee used the term "bitch" in the presence of a co-worker. No residents or family members were present. This was an isolated incident for which the employee received no prior warnings. The employee was also warned about receiving excessive phone calls in June of 2001. The employee was able to address this employer concern by using her break time for personal use of the phone.

On July 16, 2001, the employee ended her shift at approximately 11:15 p.m. The employee left the facility without punching out and waited in front of the facility with another supervisor and a co-worker. All three workers were waiting outside the facility for another third shift worker to appear for work and in doing so, left the floors unstaffed. While waiting, the employee instructed her co-worker, who was scheduled to work the third shift, to return to the floors, but the co-worker did not. Shortly after midnight, when it became apparent that the other third shift worker was not coming, the employee returned to the facility and worked a double shift, even though it was not her intent to work a double shift. While waiting for the third shift worker to appear, the employee had forgotten to punch out at the end of her shift and punch back in when she began working her double shift.

The employee was also discharged for her involvement with a resident's missing funds. The employee, the employee's daughter and a resident were in the resident's room when the resident asked the employee to count some of the resident's money. The resident was afraid to turn over her money to the employer for fear she would never get it back. The employee testified that after she counted the money with the resident, the employee left the room. The employee's daughter was still in the room with the resident when the employee left. The employee testified she did not take the money from the resident. Sometime shortly after leaving the resident's room, the employee learned that her daughter had in her possession the resident's money. The employee did not notify the employer that her daughter had been given money by the resident for safe keeping because the resident asked the employee not to say anything.

The issue for review is whether the employee's discharge is for misconduct within the meaning of Wis. Stat § 108.04(5). In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' with in the meaning of the statute."

The commission is satisfied that the employee's conduct on July 16, 2001, and her failure to report the resident's missing money to management evinced an intentional disregard of the employer's interests and of the standard of conduct the employer had a right to expect of the employee.

The employee made no effort to contact her supervisor or the owner at the end of her shift on July 16, 2001. The employee also failed to punch out at the end of her shift while waiting for the third shift person thereby reporting approximately 45 minutes of work that she did not actually perform. It is also not clear why the employee did not wait inside the building for the third shift person, at least after her cigarette break. Also, even if the co-worker did not follow the employee's directive to go back inside the building, the employee should have led by action, as she was a supervisor. Even though the employee's willingness to accept the double shift is noted, the manner in which the employee handled the 45 minutes between her shift and the next shift evinced an intentional disregard of the employer's interests.

Finally, although it was not established that the employee took or received money from the resident, the employee's failure to inform the employer about her daughter's "irregularity" goes beyond that of ordinary negligence sufficient to support a finding of misconduct within the meaning of the law.

The commission therefore finds that the employee was discharged for misconduct in week 29 of 2001, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits amounting to a total of $4,732.00, for which she is not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), be cause although the over payment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 29 of 2001, and until seven weeks have elapsed since the end of the week of the discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefits which would have been paid had the discharge not occurred. The employee is required to repay the sum of $4,732.00 to the Unemployment Reserve Fund.

Dated and mailed March 13, 2002
robersc . urr : 135 : 1  MC 668  MC 657   MC 691 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission conferred with the administrative law judge as to his credibility impressions and assessment of those who testified. The commission does not disturb any of the ALJ's credibility impressions and assessment rather it reaches a different legal conclusion based on the facts.


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uploaded 2002/03/15