JESSE E MERFELD, Employee

CAPITOL FORD SALES INC, 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, the commission makes the following:

The employee worked approximately nine months as an auto repair technician for the employer, an automobile dealership. The employee's last day of work was December 10, 2003 (week 50), when he was discharged.

Prior to working for the employer, the employee had worked for approximately one year as an automobile repair technician elsewhere. Toward the end of the employee's employment with the employer, the employee made several serious errors in repair work. He was discharged for too many "comebacks" according to the employer. The employee had had a death in his family and appeared to be preoccupied with personal concerns. At one point the service manager offered the employee an opportunity to take a leave of absence but the employee declined.

What follows is a series of the employee's errors. Sometime in late October or early November 2003, the employee while repairing a diesel truck, put in its oil pump backwards so there was no oil pressure. When the employee test drove the vehicle without any oil pressure he damaged the engine which had to be rehauled. The cost to repair the vehicle was $633 and that amount was taken out of the employee's paycheck. In his defense, the employee believed he had grabbed the oil pump correctly and installed it the right way. The employee explained since an oil pump will fit in perfectly both ways a mechanic can end up putting one in backwards, like he did. The employee had done this type of work before and could not recall if he was in a hurry that day.

The incident that resulted in the employee's final warning occurred when the employee mistimed an engine while replacing a cylinder head. The employer had insurance that covered the cost of having to replace the engine, minus a $1,000 deductible. The employer testified it cost approximately $4,500 to replace the engine. Because this was only the second vehicle the employee had done this type of work on, the employee had to review repair books so he knew what tools to use. The employee also had another technician check his work and that technician thought the employee had done the repair correctly. As a result of this error, the employee received a final written warning. The warning placed the employee on a 30-day probation for poor work quality and warned the employee that any further issues with work quality would result in termination.

In early December 2003 the employee improperly installed a part in a vehicle by improperly positioning some washers. Another technician had to redo the job resulting in additional costs to the employer. Although the employee had done similar work on other vehicles, the employee had never done this type of repair work before on a Chevy Blazer.

The employee's final incident occurred when the employee was performing some brake work on a vehicle. The employer contends that the employee lied to the service advisor when he asked the employee if he had "resurfaced the rotors on the vehicle" to which the employee replied he had. The service advisor checked on the job and noticed that the rotors were not resurfaced. The employee's supervisor then confronted the employee about resurfacing the rotors. The employee did not realize the extent of the repair until he actually started doing the job.

The issue for review is whether the employee's discharge was for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5). 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 discharged the employee because he had too many "shop comebacks" which compromised the employer's relationship with its customers. The employee was not a good fit for the job because of his repeated unsatisfactory work performance, despite warning. However, unsatisfactory job performance, while a reasonable basis for the dismissal of an employee, does not constitute misconduct for unemployment compensation purposes unless there is some evidence that the employee acted with deliberate disregard for the standards the employer expected of him or, in the alternative, with a very high degree of negligence. See Ira D. Smith v. Monarch Corp., UI Hearing No. 03606737MW (LIRC May 4, 2004); Lazarus v. Aurora Health Care Inc., (LIRC January 8, 1997). Here, the commission is satisfied that the employee attempted to do his job but failed to meet the employer's standards because of his inability to satisfactorily work as an auto repair technician for the employer. The commission therefore does not believe the employee's discharge was for actions on his part which amounted to misconduct connected with his employment.

The commission therefore finds that in week 50 of 2003, the employee was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 50 of 2003, provided he is otherwise qualified. The employee is not required to repay the sum of $1,482.00 to the Unemployment Reserve Fund.

Dated and mailed November 12, 2004
merfeje . urr : 135 : 8  MC 664

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before reversing her decision, because its reversal was not based upon a differing view as to the facts but instead upon a different interpretation of the relevant law. The employee was incompetent as an auto technician for the employer. The employee's inability however does not constitute misconduct within the meaning of the law for the reasons found in the commission decision.

cc: Capitol Ford Sales, Inc. - Madison, WI

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uploaded 2004/11/16