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

RUSSEL J DE HAAN, Employee

MILLSTONE COFFEE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02600570RC


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 eight months as a route driver and laborer for the employer, a wholesale coffee bean supplier to supermarkets. The employee's last day of work was December 7, 2001 (week 49), when he was discharged.

The employee was discharged for a series of performance issues including, finally, damage to a company truck the employee drove. On September 17 the employee allegedly forgot his handheld computer but decided not to drive back to his home in Kenosha to retrieve it; instead he alleged he went to the stores and cleaned up the displays without making any product deliveries. On September 18 the employee did remember to bring his handheld computer on his route but his computer printer was not working that day. The employer did not believe the employee's explanation for either day. Rather the employer believed the employee did not work those two days. The employee received a written reprimand for falsifying information regarding his time for those two days.

The employee had also used the employer's corporate American Express card for personal use. The employee testified that he was told he could use the corporate credit card for personal use if he paid the employer back. However, the employee had received written information that prohibited such use and in November of 2001 the employer's operation's manager took away the employee's corporate credit card. On November 26, 2001, the employee again received a written warning for continuing to fail to follow job instructions. The employee was warned that the employee's performance was jeopardizing the employer's business.

On December 4, 2001, the incident that directly led to the employee's discharge occurred. After completing his route on December 4, the employee parked the employer's truck parallel to a hill adjacent to the employer's parking lot. The employee set the parking brake and parked the manual transmission truck in neutral. The employee testified that he was only following the parking instructions of a supervisor who had trained him. Sometime during the evening of December 4 or the morning of December 5 the truck smashed into a nearby building and sustained approximately $5,000.00 worth of damages. As a result of this damage to the employer's truck and other cited performance issues, the employer discharged the employee on December 7, 2001.

The issue for review is whether the employee's discharge was for misconduct. 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."

After the damage, the employer discovered that the truck was not engaged in gear and that the emergency brake was only partially in place. The employee argues that he was instructed by the supervisor who trained him to park the employer's manual transmission truck in neutral. The commission finds this testimony inherently incredible. Manual transmission vehicles should always be parked in gear, in the event the emergency brake fails. After the damage, the employer discovered that the truck was not engaged in gear and that the emergency brake was only partially in place. Based on the record's circumstantial evidence, the commission infers that the employee failed to place the truck in gear and fully engage the parking brake and that this failure led to the truck's damage. The employee either knew or should have known that parking a truck in neutral parallel to a hill was not only dangerous and unsafe but grossly negligent in the care of the employer's truck. The commission is therefore satisfied that the employee's actions 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 commission therefore finds in week 49 of 2001 the employee was discharged and that the discharge was for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits amounting to a total of $7,037.00 to which the employee is not eligible and to which the employee 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. Benefit checks for weeks 51 through 52 of 2001 and $112.00 of the benefit check for week 2 of 2002 were forfeited. Since benefits are now denied for such weeks, they cannot be applied to the forfeiture. The amount restored to the forfeiture balance is $654.00.

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 appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 49 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 is required to repay the sum of $7,037.00.

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 September 19, 2002
dehaaru . urr : 135 : 8  MC 662  MC 687 PC 714.04

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission conferred with the administrative law judge as to his credibility impressions and assessment of those who testified. The ALJ explained that he found the employee's testimony that he was instructed to place the manual transmission truck in neutral consistent with his own experience and consequently believed that the employee was trained to do so. The commission respectfully disagrees with this credibility determination. Rather, the commission is satisfied that the employee disregarded the employer's instructions by negligently failing to place the manual transmission truck in gear when parking it for the night. The commission is satisfied that the employee's conduct in this regard was so grossly negligent that it rose to the level of misconduct connected with his employment.


Note: the decision is displayed here as affected by a technical amendment made October 2, 2002 to correct the overpayment figures.

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uploaded 2002/09/30