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

CATHERINE M BANACH, Employee

EAGLE RIVER SUPER 8 MOTEL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02200553RH


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 for about 13 months as a housekeeper for the employer, a hotel business. Her last day of work was during the calendar week ending February 2, 2002 (week 5), when she was discharged.

The issue to be decided is whether the employee's discharge was for misconduct connected with her employment.

The general manager talked to the employee on a number of occasions to ask why her work performance had declined so significantly. For example, there would be crumbs on the floor, and chrome was not shiny. In addition, beds were made incorrectly and there would be sticky substances on the dressers and night stands. On January 11, 2002, the employee was given a first written warning because rooms were dirty. On January 15, 2002, the employer received a complaint from a customer that the customer's room was not properly cleaned. The employer thereupon discharged the employee.

The employee testified that although she did not remember if she left everything as stated in the warning, she could have because she may have been in a hurry. She could have by-passed a lot of things because she was in a hurry. She stated that she got lazy and would miss things. She testified that she was able to do the job and had no explanation for suddenly missing things. The employee further agreed that the employer had tried to assist her quite a few times, but the employee told the employer nothing was wrong. The employee noted that her performance did not go downhill "overnight."

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 testified that she was able to perform her job duties properly, and in fact did so at the beginning of her employment. Given the number of verbal warnings the employee received about her declining performance the employee was or should have been aware that the employer considered the proper completion of her cleaning duties to be of great importance. The employee had no explanation for the decline in her performance other than that she was in a hurry or was being lazy. Therefore, the employee's failure to properly perform job duties she was capable of performing demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with her work.

The commission therefore finds that in week 5 of 2002 the employee was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for weeks 5 through 17 of 2002, amounting to a total of $603.00 for which she was 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), 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 5 of 2002 and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $603.00 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 otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed July 11, 2002
banacca . urr : 145 : 1  MC 664

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ noted the employee made admissions with regard to her failure to properly clean the rooms. However, the ALJ also noted that the employee more or less agreed with everything that was stated and so found her admissions less convincing. The employee was pleasant, and agreeable. The ALJ noted also that the employee was very calm during the hearing. While the ALJ indicated that cleaning was a basic job and could be performed by most people, the ALJ still believed that the employee was probably doing the job to the best of her ability. The ALJ had paid careful attention to the employee's demeanor when she testified and made a thoughtful and reasoned credibility determination. The commission does not lightly reverse the ALJ's credibility determination. However, the employee had been able to perform the job in the past. The employee was aware that her performance had slipped and that the employer put a priority on cleanliness. Finally, the employee herself testified she was able to do the job and supplied reasons for her failure to do it properly. Therefore the commission concluded that had she been performing her job to the best of her ability she would have been able to meet the employer's standards and that she herself was responsible for failing to do so.

cc: Super 8 Motel (Eagle River, Wisconsin)


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