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

ROBERT J SAMSON, Employee

LES STUMPF FORD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01403441AP


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 four years as a maintenance worker for the employer, a car sales business. His last day of work for the employer was October 3, 2001.

The employee had in the past performed maintenance work on equipment at the employer's president's home property. On October 2, 2001, the employer's president asked the employee to come to the president's home to perform work. The employee refused stating he had unresolved issues with the company involving insurance matters. The president indicated that if the employee had issues with the employer, the president likewise had issues with the employee. The conversation then ended.

After the employee spoke with the president he believed that his job was in jeopardy. He then went to his supervisor and informed his supervisor of the conversation with the president. The supervisor asked the employee if he was refusing to perform work. The employee indicated that he was not going to perform the work at the president's home. The employee was advised to punch out for the day. On October 3, 2001 (week 40), the supervisor discharged the employee for refusing to perform assigned work.

The issue to be decided is whether the employee's discharge was for misconduct connected with his work for the employer. 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 employee was given a reasonable work assignment. He was capable of performing the work and had previously worked at the president's home. The employee's dissatisfaction with an unrelated insurance matter did not justify his refusal to perform work for which he was being paid. The employee knew that his refusal placed his employment in jeopardy. Despite such knowledge, the employee repeated his refusal to perform the work when speaking to his supervisor. The employee's repeated refusal to perform assigned work was insubordinate and demonstrated an intentional and substantial disregard of the employer's interests and of standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 40 of 2001 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $1,878.00 for weeks 41 through 46 of 2001, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment 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 40 of 2001, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $1,878.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on October 9, 2001, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed April 30, 2002
samsoro . urr : 132 : 1 : MC 640.03 MC 640.12 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the ALJ who presided at the hearing. The ALJ indicated that he did not believe the employee's claim that he was too emotionally upset to perform the assigned work. The commission likewise does not credit the employee's claim. The commission disagrees with the ALJ's finding that the employee was not aware his employment was in jeopardy after speaking to the president and was not given a chance to reconsider his refusal. The commission credits the employer's testimony that the supervisor alone made the discharge decision after the employee repeated his refusal to perform work as directed.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: Bruce B. Deadman, JD


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