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

RICHARD W DENSMORE, Employee

TRUCK COUNTRY OF WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02004620MD


On July 9, 2002, the Department of Workforce Development issued an initial determination which held that the employee was discharged for misconduct connected with his employment. The employee filed a timely request for hearing on the adverse determination, and hearing was held on August 7, 2002 in Madison, Wisconsin before a department administrative law judge. On August 9, 2002, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately four months as a shipping/receiving and delivery worker for the employer, a heavy-duty truck dealership. The employer discharged him on June 17, 2002 (week 24) and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was, and so reverses the appeal tribunal decision.

The employee was late to work eight times in his first three months of employment, on March 26, April 2, 3, 15, 26, and 30, and May 1 and 17. Following an instance of tardiness of more than half an hour on May 21, the employee received a verbal warning from the employer's parts manager.

Following the May 21 verbal warning, the employee was again tardy on May 23, May 24, May 28, May 29, May 30, and May 31. Following this series of attendance failures, the parts manager warned the employee that he would be discharged if he were late again.

The employee was late again, on June 12. Also on June 12, the employee dented a garage door while operating a forklift, resulting in a 2-day suspension by the employer. The supervisor instructed the employee that he could return to work on June 17, but at that time he would have to speak with the employer's parts manager. The employee did return to work on June 17. On his way to meet with the parts manager, the employee had a verbal exchange with one of his supervisors, and referred to that supervisor as a "faggot." Upon hearing this remark by the employee, the parts manager determined to discharge the employee, and did so at that time.

Misconduct for unemployment purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The commission believes the employee's failures meet this standard. His rate of attendance failures was excessive, and his asserted reasons for the instances of tardiness unpersuasive. The employee asserted, for example, that his watch did not coincide with the employer's time clock. That defense may work for one or two instances of tardiness; from that point, however, the employee had to simply calibrate his time with the employer's time clock. The employee's reference to one of his supervisors as a "faggot" is also culpable as an instance of insubordination. The employee's defense again is unpersuasive. The employee asserted that he did not direct the comment at a particular individual, but simply muttered it under his breath. Both the supervisor in question and the employer's parts manager heard the remark, however, so it in fact was not made under the employee's breath and the employee has to take responsibility for it. The commission has not considered the employee's denting of the garage door on June 12 as a basis for its misconduct finding, finally; the record does not establish that the employee had any training in the operation of the forklift.

The commission therefore finds that, in week 24 of 2002, the employee was discharged for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employee was paid unemployment insurance in weeks 25, 27 - 34, and 37 - 52 of 2002, and weeks 1 through 4 of 2003, totaling $3,429.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Of this amount, $122.00 has already been recovered; thus, pursuant to the present decision, the employee must repay $3,307.00 to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employee fault as provided in Wis. Stat. § 108.04(13)(f), yet it also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 24 of 2002, 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. The employee must repay $3,307.00 to the Unemployment Reserve Fund.

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

Dated and mailed March 11, 2003
densmri . urr : 105 : 1 MC 640.15

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner


NOTE: The commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The administrative law judge believed the discharge essentially was for the employee's derogatory reference, a reference the employee had made out of frustration and had not directed to a specific individual. The commission cannot credit the employee's defense that it was not directed at the supervisor, however, as the supervisor and the parts manager both heard the remark. The commission also believes the discharge fairly must be deemed to have been for both the remark and the employee's attendance failures, and not for the remark alone.

cc: Truck Country of Wisconsin, Inc. (Madison, Wisconsin)


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