DONNA L DYER, Employee
PLATINUM DISC CORP, Employer
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, and after consultation with the ALJ, the commission makes the following:
The employee worked for seven weeks as a second shift production laborer for the employer, a DVD/CD manufacturer and packager. She was discharged on March 5, 2004 (week 10) for allegedly reporting to work under the influence of alcohol two days earlier. Following the discharge, the employee initiated a claim for unemployment insurance benefits.
Wis. Stat. § 108.04(5) provides that a worker who is discharged for misconduct connected with the employment is not eligible immediately for unemployment insurance benefits. Misconduct connected with the employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab v. Neubeck and Industrial Comm., 237 Wis. 249 (1941).
Thus, the issue to be decided is whether the employee's discharge was for misconduct connected with her employment.
The employer's rules provide that a worker who reports to work under the influence of alcohol is subject to immediate termination. The employee admitted drinking three to eight servings of alcohol on the evening of March 2, 2004. She stopped drinking at least 11 hours before her 2:30 p.m. shift start time. She did not shower, change her clothes or brush her teeth before reporting to work. When she reported to work, her productivity was lower than normal. Based upon her productivity, appearance and odor, the employer's management believed the employee was impaired by alcohol. The human resource manager confronted the employee. The employee explained her actions the prior evening, stating that she had made a "big mistake." The employee was not asked to take a blood alcohol test but was sent home pending resolution of the matter. On March 5, 2004 (week 10), the employee was discharged by telephone.
The employer contended that the employee was discharged for misconduct connected with the employment. The commission disagrees, concluding that the employer failed to establish that the employee reported to work under the influence of alcohol. In Shedd v. Interstate Blood Bank Inc., UI Dec. Hearing No. 03606437MW (LIRC March 26, 2004), the commission held that absent corroborating evidence, the smell of alcohol on the breath, job performance failures and talkativeness was not sufficient as a matter of law to establish that the employee was intoxicated while at work. Similarly, in this case, while the employee conceded that her condition might have raised suspicions regarding impairment, she denied reporting to work under the influence of alcohol and, given the time that had elapsed since her last drink, the commission finds that the employer has not met its burden to establish such impairment. Under these circumstances, the employee exhibited poor judgement in reporting to work without showering, changing her clothes or brushing her teeth but her actions did not constitute misconduct connected with the employment.
The commission therefore finds that the employee's discharge in week 10 of 2004 was not for misconduct connected with the employee's work, within the meaning of Wis. Stat. § 108.04(5).
The appeal tribunal decision is reversed. Accordingly, the employee is eligible for
benefits as of week 10 of 2004, if otherwise qualified.
Dated and mailed September 17, 2004
dyerdon . urr : 150 : 1 MC 653.1
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
NOTE: The commission conferred with the administrative law judge regarding her credibility impressions. The administrative law judge indicated that witness credibility did not factor into her decision. Instead, she based her decision upon her belief that the evidence was sufficient that the employee was impaired while at work. The commission respectfully disagrees for the reasons stated above.
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uploaded 2004/09/27