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

ALVIN GEZELLA, Employee

OSTRENGA EXCAVATING, INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01403732GB

 


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 for the employer as a dump truck driver for about two years. His last day of work was October 10, 2001 (week 41).

A month of more prior to his last day of work the employee notified the employer's vice president that he wanted to take some time off to go on a vacation. The employee was told to speak to Mr. Hoffmann, the project manager. The employee then took his request to Mr. Hoffman, asking for vacation from October 11 through October 22. Mr. Hoffman told the employee he would write it down on the calendar, and as the time came closer they would see if they could accommodate his request. Mr. Hoffman never affirmatively approved the employee's request for vacation time.

Approximately two weeks prior to the date on which the employee was to leave on his vacation the employer's owner, Winnie Ostrenga, told him she did not feel he could have the time off because of the employer's busy schedule. However, the employee continued to plan his vacation and, on October 10, he told Ms. Ostrenga he was leaving on vacation the following day. Ms. Ostrenga responded that the employee was needed at work. She further stated that he was refusing work and that it could affect his unemployment benefits.

The employee went on his vacation, as, planned. When the employee returned from vacation he called the employer to ask if there was any work, and was told he was not needed because the employer had hired a new driver.

The initial question to decide is whether the employee quit or was discharged. The employer contended that the employee voluntarily quit his job by going on an unauthorized vacation. However, the commission credits the employee's testimony that he did not intend to quit his job and concludes that the employer discharged him by hiring a new driver and refusing to return the employee to work upon his return from vacation.

Having concluded that the employee was discharged, the next question to decide is whether his discharge was for misconduct connected with his 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 asked the project manager for permission to take a vacation, but was never expressly granted such permission. The employer's owner eventually notified the employee that she did not feel his request for vacation could be accommodated-, and the commission regards this statement as sufficiently clear to have put the employee on notice that his request for vacation was denied. Further, on his last day of work the employer's owner told him that if he went on vacation it would be considered a refusal of work which could affect his unemployment benefits. The commission believes that a reasonable person would have understood this statement to mean that, if he went on vacation, he would not have a job to come back to. Under all the circumstances, the commission believes that the employee's actions in taking an unauthorized vacation amounted to misconduct connected with his employment.

The commission, therefore, finds that in week 41 of 2001, the employee was discharged 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 in weeks 44 of 2001 through week 24 of 2002 in the total amount of $8436, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 41 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. He is required to repay the sum of $8436 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on December 16, 2001, 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.

Dated and mailed June 27, 2002
gezelal . urr : 164 : 1  MC 605.07  MC 626

David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission conferred. with the administrative law judge about witness credibility and demeanor. The administrative law judge indicated that she credited the employee's testimony that the project manager told him he did not believe it would be a problem for him to go on vacation on the days in question and, further, that she thought the project manager was attempting to cover up the fact that he had granted the employee permission after he realized he should not have done so. The commission disagrees with the administrative law judge's credibility assessment. The commission believes that the employee was untruthful in his testimony that he would not have gone on vacation if he had realized it would cost him his job and it finds the employer's witnesses to be more credible. Moreover, the commission believes that, even if the employee was originally granted permission to take a vacation, such permission was later rescinded by the employer.

Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison. WI 53707, to establish an agreement to repay the over payment.

cc: Attorney Lawrence F. Pitts


Appealed to Circuit Court. Affirmed December 20, 2002. [Circuit Court decision summary]

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