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


TAMARA I MCCABE, Employe

CREATIVE LIVING ENVIRONMENTS INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97605763WK


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 employe is eligible for benefits, if otherwise qualified.

Dated and mailed: December 17, 1997
mccabta.usd : 105 : 1 MC 660 MC 664

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The general tenor of the employer's petition for review is that the employe disregarded the employer's standards, even if her doing so was neither deliberate nor a substantial interference with the employer's operation (page 5 of petition for review). The employer appears to argue that it had good cause to terminate the employe's employment because of the employe's inability to complete her scheduled work during her scheduled work hours. When an employe who has been discharged files a claim for unemployment compensation benefits, though, the issue is whether that discharge was for misconduct pursuant to Wis. Stat. § 108.04 (5). If the discharge was for misconduct, then the employe is ineligible for benefits until the employe meets the requalification requirements of that statute. Both the initial determination and appeal tribunal decision refer to the definition of misconduct from Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941). The Department of Workforce Development and the commission refer to this standard when determining whether a discharge has been for misconduct. This is a different standard from what might otherwise constitute good cause for a discharge, within the general employment law context.

In light of the above, the issue before the administrative law judge and the commission is whether the employe's failures were the intentional and substantial disregard of reasonable standards which is misconduct for unemployment compensation purposes. The commission agrees with the administrative law judge that they were not. The employe essentially was "between a rock and a hard place," since she was operating under two directives she could not simultaneously meet: to perform all her duties but not to work overtime. The record indicates that the employe was not able to complete all her duties in her eight daily hours of work, but that this was not due to intentional failure on the employe's part. Given these factors, the employe's failures simply do not rise to the level of misconduct for unemployment compensation purposes.


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