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

REBECCA MCNEIL, Employee

LAKESIDE BUSES OF WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03600639MW


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 as a school bus driver for more than seven years for the employer, a school bus transportation company. Her last day of work was November 11, 2002 (week 46), when she was discharged.

On September 15, 2000, the employee signed a pledge (exhibit #3) that she agreed to check her bus after every route and that failure to do so "will lead to termination of my employment."

The employer's work rules (exhibit #1), which the employee acknowledged receipt of on August 23, 2002 (exhibit #2), require that a driver check her bus after every route.

On November 11, 2002, the employer received notice that a three-year-old child who had been transported by the employee on November 11, 2002, had been found wandering alone in a neighborhood near the location where the employee had parked her bus after finishing her route.

The employee admits that she did not check her bus on November 11, 2002, after finishing her route. The employee was discharged by the employer as a result.

The commission concludes, based on the potentially serious effect of a driver's failure, upon finishing a route, to check to make sure that no children remain on the bus, and the employee's clear understanding of the employer's work rule in this regard and the consequences for violating it, that this single failure by the employee is sufficient to sustain a finding of misconduct. The commission has previously held that a single act by an employee which creates a real possibility of serious injury to others may support a finding of misconduct. See, e.g., Raleigh v. IFE, Inc., UI Hearing No. 99200063HU (LIRC June 7, 1999); Washington v. LIRC and Meritus Education Resources Co., Case No. 97-CV-010214 (Milw. Co. Cir. Ct., May 15, 1998) (misconduct found for a single incident of sleeping where employee responsible for a class of four- and five-year-old children).

The commission therefore finds that, in week 46 of 2002, the employee was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission also finds that the employee was paid unemployment insurance benefits in the amount of $949 for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she must repay such sum to the Unemployment Reserve Fund.

The commission also finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 46 of 2002, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $949 to the Unemployment Reserve Fund.

Dated and mailed September 25, 2003
mcneire . urr : 115 : 3   MC 657  MC 675

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not consult with the administrative law judge because its reversal of her decision is based on undisputed facts and does not disturb any of her credibility determinations. The administrative law judge concluded that, because the employer failed to prove that the employee had actually left a child on the bus, misconduct had not been demonstrated. However, the employee was discharged for failing to check her bus after finishing her route, which she admits and for which she offers no reasonable justification, not for leaving a child on her bus.

cc: Jacqueline Franklin


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