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

STEVEN L GOVIN, Employee

AURORA RESIDENTIAL ALTERNATIVES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01201934EC


On December 4, 2001, the Department of Workforce Development issued an initial determination which held that the employee was discharged for misconduct connected with his employment. The employee filed a timely request for hearing on the adverse determination, and hearing was held on January 23, 2002 in Eau Claire, Wisconsin before a department administrative law judge. On January 25, 2002, the administrative law judge issued an appeal tribunal decision reversing the initial determination of misconduct. The employer filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based on the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee in this case worked approximately three years as a community living assistant for the employer, a concern which provides assistance/services to individuals with disabilities. The employer discharged the employee on November 13, 2001 (week 46), for having left a client unattended in an Eau Claire Best Buy on November 3. The commission concludes that the employee's failure was grossly negligent and, as such, misconduct for unemployment insurance purposes. The commission therefore reverses the appeal tribunal decision.

The employee was assigned to a home in which resided two disabled men. One of these clients experienced mental retardation and required 24-hour supervision with live-in staff. This individual was also classified as a pedophile, given that he on occasion would make inappropriate sexual comments to strangers, including children.

On Sunday, September 23, the employee and the client stopped at a gas station/convenience store for the client to purchase a newspaper. The client attempted to make his purchase, but did not have enough money for all of it. Behind him in line, coincidentally, was the employer's regional director, who covered the client's purchase. The regional director was concerned about the matter and so reported it to the employer's program director (her subordinate but the employee's supervisor). In response, the program director wrote a note onto the log for the group home, in which he advised staff generally to re-read the client's history and to not trust him to be alone in public. That history indicated that the client required 24-hour supervision with live-in staff (who would be able to sleep during the night, but would have to be available for any needs the client would have during the night).

On Saturday, November 3, 2001, the employee brought the two clients he worked with, to an Eau Claire Best Buy. The employee's second client was speaking to a salesperson about DVD players. The first client (the one from the September 23 incident) asked the employee to look at cassette tapes. The employee asked the client to wait until he (the employee) finished discussing DVD players with the salesperson and the employee's second client. After speaking with the salesperson for a couple of minutes, the employee turned and discovered the first client was no longer there. The employee began looking for the client but the store was crowded and the employee did not see him. The employee went to the parking lot to the employer's van, because he thought the client might be hiding in it. Although the client was not in the van, he shortly thereafter exited the store and found the van. One of the employer's administrative assistants was at the store at the time in question and saw the client in the store unattended. She reported the matter to the employer, resulting in the employer's discharge of the employee on November 13, 2001 (week 46).

In Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the court said, in part, as follows:

[Th]e 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.

The misconduct standard encompasses carelessness or negligence of such degree as to be tantamount to wrongful intent or evil design. The commission believes the employee's "loss" of the client in the electronics store meets that standard. The client's condition was such that he was not to be left unattended at any time, and certainly not in a large, crowded store on a Saturday. The employee was grossly negligent in allowing the client to wander off, and no mitigating circumstances reduce the employee's culpability.

The commission therefore finds that, in week 46 of 2001, the employee was discharged for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employee was paid unemployment insurance totalling $5,023.00 for weeks 46 through 52 of 2001 and weeks 1 through 21 of 2002, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employee fault as provided in Wis. Stat. § 108.04(13)(f), yet it also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 46 of 2001, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employee must repay $5,023.00 to the Unemployment Reserve Fund.

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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed June 4, 2002
govinst . urr : 105 : 3 MC 660.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal of the appeal tribunal decision is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission believes the employee's admitted conduct was, as a matter of law, grossly negligent and, as such, misconduct for unemployment insurance purposes.


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uploaded 2002/06/07