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

BARTLEY J DOHERTY, Employee

PLYMOUTH LUBRICATION INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04605049MW


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 five months as a sales associate for the employer, a wholesale oil distributor. His last day of work was April 21, 2004 (week 17), when the employer discharged him.

The issue is whether the actions for which the employee was discharged constitute misconduct connected with his employment.

The employee worked from his home, and typically worked Monday through Friday between the hours of 7:00 a.m. and 5:30 p.m.

The employee was counseled in January or February of 2004 that he was to use his employer-issued cell phone for business calls only.

After this counseling, the employee continued to use his employer-issued cell phone for personal calls. When the employer discovered this, it discharged the employee.

The commission has been consistent in holding, except in those cases in which the alleged conduct is sufficiently egregious, that, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that his job is in jeopardy or will be if he engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979); Muñoz v. LaCosta, Inc., UI Hearing No. 02607640MW (LIRC April 4, 2003). Here, the employer failed to show that the employee was ever advised what the consequence would be if he continued to use his employer-issued cell phone to make personal calls.

The remaining question, then, is whether the subject conduct was sufficiently egregious to relieve the employer of its responsibility to make the employee aware that his job would be in jeopardy if he continued to engage in it. The conduct at issue here does not rise to the level the commission has generally held would satisfy this standard. See, Gray v. Walgreen Co. Illinois, UI Hearing No. 99002303MD (LIRC Nov. 12, 1999)(employee engaged in misconduct when, during a single shift, employee was tardy, refused several times to acknowledge or carry out supervisor's direct order, was rude to a customer, and left work without permission); Casper v. Brakebush Brothers, Inc., UI Hearing No. 02006072BO (LIRC April 4, 2003)(employee engaged in misconduct when refused to carry out supervisor's direct order to complete work task, and then refused second level supervisor's direct order to come to his office); Musial v. Algoma Lumber Co., UI Hearing No. 99402149GB (LIRC Feb. 24, 2000)(employee engaged in misconduct when told sexually offensive joke to customer, repeatedly failed to follow supervisor's instructions on appropriate method for completing work task, and lied to supervisor); Cook v. Goodyear Tire and Rubber Co., UI Hearing No. 02001841MD (LIRC Aug. 8, 2002)(employee engaged in misconduct when repeatedly refused to carry out work assignment). The facts here are somewhat parallel to those in Koester v. Christensen Heating & Air Conditioning, Inc., UI Hearing No. 02401291AP (LIRC Dec. 4, 2002), where the commission found misconduct when the employee continued to use his employer-provided telephone for personal purposes despite two prior warnings. The difference, however, is that, in Koester, as a part of the second warning, the employee was told that his employment would be in jeopardy if he continued to engage in this conduct. See, also, Andjelic v. Metro Milwaukee Auto Auction, UI Hearing No. 02611061MW (LIRC Sept. 19, 2003); Ward v. Diamond Detective Agency, Inc., UI Hearing No. 03604533MW (LIRC Nov. 5, 2003).

The commission concludes that, in week 17 of 2004, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat. § 108.04(7)(a); but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 17 of 2004, if otherwise qualified.

Dated and mailed February 25, 2005
doherba . urr : 115 : 1   MC 690  MC 696

/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 his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing interpretation of the relevant law.

 

cc: Plymouth Lubrication, Inc. (Plymouth, Wisconsin)


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