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

DION D WARD, Employee

DIAMOND DETECTIVE AGENCY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03604533MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 17 of 2003, if otherwise qualified.

Dated and mailed November 5, 2003
warddio . usd : 115 : 1    MC 655

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

Even accepting the employer's version of events, i.e., that the employee was discharged for continuing to watch television and talk on his personal cell phone on work time after he had been warned on one previous occasion that this conduct was unacceptable, the record does not support a conclusion of misconduct.

The commission has been consistent in holding, except in those cases in which the alleged conduct is sufficiently egregious, that, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that his job is in jeopardy or will be if he engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000);  Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979); Munoz v. LaCosta, Inc., UI Hearing No. 02607640MW (LIRC April 4, 2003). Here, the employer failed to show that the employee was ever advised what the consequence would be if he continued to watch television or engage in conversations on his personal cell phone on work time.

The remaining question, then, is whether the subject conduct was sufficiently egregious to relieve the employer of its responsibility to make the employee aware that his job would be in jeopardy if he continued to engage in it. The conduct at issue here does not rise to the level the commission has generally held would satisfy this standard. See, Gray v. Walgreen Co. Illinois, UI Hearing No. 9002303MD (LIRC Nov. 12, 1999) (employee engaged in misconduct when, during a single shift, employee was tardy, refused several times to acknowledge or carry out supervisor's direct order, was rude to a customer, and left work without permission); Casper v. Brakebush Brothers, Inc., UI Hearing No. 02006072BO (LIRC April 4, 2003) (employee engaged in misconduct when refused to carry out supervisor's direct order to complete work task, and then refused second level supervisor's direct order to come to his office); Musial v. Algoma Lumber Co., UI Hearing No. 99402149GB (LIRC Feb. 24, 2000) (employee engaged in misconduct when told sexually offensive joke to customer, repeatedly failed to follow supervisor's instructions on appropriate method for completing work task, and lied to supervisor); Cook v. Goodyear Tire and Rubber Co., UI Hearing No. 02001841MD (LIRC Aug. 8, 2002) (employee engaged in misconduct when repeatedly refused to carry out work assignment). The facts here are somewhat parallel to those in Koester v. Christensen Heating & Air Conditioning, Inc., UI Hearing No. 02401291AP (LIRC Dec. 4, 2002), where the commission found misconduct when the employee continued to use his employer-provided telephone for personal purposes despite two prior warnings. The difference, however, is that, in Koester, as a part of the second warning, the employee was told that his employment would be in jeopardy if he continued to engage in this conduct. In the absence of such a warning here, the commission concludes that the employer has failed to sustain its burden to prove misconduct. The facts here are more closely comparable to those in Andjelic v. Metro Milwaukee Auto Auction, UI Hearing No. 02611061MW (LIRC Sept. 19, 2003), where, after two warnings that his conduct was unacceptable, the employee again engaged in a personal cell phone conversation on work time. The commission concluded that the employer had failed to prove misconduct since the employee had not been warned that his conduct placed his job in jeopardy, and since the conduct at issue was not sufficiently egregious to relieve the employer of its responsibility to make the employee aware that his job would be in jeopardy if he continued to engage in it.

 


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uploaded 2003/11/10