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

NADINE A LARSON, Employee

OAK RIDGE CARE CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04002330BD


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 consultaion with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for over two and a half years as a certified nursing assistant for a long-term care facility. Her last day of work was March 23, 2004, when the employer discharged her (week 13).

The employer's dietary manager saw the employee sitting in the living room of the employer's facility. She asked the employee if she was on break. The employee responded that she was not. The manager suggested that the employee visit with the residents. The employee got up, waved her arms and sarcastically said "[d]oes anyone want to visit with me?" When the manager returned to the living room again a few minutes later, the employee was again sitting in the living room. When she was later confronted by the employer, she indicated that she was resting after using her inhaler. The employee was discharged for this incident taken together with prior disciplinary warnings she had received.

The employee had received three prior written disciplinary warnings for unrelated work issues. The employee was discharged based on her entire record rather than solely because of the last incident. The employer indicated that the employee likely would have received a verbal warning for the final incident had she no disciplinary history. Finally, the employee's supervisor's believed the employee was sitting in the living room because she was resting after using her inhaler but faulted the employee for not telling the dietary manager that at the time.

The undisputed account of the last incident shows that the employee was rude to the dietary manager and discounted what she said. The employee's conduct was sarcastic but it was not egregious. Given the ambiguity of the dietary manager's authority over her, it is less serious than an act of direct insubordination. The employee never actually refused a direct instruction.

The details regarding the prior incidents were not proved with non-hearsay evidence which would permit the commission to evaluate their seriousness. However, the other warnings were not all for similar conduct which would have placed the employee on clear notice of the employer's expectations in this instance.

The employee was rude when a supervisor invited her to visit with residents. However, she was not abusive to the residents themselves. Given the different nature of the warnings, the employee was not on clear notice that this conduct would place her job in jeopardy. In addition, the employee was sitting in the day room after using her inhaler and therefore the conduct of sitting during working hours is excused.

The commission therefore finds that in week 13 of 2004, the employee was discharged from her employment but not for misconduct connected with her work 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 13 of 2004 if she is otherwise qualified.

Dated and mailed December 29, 2004
larsona . urr : 178 : 4  MC 640.06

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission consulted with the Administrative law judge prior to reversing to learn his demeanor and credibility impressions. Since the employee did not appear at the hearing, the ALJ did not have any adverse credibility impressions of her. However, he did object to her failure to appear at the hearing and explain her conduct. The commission recognizes the desirability of an account from the employee in a misconduct case. However, it remains the employer's burden to establish misconduct. In this case, the commission believes that the employer failed to demonstrate that the employee's conduct on her last day of work rose to the level of a deliberate and substantial disregard of the employer's interests.

 

cc: Hope Health & Rehabilitation Center


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