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

MICHELE S JURASOVICH, Employee

VAN RU CREDIT CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03606070MW


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 almost four years as a collections representative for the employer, a collection agency. Her last day of work was May 23, 2003 (week 21), when she was discharged.

The issue is whether the employee was discharged for misconduct connected with her employment.

In April of 2003, due to downsizing, the employee was offered and accepted transfer to a different unit, i.e., the Michigan unit. She understood that, during the first three or so months in the unit, her ability to earn a bonus, which had comprised 50% of earnings in the previous unit, would be reduced, but that the employer would attempt to make this loss up to her during these months.

On May 23, 2003, the employee learned that she had earned no bonus for April. She went to the office manager's office to discuss this with him. She was upset because the loss of the bonus meant that she would be unable to make her rent payment, which was due in a few days, or her car payment. She explained this to the office manager who told her that, when she had transferred to the Michigan unit, no specific promises had been made to her, that business had been slow, and that nothing could be done to help her out.

The employee responded to the office manager in a loud tone of voice. The employee started to leave the office, but the office manager directed her to come back. He told her that he was not going to tolerate having her talk to him like that. The employee then continued speaking to the office manager in a loud tone of voice even after he asked her more than once to calm down and to lower her voice. The employee was discharged as a result of this incident.

The employee did not use profanity or threats during this incident, or engage in physical intimidation or contact.

As the commission noted in White v. ARA Cory Refreshment Services, UI Hearng No. 03600041MW (LIRC May 9, 2003), generally, refusal to follow a reasonable employer directive is misconduct, but a single isolated incident of disobedience is not misconduct if the employee has a defensible reason for it. Although the employee failed to follow a reasonable employer directive, i.e., to lower her voice during her discussion with the office manager, she did not threaten or attempt to intimidate him (see, e.g., Miller v. Milwaukee Teacher Education Center, UI Hearing No. 02608597MW (LIRC May 19, 2003); she did not use profanity or verbally abusive language (see, e.g., Miller, supra.; Calder v. Peoplease Corp., UI Hearing No. 02004412MD (LIRC Feb. 3, 2003); Piskula v. Midwest Products & Engineering, Inc., UI Hearing No. 02600171MW (LIRC Aug. 28, 2002); she was not disrespectful or belligerent (see., e.g., .Kneubuhler v. Oscar Mayer Foods Corp, UI Hearing No. 96001045MD (LIRC July 12, 1996); she did not refuse to carry out a work assignment (see, e.g., Gray v. Walgreen Co. Illinois, UI Hearing No. 99002303MD (LIRC Nov. 12, 1999); and she had not been warned previously about such conduct or any other performance deficiencies (see, e.g., Gray, supra.; Calder, supra.; Piskula, supra.). Moreover, the employee was justifiably upset with the office manager who had induced her to accept the Michigan assignment by reassuring her that the employer would make up to her the decrease in bonus payments she was likely to experience in the first three months in the unit; and, when she attempted to defuse the situation by leaving his office, he called her back in to assert his authority.

The commission concludes that this single incident over a period of nearly four years of satisfactory employment, given the extenuating circumstances, may have justified discipline but did not justify termination.

The commission concludes that, in week 21 of 2003, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat.
§ 108.04(7)(a); but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 21 of 2003, if otherwise qualified.

Dated and mailed March 12, 2004
jurasmi . urr : 115 : 3  MC 610.06

David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the facts or the credibility of witnesses, but instead upon a differing interpretation of the relevant law.

cc: Van U Credit Corporation (Brookfield, Wisconsin)


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