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

CHADWICK S TOMPKINS, Employee

DIERK WAUKESHA, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03006228WK


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 as a warehouse order selector from June of 2001 for the employer, a food distributor. His last day of work was April 30, 2003, (week 18).

The issue to be resolved is whether the employee voluntarily terminated his employment or was discharged by the employer.

After the employee's last day, he was next scheduled to report for work on May 1. However, he called in sick to the employer. He was next scheduled to report for work on May 4 and 5, but the employer received a message from the employee's girlfriend indicating that he was sick. On May 6, the employee's girlfriend notified the employer that the employee was in jail and she did not know when he would be released. Subsequently, the employer had no further contact with the employee until the week of June 3, 2003, (week 23), when he was released from jail. At that time, he contacted the employer to request permission to return to work. After interviewing him, the employer notified him that he had been replaced and they had no further work for him.

The employee explained that he was arrested on May 2. He had his girlfriend contact the employer and tell it he was sick. He believed he would soon be released so he saw no reason to inform his employer that he was in jail. He was incarcerated because his probation had been revoked for a new charge. He was charged with disorderly conduct and resisting arrest. The employee was not on probation when he began working for the employer but was placed on probation in March of 2002. He served 30 days in jail as a condition of probation but had Huber release privileges so that he could work. He was on probation for a conviction for bail jumping, disorderly conduct and criminal damage. On May 2, 2003, he got into an argument with some police officers. He and his friend were arrested for being too loud and he was charged with disorderly conduct.

The employee did not intend to quit his employment with the employer. The employee attempted to get Huber privileges right away. He asked his girlfriend to contact his probation officer. He spoke to his probation officer and wrote to a judge in order to get work release privileges. However, he was not given work release privileges for some time, but he contacted the employer as soon as he was able to return to work. The employer refused to allow the employee to return to work. As such, the employee did not quit but was discharged by the employer.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 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 employee, 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 employee'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' with in the meaning of the statute."

The employee was familiar with the employer's disciplinary policy and knew he could have only six absences per year. The employee was on probation and on May 2, 2003, engaged in an argument with a police officer that resulted in a charge for disorderly conduct. The employee engaged in actions which he was aware might lead to his arrest and the revocation of his probation. The employee's actions in engaging in behavior that resulted in his absence from work for a significant period of time demonstrated such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 23 of 2003 the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for weeks 33 through 52 of 2003 and 1 through 5 of 2004, amounting to a total of $7,839.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 23 of 2003 and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $7,839.00 to the Unemployment Reserve Fund. The benefits paid for weeks 32 and 33 of 2003 were withheld as forfeitures. Since the claimant is not eligible for benefits in these weeks the benefits cannot be used as forfeitures. The sum of $429.00 will be restored to the forfeiture balance.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed July 13, 2004
tompkic . urr : 145 : 1 MC 605.091

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. However, the commission did not reverse the ALJ based on a different view of the credibility of the witnesses. Rather, the commission reached a different legal conclusion when applying the law to the facts.


Appealed to Circuit Court.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2004/07/19