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

CHARLES T KALMON, Employee

HUTT ELECTRIC SUPPLY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04200336EC


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 about five years, most recently as an outside sales representative, for the employer, a wholesale electrical supply business. His last day of work was January 15, 2004 (week 3), when he was discharged.

The issue to be decided is whether the employee's discharge was for misconduct connected with his employment.

During a performance review on December 5, 2003, the owner of the employer business told the employee to increase his sales, follow policies and procedures, and improve relations with other workers. The owner asked the employee whether he was working a second job at a hardware store. The employee admitted that he had accepted work at the store. The store was a customer of the employer. The owner told the employee that it was a conflict of interest for the employee to work for a customer. He told the employee that a specific policy prohibiting such conflicts would be written and included in the company handbook. The employee stated that he did not feel that working for a customer created any problems. The owner disagreed and said that the new policy would be in effect by January 4, 2004.

The employer revised the company handbook and created a written policy that prohibited workers from employment with competitors, customers, or suppliers of the employer. On January 10, 2004, the owner again spoke with the employee. The employee stated that he would not be quitting his employment at the hardware store until sometime in the future. The employee signed an acknowledgement that he received the revised handbook on January 12, 2004. On the last day of work, the owner told the employee that his employment was terminated for lack of sales, outside employment that conflicted with company policy, and internal performance issues.

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 employer's main reason for discharging the employee was the employee's performance. The employer testified that based on the employee's poor performance it probably would not have kept him on whether he retained the outside job or not. The employee received no formal discipline due to performance related problems, although the issue was raised with the employee, particularly during performance evaluations. The performance problems included inadequate sales, relationships with co-workers, not following policy and poor work quality. The employer gave few specifics about the employee's failures. The employer alleged that the employee did not correctly process returns, but there was no detailed testimony about when this occurred and what he was failing to do. The employer maintained that the employee was not maintaining day trip sheets but acknowledged that the employee had ceased doing so about a year earlier. The assertion that the employee was not getting along with co-workers was based on reports of co-workers who did not appear at the hearing.

The employer had no conflict of interest policy when the employee began his outside job. The commission does not find that the employer's belief that there might have been a "perception problem" was sufficient to establish that a conflict of interest existed that justified the employer's attempt to control the employee's off-duty activities. The employer did not establish a connection between the employee's other employment and decline in performance. Finally, the employee was not specifically warned on his last day of work that if he did not quit his other job his work for the employer would end.

The commission therefore finds that in week 3 of 2003, the employee was discharged and not for misconduct connected with his 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 3 of 2004, if he is otherwise qualified.

Dated and mailed October 14, 2004
kalmoch . urr : 132 : 1 :  MC 618

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The ALJ indicated that the employee came across as pushy and the employer as less than adept at dealing with the employee. For reasons set forth above, the commission concludes that the employee's conduct did not rise to the level of misconduct connected with his work.



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


uploaded 2004/11/03