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

MARY K VEITCH, Employee

THE SHORELINE REAL ESTATE CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02609604MW


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 about thirteen months as a leasing agent for the employer, a real estate management firm. Her last day of work was March 14, 2002 (week 11), and she was discharged on March 19, 2002 (week 12).

On March 14, 2002, the employee reported for work smelling of alcohol. She acted differently than normal and her immediate supervisor, the manager, asked her if she was all right. The employee said that she probably was not. She was then sent home and told that the manager would speak with her on the next day, Friday, March 15. On March 15, the manager advised the employee that she could still work for the employer and that she should report back for work on the following Tuesday, March 19, which was her next scheduled work day.

On March 19, 2002 (week 12), the employee called the employer and told the manager that she was not ready to report back to work. The manager felt that she had worked with the employee as much as she could and notified the employee that she was discharged.

The issue to be decided is whether the employee was discharged for misconduct connected with her work for the employer. 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' with in the meaning of the statute."

Regarding the incident on March 14, the employee asserted that she felt she was able to work. However, the employee acknowledged that when she was asked by the manager if she was all right, she said, "No, I'm probably not." She further acknowledged that she had been up until about 4 a.m. that morning consuming alcohol. She smelled of alcohol and was not acting normal. In view of all of these circumstances, the employer was justified in sending her home.

The employee explained that several workers and one tenant of the building where she worked had made comments to her, indicating that they were aware of what had occurred on March 14; she explained that she was very upset and embarrassed by this and did not report for work on March 19 because of her embarrassment and because she believed the manager had disclosed this information. However, the manager had discussed the incident on March 14 only with an assistant manager and a vice-president, to determine what action the employer would take. The individuals who spoke with the employee did not specify any details to the employee, rather they said they were sorry about what happened.

The employee exercised poor judgment in appearing for work on March 14 smelling of alcohol and after such a late night of drinking. While the employer testified that the employee was not acting herself, it did not specify what conduct led to this assessment. Based on the testimony presented, the commission cannot conclude that the employee was "under the influence" of alcohol on March 14. The employee should have appeared for work on Tuesday, March 19, despite the embarrassment she felt about her conduct the previous week. The employee's absence on Tuesday, March 19, was not for a valid reason. The employer made a valid business decision to discharge the employee. However, the employer did not warn the employee that it considered her conduct in failing to appear for work so serious that it was considering discharging her. The commission cannot conclude that the employee's exercise of poor judgment on March 14, and her one absence for an invalid reason thereafter, rose to the level of an intentional and substantial disregard of the employer's interests.

The commission therefore finds that in week 12 of 2002, the employee was discharged but not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits as of week 12 of 2002, if she is otherwise qualified.

Dated and mailed May 19, 2003
veitcma . urr : 132 : 1 :   MC 653.1  MC 605.09 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner


MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ did not express any strong adverse or favorable credibility or demeanor impression that he had of either party. The commission's reversal is not based on a differing impression of witness credibility but upon reaching a different legal conclusion than that reached by the ALJ.

cc: 
Juneau Village Towers
Attorney Robert C. Menard


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