CORDELL JARRETT, Employee
GARDEN-FRESH FOODS 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 two and one half months as a truck driver for the employer, a producer of ready-made salads.
The issue is whether the employee's discharge was for misconduct connected with his employment.
The employee showed up for work on time on October 25, 2002. Early in his route, around 7 or 7:10 am, while he was near his home, the employee began to feel ill and realized that he needed to use the bathroom immediately. The employee parked the truck in front of his house, left the refrigeration unit running, padlocked the truck, and went into his house to use the bathroom.
The refrigeration unit on the employee's truck creates a lot of noise when it is running. One of the employee's neighbors called the employer around 7:15 am to complain about the noise. This neighbor then called the police about the noise, and the police called the employer around 7:30 am and directed the employer to come and move the truck.
The employee's supervisor moved the truck around 7:45 am as directed. The employee then noticed the truck was gone, combed the neighborhood on foot for it, and finally called the employer around 8:15 am to report that his truck was missing. The employee got into a dispute with the neighbor who had complained to the employer and she called the employer and reported that the employee had threatened her. The employer discharged the employee based on this incident.
The employee went in to the employer's offices around 3:00 p.m. on October 25 and his supervisor directed him to sign the discharge notice. The discharge notice (exhibit 1) states the reason for discharge as "unauthorized use of company vehicle/time for personal or unknown reasons, employee sent out on daily deliveries and went home instead, causing neighbors to call police from running truck in residential area."
The employee told his neighbor after the incident that, if he couldn't park in front of her house, she couldn't park in front of his, and that he would call the police if she parked in front of his house.
The employee's supervisor, after the incident, told him that he should have gone to a restaurant to use the bathroom facilities when he began feeling ill rather than going to his home.
When the employee asked his supervisor, on October 28, why he had been fired, the supervisor told him that, when he brought the truck back, his boss told him that the employee's neighbor had called and reported that he had threatened her and that was why he had been fired.
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' within the meaning of the statute."
The commission concludes that this was an isolated incident of poor judgment, not misconduct. Since the employer advised the employee that he should have stopped at a restaurant rather than at his house, the employer obviously agreed that it was appropriate for the employee to stop and use a bathroom once he began feeling ill and to leave his truck unattended but secure while he did so. The employer failed to show that the employee used more time than he needed when he was attending to his illness. Even though it is conceded that the refrigeration unit on the truck is noisy, the record does not establish why the employer expected the employee to realize that this noise was more appropriate adjacent to a restaurant than in a residential neighborhood, and the record does not show that the employee was ever instructed not to drive his truck into, or park in, a residential area. The better course of conduct would have been for the employee to have called the employer once he became ill and request guidance as to how to proceed. However, given his unrebutted testimony that he needed to use the bathroom immediately, and that he was indisposed for 20 minutes once he reached the bathroom, it would have to be concluded that extenuating circumstances existed for his failure to immediately contact the employer, and that his failure to do so was at most poor judgment, not misconduct.
It's obvious from the record that the employer discharged the employee because the neighbor got the police involved and reported that the employee had threatened her. The record does not show that the employee could reasonably have anticipated that one of his new neighbors would take the extreme action of calling the police during the day because his truck, which had only been parked there a short time, was making noise. Moreover, the only "threat" that the record shows the employee made was to tell his neighbor he would react as she had if she were to park a vehicle in front of his house. This was not a threat of physical harm, or damage to property, but instead a commitment to react in kind.
Based on the above, the commission concludes that the record does not support a conclusion that the employee engaged in an intentional and substantial disregard of the employer's interests, or in carelessness or negligence of such degree or recurrence as to justify a conclusion of misconduct.
The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 43 of 2002, if otherwise qualified.
Dated and mailed May 20, 2003
jarreco . urr : 115 : 1 MC 658 MC 675
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
/s/ James T. Flynn, Commissioner
NOTE: The commission did not confer with the administrative law judge because it did not overturn any of his findings of fact or credibility determinations, but instead reached a different conclusion based on the application of the law to these facts.
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uploaded 2003/05/30