JEROME WASH, Employee

EMMPAK FOODS INC, Employer
c/o UC EXPRESS

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 one year as a laborer for the employer, a meat processing business. He was discharged on October 28, 2004 (week 44).

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

After the employee punched in for work at 2:45 p.m. on October 22, he asked his supervisor for his paycheck. His supervisor told the employee that he smelled alcohol on his breath. The employee admitted to his supervisor that he had consumed alcohol earlier in the day at a funeral.

The employee immediately exited the plant building without punching out. The employee's supervisor followed him out to the parking lot and told the employee, who was already driving his car out of the lot, to park his car and come back inside the building because he wanted to talk to him.

The employee told his supervisor that he didn't feel good and wanted to go home. The supervisor repeated that he wanted the employee to get out of his car and come back inside the building. The employee agreed to do so but instead, when the supervisor stepped back from the car, stepped on the accelerator and drove away.

The record supports a conclusion that the employee engaged in misconduct.

The employee, while punched in and on work/pay status, left the work site without punching out after his supervisor told him he smelled alcohol on his breath, violated a supervisory directive to return to the work site, and then pretended to agree to return but fled the parking lot when his supervisor stepped away from his car. See, e.g., Casper v. Brakebush Brothers, UI Hearing No. 02006072BO (LIRC April 4, 2003) (employee's insubordinate refusal to go to her second-level supervisor's office when instructed to do so by her supervisor was misconduct); Depeau v. Moore North America Inc., UI Hearing No. 99400659GB (LIRC Sept. 23, 1999) (employee's refusal to comply with the employer's reasonable request that he report to the human resources office was misconduct).

The commission therefore concludes that the employee was discharged in week 44 of 2004 for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $4,123.00 for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1),and that the employee is required, pursuant to Wis. Stat. § 108.22(8)(a), to repay this amount to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because, although the overpayment did not result from the fault of the employee, within the meaning of Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See Wis. Stat. § 108.22(8)(c).

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 44 of 2004, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $4,123.00 to the Unemployment Reserve Fund.

The valid new claim dated October 27, 2004, is hereby set aside.

Dated and mailed March 18, 2005
washjer . urr : 115 : 2  MC 658 MC 640.03

/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 conclusion as to what the hearing record in fact established, and upon a differing interpretation of the relevant law.

 

cc: Emmpak Foods Inc., Milwaukee, WI

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uploaded 2005/03/25