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

AIMEE A ANDERSON, Employee

CHIBARDUN TELEPHONE COOP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04200916EC


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 two and a half years as a customer service representative for the employer, a telephone company. Her last day of work was March 1, 2004. She was discharged on March 3, 2004 (week 10).

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

The employer had a dress code that prohibited the wearing of piercing ornamentation except for earrings. Although the employee was aware of the policy, she wore a tongue ring at work on two occasions. She was reprimanded. In January of 2003, during a performance review the employee was told to comply with handbook and other policies and instructions. In August of 2003, the commercial manager spoke to the employee about her work performance. The manager stated that the employee's resistance to accepting direction was a roadblock to her advancement. In a performance review in January of 2004, the employee was told to improve her attitude and eliminate wasted time.

The employer had a policy that prohibited workers from using company computers for personal use. The employee was aware of the policy. She was taking a class at a school. On February 9 and 11 of 2004, she created documents on the company computer that were her school assignments. She waited to see if the employer discovered that she had done so. When nothing was said, she continued to do her homework on the company computer. She did so on several occasions from February 19 to March 1, 2004. Other workers were aware that the employee was doing her homework on company time and using company equipment. When the employer discovered the employee's actions, the commercial manager and the supervisor questioned the employee. The employee admitted she knew what she did was wrong, she knew she would get caught, and she had no excuse except for poor judgment. The employer decided to suspend the employee's employment without pay from March 1, 2004 to March 2, 2004.

The employee was discharged the following Monday based on her response to her suspension. The employer noted that after the meeting, "Aimee left the room and proceeded to gather her things while chatting and laughing w/her replacement in the office, Sue Kirkham."

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 had already determined that the employee's violation of its policy would result in the suspension of her employment. The commission has consistently held that the employer has to show that the employee engaged in some other act of misconduct, after a written warning or other disciplinary action has been imposed, in order to prove that the employee was discharged for misconduct. See, e.g., Jackson v. Ultra Mart Foods, Inc., (LIRC Dec. 4, 2003); Hefti v. Wal-Mart Associates, Inc., (LIRC May 19, 2003); Bebo v. Schindler Elevator Corp., (LIRC April 11, 2003); Rash v. Maynard Steel Casing Co., (LIRC Dec. 5, 2000); and Pierce v. The Kelch Corp., (LIRC May 31, 2000).

The employer found the employee's demeanor after the meeting to indicate a lack of remorse. However, the commission cannot find that the employee's actions after the meeting demonstrated a wilful and substantial disregard of the employer's interests. The employer made a valid business decision to discharge the employee, but did not establish that the employee's actions/attitude after the suspension was imposed rose to the level of misconduct connected with her work.

The commission therefore finds that in week 10 of 2004, the employee was discharged but 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 10 of 2004, if she is otherwise qualified. There is no overpayment as a result of this decision. The initial benefit computation is not set aside.

Dated and mailed November 12, 2004
anderai . urr : 132 : 1 : MC 690 MC 699.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 


NOTE: The commission did not consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The commission has not reversed the ALJ based on credibility. The commission finds the employer failed to establish that the employee engaged in misconduct following the suspension of her employment for inappropriate use of the employer's computer.

 


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