KIMBERLENE CARTER-STEWART, Employee

FOOD TEAM, Employer

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:

The employee worked for approximately two years as a staffing manager for the employer, a temporary help service. The employee's last day of work was March 7, 2002 (week 10), when she was discharged.

On February 28, 2002, the employer's director of operations issued a memo to the employee covering the employer's expectations of her. She was advised in that memo that personal telephone usage was unacceptable, that e-mailing should be done through the employer's address and that if she chose to use her Yahoo e-mail she should do so on her own time. Various other matters were also covered in the memo including problems the employee had with organization, filling orders and greeting customers. The warning concluded, "I realize that in many of these cases bad examples have been set and you may not have been aware of some policies. This is meant to be a communication of the standards of both our company as well as this office. Please sign below that you understand the above expectations. We will sit down in two weeks and discuss how things are progressing. It is imperative that I see improvement in all of these areas."

On March 6, 2002, the employer downloaded a number of documents from the hard drive on the employee's computer. A number of the documents found on the employee's computer were not related to her work for the employer. The employer questioned the employee about the documents. The employee denied doing personal business on company time. The employer discharged the employee on March 7, 2002, for performing personal business on company time.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment. 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 commission finds that the employer failed to establish that the employee was discharged for misconduct connected with her work. The February 28, 2002, memo clearly informed the employee of the standards of conduct the employer expected of her. At the same time, the employer recognized that the employee may not have known those standards. The employer did not present any evidence at the hearing that the employee violated the standards set forth in the February 28, 2002, memo after it was issued to her. That the employer downloaded documents from the employee's computer after that date did not establish that the documents were composed after February 28, 2002. All the documents that do contain a date pre-date the February 28, 2002, memo. Further, the employee credibly testified that she composed the documents during her lunch break and not on the employer's time.

The commission therefore finds that in week 10 of 2002, the employee was discharged but not for misconduct connected with the work for the employer, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 10 of 2002, if she is otherwise qualified.

Dated and mailed September 26, 2002
carteki . urr : 132 : 9 : MC 665.04   MC 655  MC 690

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that he believed the employer discharged the employee when it discovered the extent to which she was engaged in personal business at work. This may be, but the fact remains that the employer did not establish that the employee violated the terms of the February 28 memo. The commission declines to find misconduct where, as here, the employer itself concedes that its expectations may not have been clearly expressed and that bad examples may have been set for the employee. Finally, the commission disagrees with the ALJ that the fact the employee wrote, "go to lunch" on her schedule nearly each day meant that she physically left the building and therefore did not perform personal work during her lunch break. The commission finds it more credible that the employee put the notation on her schedule each day as a reminder of when to take her lunch break.

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uploaded 2002/10/04