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

BRIAN H WOLFF, Employee

PIONEER CREDIT UNION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02400005GB


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 49 of 2001, if otherwise qualified.

Dated and mailed September 25, 2002
wolffbr . usd : 132 : 9  MC 665.01  PC 714.11

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision that found the employee was discharged from his employment but not for misconduct connected with his work. The employer objects to the ALJ's refusal to consider incidents occurring more than one year prior to the employee's discharge. However, some limits must be placed on the period of employment to be examined at an unemployment insurance hearing. There are workers who have been discharged after 30 or 40 years of employment. There are other workers like the employee whose employment was of a shorter term. However, it is not unreasonable to at least initially focus on events occurring closer in time to the separation. Generally, incidents occurring closer in time to the discharge play a greater role in the employer's decision to discharge an employee than incidents more remote in time from the discharge. In this case, the ALJ focused on the employee's conduct in the latter part of his employment. However, the ALJ in fact considered conduct that occurred more than a year prior to the discharge. The ALJ considered an incident that occurred two years prior to the separation because it was similar to the incident that prompted the employee's discharge.

The evidence reflects that the employer appropriately disciplined the employee. However, as noted by the ALJ, the question remains whether the employee's conduct constituted an intentional and substantial disregard of the employer's interests. The employee clearly exercised poor judgment in making the comments he did in December of 2001, particularly since he had been admonished for making inappropriate comments two years earlier. However, the employee did not intend anyone who might be offended by his comments to hear such comments. The commission agrees with the administrative law judge that while the employer had valid reasons for discharging the employee, the employer did not demonstrate that his discharge was for conduct that rose to the level of misconduct connected with his work.

cc: 
Pioneer Credit Union, Attn. Wendy O'Brien
Attorney Prashanth Jayachandran


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uploaded 2002/10/04