TRACY WITHERSPOON, Employee

ALL SAINTS ST MARYS MEDICAL CENTER INC, 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 the employer, a medical clinic, for almost four years as a customer service associate. Her last day of work was March 22, 2002 (week 12).

On January 26, 2001, the employee received a "Performance Re-instruction," the first step in the employer's four-step disciplinary process, for conducting personal business during work hours and for taking excessive breaks. The employee was directed to refrain from conducting personal business at work and warned that failure to do so may lead to further corrective action up to and including termination. The employee received no additional warnings thereafter and no further disciplinary steps were undertaken. A performance review issued a year later, on January 23, 2002, made no reference to any performance problems.

The employee made numerous telephone calls to her husband and her sister in December of 2001 and in January, February and March of 2002. The employee checked in with her husband several times each day about matters involving their children and to arrange for her transportation home. On March 23, 2002 the employee was discharged for making an excessive number of personal telephone calls at work. The employee indicated that she was unaware of the length of the calls and that if the problem had been brought to her attention, she would have changed her behavior.

The issue to be decided is whether the employee's discharge was due to misconduct connected with her 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 employee's personal telephone usage was excessive. However, it is not difficult to see how a worker could lapse into a habit of making excessive personal calls without fully realizing the extent of the calls, and the commission believes that the employee should have been given a greater opportunity to conform her conduct to the employer's expectations. Although the employee was issued a Performance Re- instruction in January of 2001 with regard to performing personal business on work time, the first of four disciplinary steps provided for under the employer's disciplinary policy, she was not counseled or disciplined about her conduct in the 14 months preceding her discharge. Indeed, her most recent performance review, conducted on January 23, 2002, made no reference to a problem with personal telephone calls and gave the employee high marks for customer service. Given all the facts and circumstances, the commission does not believe that the employee was on notice that her actions were placing her job in jeopardy, and it finds that her conduct, while clearly objectionable to the employer, did not amount to misconduct as defined in Boynton Cab.

The commission, therefore, finds that in week 12 of 2002, the employee was discharged and not for misconduct connected with her employment, 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 12 of 2002, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed October 17, 2002
withetr . urr : 164 : 1 MC 688.1 MC 696

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: Although the commission conferred with the administrative law judge regarding witness credibility and demeanor, its reversal is not based upon a differing assessment of witness credibility. The appeal tribunal decision relied on an erroneous finding that the employee received a Performance Re- instruction in January of 2002, only a few months prior to her discharge, when in fact the Performance Re-instruction was issued a year earlier. The commission's reversal is based upon its conclusion that, where the employee's last warning about her conduct was issued more than a year prior to her discharge, she was not given adequate notice that her job was in jeopardy as a result of the telephone calls.

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uploaded 2002/10/25