MICHAEL R HABERLEIN, Employee

AMERICAN APPRAISAL ASSOCIATES 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 21 of 2002, if otherwise qualified.

Dated and mailed March 11, 2003
habermi . usd : 135 : 8    MC 699.05

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

In its petition for commission review, the employer contends that it has met its "prima facie case" by establishing that the employee's conduct was intentional. The employer then argues that the administrative law judge's decision "adds an additional element to the definition of misconduct by finding that because Mr. Haberlein was not warned that his conduct cannot be characterized as misconduct." The employer's arguments do not accurately reflect the misconduct standard when it is applied to the facts of any case.

Here, the employer's lack of warning to the employee was significant to the outcome of this case because the employee was deprived of notice that his poor performance and failure to respond to the e-mails placed his job in jeopardy. Moreover, the lack of warning deprived the employee of an opportunity to improve his performance. While the commission does not condone the employee's failure to perform some of his assigned tasks or respond to his supervisor's e-mails, the employer's arguments either ignore or discount the fact that the employee's "poor performance" arose at the same time he was given additional assignments as a result of another employee's departure. Additionally, the employee's top priority in April was to assist field auditors for the employer's fiscal year audit.

Under these circumstances, the commission is unwilling to characterize the employee's poor performance as an intentional disregard of the employer's behavior or as conduct so grossly negligent as to amount to misconduct. Rather, the commission is satisfied that the record establishes unsatisfactory conduct that was not corrected by the employee as a result of the employer's failure to sufficiently warn him that his performance and failure to respond to the e-mails placed his job in jeopardy. Consequently, the commission affirms the appeal tribunal decision. The commission also notes that the employer's reference to a mistake of fact regarding the first performance incident does not affect the substantive analysis or the outcome of this case.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2003/03/31