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

TERI R GRACEFFA, Employee

MOUNT PLEASANT RENAISSANCE SCHOOL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04604906RC


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 approximately three months as an assistant teacher for the employer, a childcare business. Her last day of work was April 8, 2004 (week 15), when the employer discharged her.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

On April 8, 2004 (week 15), the employee and a teacher were in charge of seven children between the ages of one and two years old. At about 10:45 a.m. the teacher and the employee decided to round up the children to bring them inside. The employee had six of the children by the door and the teacher was trying to round up a little girl. A little boy left the line and went by the teacher. At this point, the employee brought five of the seven children inside to get their coats off and hands washed and get them ready for lunch. The employee decided that the teacher could bring in the two children who were outside. The boy crawled underneath a hole on the employer's property before the teacher was able to bring him inside. The employee was not aware that there was a hole under the fence.

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 argued that her discharge was not for misconduct connected with her work. The commission agrees. The employee originally had six children and the teacher was chasing one child. While the employee was standing in line, another child ran toward the teacher. The employee's decision to take the other five indoors was reasonable given the ages of the children and the fact that it was unlikely that the children would have remained standing in line for very long. When the employee took the five children inside, she knew the teacher was attempting to round up the other two children. The employee did not know that there was a potential that one of the children would have the opportunity to crawl under a fence. Further, given that there was a hole under the fence, the child could have crawled under the fence even if the employee had been outside. If the employee and teacher were able to care for seven children while they were outside, it was not unreasonable for the employee to expect that the teacher would be able to handle two. Further, the employer never specifically indicated what kind of aid the employee could have been expected to render had she stayed outside. As such, the commission concludes that her actions at most amounted to an isolated instance of poor judgement and did not rise to the level of misconduct connected with her work.

The commission therefore finds that in week 15 of 2004, the employee was discharged, but that her discharge was not for misconduct connected with her work for the employer, 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 15 of 2004, if otherwise qualified.

Dated and mailed September 10, 2004
gracete . urr : 145 : 2 MC 689  MC 675

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. The ALJ indicated he thought the employee was a credible witness in general, and believed her when she testified she was not aware that there was a hole under the employer's fence. The ALJ determined, based on her demeanor and actions at the hearing, that the employee was somewhat negligent in her responsibilities. The ALJ indicated that the employee brought her young daughter to the hearing and took no steps to control the child's behavior, even when such control might have been warranted. The commission carefully considered the ALJ's demeanor impressions. However, given the facts of this case, the commission could not conclude that the employee was negligent in taking the five children inside on her last day of work.


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


uploaded 2004/09/13