CHRISTOPHER D KOESTER, Employee

CHRISTENSEN HEATING & AIR CONDITIONING 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 nearly two years as a service technician for the employer, a heating and air conditioning sales and service business. The employer discharged the employee on February 14, 2002, for poor performance, excessive personal use of the company provided telephone, and excessive use of fuel compared to other workers.

During the last several months of the employee's employment, the employer was receiving 20 to 25 percent more call backs on the employee's work when compared to other workers. The employer made references to this fact in conversations with the employee in December of 2001 and January of 2002.

The employer provided a telephone to the employee along with 300 minutes of airtime per month. The employee regularly exceeded the minutes provided. In November and December of 2001 the employee exceeded the minutes by 13 hours (780 minutes). In October or November of 2001 the employer informed the employee that he was not to use the employer-provided telephone for personal use. The employee continued to exceed the 300 minutes of airtime provided and used the telephone for personal reasons. In December of 2001, the employer again instructed the employee not to use the telephone for personal reasons. The employee noted to the employer that the next bill would contain calls already made in the billing period. The employee was aware after the employer's December of 2001 warning that his employment was in jeopardy if he continued to use the employer's telephone for personal reasons. After that December of 2001 warning, the employee continued to make personal calls on the employer's telephone. When the employer received its bill reflecting January of 2001 usage and discovered the employee continued to exceed the provided minutes, the employer discharged the employee.

The issue to be decided is whether the employee's discharge was for misconduct connected with his 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 employee acknowledged that he did have slip-ups in his performance. The employee conceded that his personal life had adversely affected his work. The employee acknowledged that the employer spoke to him about the number of callbacks it was getting from the employee's work. The first time the issue of fuel was brought up was at the time of discharge. The employee denied that he was using the employer's vehicle for personal reasons. The evidence did not establish that the employee's poor performance or use of the employer's vehicle constituted misconduct.

The employer spoke with the employee about the excessive phone minutes in October/November and December of 2001. By his own testimony, the employee was aware after the December of 2001 conversation with the employer that his conduct in using the employer's property for personal reasons was jeopardizing his continued employment. Despite this knowledge, the employee admittedly violated the employer directive and continued to use the employer's telephone for personal calls. The employee's conduct was insubordinate and demonstrated an intentional and substantial disregard of the employer's interests in restricting the use of its property to business purposes.

The commission therefore finds that in week 7 of 2002 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $2,592 .00 for weeks 8 through 15 of 2002, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment 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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 7 of 2002, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $2,592.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on February 18, 2002, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

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 otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed December 4, 2002
koestch . urr : 132 : 1 :  MC 640.03

/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 her impressions of witness credibility and demeanor. The ALJ indicated that she found both the employee and the employer to be credible, but found the employer's lack of documentation to be problematic. The commission has reversed the ALJ as it finds based on the employee's own testimony that he continued to violate the employer's reasonable directive not to use its telephone for personal reasons after being notified that his employment was in jeopardy.

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uploaded 2002/12/13