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


T G G CLEMONS, Employe

KIDS TALK DAYCARE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97606218MW


On September 19, 1997, the Department of Workforce Development issued an initial determination which held that the employe quit, but not for a reason which would allow the payment of benefits. The employe filed a timely hearing request and a hearing was held before an appeal tribunal. On October 17, 1997, the appeal tribunal issued a decision which affirmed the initial determination and found that the employe was discharged for misconduct connected with his employment. As a result, benefits were denied. The employe has filed a timely petition for commission review.

Based on the applicable law, records and evidence in this case, and after consultation with the administrative law judge, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a day-care center, for about 9 months as a van driver. His last day of work was August 22, 1997 (week 34).

The employe was responsible for picking up the children at their homes and taking them to the day-care center in the morning, then driving them home again at the end of the day. In addition, the employe would occasionally make extra trips to transport sick children, pick up teachers, or drive on field trips. The employe was salaried at a rate of $221 a week.

On the morning of August 22, 1997, the employer asked the employe to come back in at 11:00 a.m. that day to take the children on a field trip. The employe, who apparently had not been given prior notice of the trip, stated that he was unable to do so because he had a meeting to attend. Later that day the employer had a letter delivered to the employe which stated that he would either do what he was told to do, or his pay rate would drop to $5.45 an hour for the 5.5 hours he had worked. After receiving this letter the employe came to see the employer's owner, who told him that he was on a salary to transport the children and that either he did all that was required of him or he would have to take a reduction in pay and hours. The employe responded that he was not paid enough and asked the employer to give him a lay-off slip. The employer's owner agreed to do so. She subsequently gave the employe a letter which indicated that he was dismissed for being unwilling to drive as needed.

The initial issue to decide is whether the employe quit or was discharged.

The employe denied having requested a lay-off and indicated that he was fired. However, the question of whether or not the employe requested a lay-off is immaterial to the resolution of this issue. An employer is not required to accede to a request for a lay-off, and in this case it was ultimately the employer's decision to send the employe a discharge letter and to terminate his employment. Consequently, it was the employer's actions that resulted in the separation, regardless of whether the employe requested a lay-off.

The next question to decide is whether the employe's discharge was for misconduct connected with his employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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' within the meaning of the statute."

The appeal tribunal found that the employe was discharged after he refused to operate the employer's van for a field trip and that this refusal amounted to wilful misconduct. The commission disagrees. The employe told the employer he was unable to drive on a field trip because of a personal appointment. A single instance of unavailability to perform a work assignment of which the employe has been given very little advance notice does not rise to the level of misconduct, as defined in Boynton Cab. Moreover, while the employer contended that the employe later stated he did not feel it was his job to drive on field trips, the employe had never refused to drive on field trips in the past, and a mere statement of opinion does not amount to misconduct unless followed by an actual refusal to perform assigned duties.

Further, and more importantly, the evidence does not indicate that the employe was discharged because of his failure to drive on the field trip. To the contrary, the employer merely told the employe that if he could not drive as needed he would be taken off his salary and paid on an hourly basis. Thus, the employer was willing to retain the employe even if he chose not to drive on field trips, and it was only after the employe stated that he needed more money than what the employer was offering and asked to be laid off that the employer decided to terminate his employment.

The commission, therefore, finds that in week 34 of 1997 the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04 (5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 34 of 1997, provided he is otherwise qualified. There is no overpayment with respect to this issue.

Dated and mailed: February 10, 1998
clemotg.urr : 164 : 1 MC 640.12 MC 665.01

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge regarding witness credibility. The administrative law judge indicated that he did not give any weight to the employe's testimony that he did not drive for the employer because of a personal appointment, since the employe never explained the purpose of the appointment. However, in the absence of anything to suggest that the employe was asked about the appointment and was evasive or untruthful in his response, the commission sees no reason to doubt the employe's testimony in this regard. Moreover, even if the employe did not actually have a personal appointment but merely used this as an excuse to avoid driving for the employer on the day in question, for the reasons set forth in the body of the decision the commission nonetheless does not believe that his discharge was for misconduct.

cc: ATTORNEY PHILLIP BERMAN


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