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

EDWARD J GOODVINE, Employee

KENNEDY CONTRACTORS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02609398MW


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 one month for the employer, a concrete contractor. His last day of work was July 26, 2002 (week 30).

On July 25, the employer informed the employee that due to problems with a job the employee had recently supervised, he would no longer receive foreman's wages. The employee responded that he would not accept a pay cut.

The employee performed work for the employer on July 26, 2002. On July 29, 2002, the employee was absent because he was incarcerated due to having unpaid parking tickets. That same date, the employer left a message on the employee's answering machine notifying the employee that his employment was terminated.

The initial issue to be decided is whether the employee voluntarily terminated his employment or was discharged.

The employee did not intend to terminate his employment with the employer. The employee was unable to appear for work on Monday, July 29, 2002, because he was incarcerated. The employee and employer had a previous dispute about the employee's wage rate, but it cannot be concluded that the employee quit over such dispute as he appeared for work on July 26, 2002, the day after such dispute. It was the employer who ended the employee's employment by informing the employee that it had terminated his employment.

The next issue to be decided is whether the employee's discharge was for misconduct connected with his work. 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."

The employee was discharged because of his absence without notice resulting from his incarceration. There is no evidence that the employee's arrest affected his suitability for work. The employee was not absent for an appreciable period. The employer was certainly justified in discharging the employee pursuant to its rules pertaining to attendance. However, there was no evidence that the employee's attendance was otherwise unsatisfactory. The employee's off-duty conduct that led to his inability to work cannot be condoned, but it constituted but an isolated instance of unsatisfactory behavior. Accordingly, the commission finds that the employee's discharge was not for conduct that rose to the level of a wilful and substantial disregard of the employer's interests.

The commission therefore finds that in week 31 of 2002, the employee was discharged but not for misconduct connected with his 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 beginning in week 31 of 2002, if he is otherwise qualified. There is no overpayment with respect to this issue.

Dated and mailed July 17, 2003
goodved . urr : 132 : 1 :   MC 605.091

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission did not consult with the ALJ who held the original hearing. The commission remanded this matter for additional testimony to consider the employee's correct last day of work. The parties agreed at the remand hearing that the employee in fact worked on July 26, 2002. The ALJ's decision found that the employee quit based on two consecutive workdays of absence without notice. The commission's reversal is based on additional testimony provided by the employee and the employer that was not available to the ALJ when he issued his original decision.

cc: Attorney Colleen A. Foley


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