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


MICHAEL G BROWNE, Employe

STRATTON COLLEGE, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96004388MD


On August 27, 1996, the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) issued an initial determination in the above-captioned matter which held that in week 33 of 1996 the employe quit his employment and not for a reason which would allow the payment of benefits. As a result, benefits were denied. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On October 4, 1996, the appeal tribunal issued a decision which modified and affirmed the appeal tribunal decision to find that the employe was discharged and that the discharge was for misconduct connected with his employment. As a result, benefits were denied. The employe filed a timely petition for commission review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a junior college, for approximately eight years as an educational consultant. His last day of work was August 13, 1996 (week 33).

In addition to his work for the employer, the employe had his own business operating a food concession at fairs. The employer had agreed that the employe would be able to use earned vacation time in order to operate his stand at certain fairs and, most recently, the employer had approved the employe's missing work on August 29 and 30 in order to attend the Walworth County Fair.

On or about August 5, 1996, the employe made a remark to a prospective student which the student construed as being racially charged. The employer learned about the incident on the same day it occurred and responded by sending the employe home for the remainder of the day. Subsequently, on or about August 12, the employer notified the employe that, as disciplinary action for his conduct on August 5, he would not be permitted to take any of his preapproved vacation time until after the fall term ended in mid-October. The employe responded that he could not be at work on August 29 and 30, the dates on which he planned to operate his concession stand at the Walworth County Fair. The employer then told the employe that it had no alternative but to terminate his employment.

The first issue to decide is whether the employe quit or was discharged.

At the hearing the employer contended that the employe quit. However, it is clear from the record that the employe had no intention of quitting his job and that the separation occurred at the employer's behest. The employer's witness testified that he told the employe he had no alternative but to terminate his employment, and no competent evidence was presented to establish that the employe was given the option of remaining employed. Under the circumstances, the commission concludes that the employe was discharged by the employer.

The next question to decide is whether the employe was discharged for misconduct.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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' within the meaning of the statute."

The appeal tribunal found that the employe engaged in misconduct, reasoning that his refusal to accept the discipline imposed by the employer or to attempt to work out another solution amounted to insubordination. The commission disagrees. Not every failure to acquiesce completely in an employer's wishes constitutes insubordination, and the facts presented in this case do not lead the commission to conclude that the employe was insubordinate. While the employer clearly had the right to discipline the employe for his actions in making an inappropriate comment to a student, its decision to deprive the employe of pre-approved vacation days, which the employe had already earned and which the employer knew he required in order to run his concession business, was unreasonable. The employer presented no explanation as to why it could not have suspended the employe on days other than his preapproved vacation days or imposed some other means of discipline, and it appears to the commission that the employer's decision to deny the employe his earned vacation time was vindictive and designed to force an employment separation. Under these circumstances, the commission believes that the employe's actions in notifying the employer that he could not work for it on the days in question were reasonable and did not amount to misconduct.

The commission, therefore, finds that in week 33 of 1996 the employe was discharged and not for misconduct connected with his employment, within the meaning of section 108.04 (5), Stats.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 33 of 1996, provided he is otherwise qualified.

Dated and mailed November 29, 1996
brownmi.urr : 164 : 1 MC 626 MC 640.01

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

NOTE: The commission's decision to reverse the appeal tribunal decision did not involve an assessment of the credibility of the witnesses in this case. The commission does not reverse any credibility determination made by the appeal tribunal but, for the reasons set forth in this decision, differs with the appeal tribunal as to the interpretation and application of the law under essentially the same set of facts as that found by the appeal tribunal.

cc: STRATTON COLLEGE
ATTORNEY ROBERT RONDINI


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