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

IRA D SMITH, Employee

MONARCH CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03606737MW


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 the employer, a machining and fabrication shop, for a little over two years as a machinist apprentice. His last day of work was June 19, 2003, and he was discharged June 20, 2003 (week 25).

On July 3, 2002, the employee received a warning for drilling a hole 1.350 inches off location. The employee made the mistake because he misread the print.

On August 20, 2002, the employee received a warning and one-day suspension for having left a note for the next shift stating that a part was complete and ready to come off the machine when, in fact, holes were missing. The warning indicated that any future infractions would result in termination.

On December 18, 2002, the employee received a warning for taking eight hours to complete a three-hour job. The employee explained that he was having difficulty with the part. In spite of the earlier warning, the employer did not discharge the employee because it wanted to give him another opportunity.

On March 11, 2003, the employee received another warning about the need to improve his productivity.

On June 18, 2003, the employee failed to consult the diagram and machined two parts that were not to print. He had previously run a similar part and believed he knew what to do. The employee was discharged the following day as a result of his poor performance.

The question to decide is whether the employee's discharge was for misconduct connected with his employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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' within the meaning of the statute."

The employee was discharged because of unsatisfactory work performance. The employee was halfway through his apprenticeship at the time of his discharge and had not yet completed his training. It was not shown that the employee repeated any specific error after having been counseled about it by the employer, nor was it demonstrated that he deliberately disregarded the employer's standards. To the contrary, the employee testified that he took the job seriously and performed to the best of his ability. The employee's supervisor indicated he felt the employee simply lacked the capability of becoming a journeyman machinist.

It does not appear that the employee was a good fit for the job. However, unsatisfactory job performance, while a reasonable basis for the dismissal of an employee, does not constitute misconduct for unemployment compensation purposes unless there is some evidence that the employee acted with deliberate disregard for the standards the employer expected of him or, in the alternative, with a very high degree of negligence. Lazarus v. Aurora Health Care Inc. (LIRC, Jan. 8, 1997). Where, as here, the employee attempted to do the job, but failed to meet the employer's standards because of inability or due to isolated acts of ordinary negligence, the commission does not believe his discharge was for actions on his part which amounted to misconduct connected with his employment.

The commission, therefore, finds that in week 25 of 2003, the employee was discharged and not for misconduct connected with his employment, 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 25 of 2003, provided he is otherwise qualified. The employee is not required to repay the sum of $1,214 to the Unemployment Reserve Fund.

Dated and mailed May 4, 2004
smithir . urr : 164 : 1 MC 660.01  MC 664 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did confer with the administrative law judge who presided over the hearing to obtain his impressions of the credibility of the witnesses. The administrative law judge indicated that the employee's admission that he failed to refer to the plans on his last day of work led him to doubt the credibility of the employee's testimony that he was performing the job to the best of his ability. However, the employee explained that he had run a similar part before and believed he already understood what he was supposed to do. While the employee could be considered negligent in failing to check the plans, in spite of his belief that he already understood what to do, the commission does not believe this incident calls into question the credibility of his testimony that he attempted to perform the job to the best of his abilities.

cc: Attorney Gene A. Holt


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