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

CHARLES R REED, Employee

WESTAFF (USA) INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04611471MW


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 periodically over a thirteen-month period for clients of the employer, a temporary help agency. His last assignment was for approximately nine and one-half months. His last day of work was October 13, 2004 (week 42), when he was discharged.

The issue to be decided is whether the employee's actions, which led to his discharge by the employer, constitute misconduct connected with his employment.

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."

On his last day of work, the employer informed the employee that it had been told that the employee had been caught sleeping on the job by the client. The employee was then discharged.

The employee agreed he had been caught sleeping on the job, but that the incident had occurred two weeks earlier. He alleged that he discussed the matter with the client's supervisor and agreed to make changes to his behavior so that he would not be so tired again. He alleged that he made those changes and continued to work for two weeks before the employer decided to discharge him.

The employer's witness testified that the employee admitted to her that he had been sleeping in the restroom on October 13.

The evidence in the record establishes that the employee did fall asleep briefly while at work. However, sleeping is not misconduct, under the facts in this case. See Henderson v. Polaris Industries Inc. UI Dec. No. 98201981EC (LIRC April 29, 1999). The only evidence about the circumstances of the incident were presented by the employee. He testified he fell asleep because he had gone to a church service that morning. He thought he may have been sleeping for 15 minutes when the supervisor tapped him on the shoulder. There is nothing to suggest that the employee intended to fall asleep. The employer did not present any testimony to establish that the employee had gone to an out of the way location to sleep without being seen, or that he had gone somewhere comfortable to lay down and sleep. There is nothing to suggest that the employee was sleeping longer than 15 minutes. The employer did not allege that the employee had been caught sleeping in the past or had been warned about sleeping. While the employee's actions may have been negligent, they were not so negligent as to amount to misconduct connected with his work.

The commission therefore finds that in week 42 of 2004, the employee was discharged but that his discharge was not for misconduct connected with his 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 42 of 2004, if otherwise qualified.

Dated and mailed May 11, 2005
reedch . urr : 145 : 1 MC 659.02

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing but reverses his decision as a matter of law.

 

cc: Westaff (USA), Inc. (Milwaukee, Wisconsin)


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2005/05/16