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

CHRISTINA L FANTA, Employee

MERRICKS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02008582BO


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 approximately seven years as a payroll coordinator for the employer, a milk replacer manufacturer. She was discharged from her employment on November 8, 2002 (week 45).

The issue to be decided is whether the employee's actions, which led to her discharge by the employer, constitute misconduct connected with her employment.

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."

In March of 2002, the employee received a one and one-half day suspension for failing to transmit payroll information to the employer's bank so its workers paid by direct deposit would have their accounts credited on a timely basis.

On November 7, 2002, the employee again neglected to transfer the above-noted information. Her first discipline put her on notice that a recurrence of this problem would result in her discharge. Although she realized she had forgotten to perform this function after she returned home and went back to the employer's business at approximately 11:30 p.m. in order to transfer this information, she could not gain access to her computer in order to process the transaction after hours.

The employee explained that she had become engrossed in another work assignment given to her on the day in question and simply forgot to transfer the payroll information to the bank. A reminder notice that she had entered on her E-mail system did not activate because she was working on another project and did not have her E-mail on.

The employee did not intentionally engage in the conduct for which she was discharged. The employee attempted to take steps to ensure that the conduct was not repeated, in that she set up a reminder system on her E-mail. The reason the employee forgot about transferring the funds was because she was engrossed in another project. The employee did not turn her E-mail system on because she must have it off to process payroll or the payroll "bombs." The employee did remember the transfer after she had gone home and made every effort to send the ACH file so that direct deposits would be made on time. While the employer may have made a valid business decision when it discharged the employee, the commission cannot conclude that the employee's failure to transfer funds, under the circumstances, was so negligent that it amounted to misconduct connected with the employee's work.

The commission therefore finds that in week 45 of 2002, the employee was discharged, but that her discharge was not for misconduct connected with her work for the employer, 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 45 of 2002, if otherwise qualified.

Dated and mailed July 10, 2003
fantach . urr : 145 : 1  MC 657 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ because of a differing assessment of witness credibility and demeanor. Rather, the commission reversed the ALJ's decision because it reached a different conclusion when applying the law to the facts found by the ALJ.


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


uploaded 2003/07/14