BRETT E BEBO, Employee

SCHINDLER ELEVATOR CORP, 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, except that it makes the following modifications:

The fourth sentence in the fourth paragraph of the FINDINGS OF FACT AND CONCLUSIONS OF LAW section of the appeal tribunal decision is modified to read as follows:

"The employee seriously erred in judgment by operating employer vehicles while his operator's license was suspended."

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed April 11, 2003
bebobre . umd : 115 : 1  MC 665.01  MC 699.05 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

The issue is whether the employee's discharge was for misconduct connected with his employment.

The employer failed to prove that the employer's attendance record justified the August 9 counseling, or that the employee drove the employer's vehicle the weekend of August 17/18. Regarding the issue of whether the employee had permission to take the vehicle home that weekend, his testimony and that of his supervisor are in direct conflict, the administrative law judge (ALJ) credited the employee, and the commission finds to reason to overturn the ALJ's determination in this regard.

The commission concludes that the employee did engage in misconduct when he drove the employer's vehicles without possessing a valid driver's license. However, the employer did not discharge the employee for this reason, and the commission has been consistent in holding that, as a result, the employer would have to show that the employee engaged in some other misconduct after the disciplinary warning relating to the suspension of his driver's license in order to prove that the employee was discharged for misconduct. See, e.g., Rash v. Maynard Steel Casing Co., UI Hearing No. 00606694MW (LIRC Dec. 5, 2000); Pierce v. The Kelch Corp., UI Hearing No. 00602402MW (LIRC May 31, 2000)

Here, the employee was subsequently warned about the quality of his work on a job. Not only was this not the same type of conduct which the employee had been warned could result in his termination (a work performance issue versus a disciplinary track issue), but the employee credibly testified that he believed the technique he employed was sound and that the employer didn't require him to re- do the job, and the employer didn't successfully rebut this testimony.

The employee was also subsequently warned about failing to report to the office at 8 am on September 17 as directed by his supervisor. The ALJ credited the employee's version of events and the commission agrees with the ALJ that the record does not support a conclusion that the employee intentionally violated an employer directive in this regard. It should also be noted that the employer did not rebut the employee's testimony that his supervisor did not discuss with him the reason he hadn't been there at 8 am that day or indicate in any other way that something was wrong.

The final incident which resulted in the termination occurred on September 19. The ALJ found the employee's version of events more credible, the commission finds no reason to overturn this determination by the ALJ, and agrees that it appears incongruous that the employer would discharge a relatively long-term employee without discussing with him the incidents leading to the discharge decision and giving him a chance to justify and explain his actions.

The commission concludes as a result that the incidents which occurred subsequent to the final written warning were not sufficient to support a conclusion that the employee was discharged for misconduct.

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uploaded 2003/04/18