STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
TINA M GRILL, Employee
CARDINAL GLASS INDUSTRIES INC, Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03202572EC
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 as of week 49 of 2003 and thereafter, if she is
otherwise qualified.
Dated and mailed June 30, 2004
grillti . usd : 135 : 3
MC 696
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
MEMORANDUM OPINION
The employer cites John P. Keena v. Trek Bicycle Corporation, UI Hearing
No. 99002806JV, (LIRC November 12, 1999), in support of its argument that the
appeal tribunal decision should be reversed. In Keena v. Trek Bicycle, the employer
had in place a similar work rule prohibiting the use of tobacco products on company
property. However in that case, the employer's work rules specifically warned its
employees that the use of tobacco products on company property would result in
immediate dismissal. Here, the employer admits that its work rule does not warn its
employees what discipline will occur as a result of violating its no smoke policy.
However, the employer argues that it is its practice to immediately discharge an
employee for violating its no smoke policy and work rule. However, the record
supports the ALJ's finding that no precedent existed which would have put the
employee on notice as to the consequences of smoking on the employer's premises in
violation of the employer's work rule. While it was clearly improper for the employee
to have violated the employer's work rule, especially a rule she was put on clear
notice of, in this instance the employee's violation of the rule was more a matter of
unsatisfactory conduct rather than a wilful, intentional and substantial disregard of
the employer's interests or of the standards of conduct which the employer had a
right to expect of the employee. Because this case is distinguishable from John P.
Keena v. Trek Bicycle Corporation, for the reasons discussed above, the commission
reaches a different legal conclusion finding that the employee's discharge was not for
misconduct within the meaning of the law.
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