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

WILLIAM M GRADL, Employee

ARGUS TECHNICAL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05602767MW


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 as a shipping clerk for about ten days for the employer. His last day of work was September 18, 2003 (week 38).

The employee notified the employer prior to the start of his shift on September 19 that he could not report for work because he had to go to the police department to provide information for an ongoing investigation. He was asked to provide the information outside of working hours and was warned that if he did not report for work, he would be without a job. Nonetheless, his chose to absent himself from work on September 19 in order to go to the local police department and provide information for an investigation.

The issue presented is whether the employee quit or was discharged and whether he is eligible for benefits based upon his separation from employment.

The employee's actions in contacting his employer to provide notice that he would be absent from work was not conduct inconsistent with an intent to maintain his employment. The employer made the decision that if the employee was absent it would no longer employ him. The employer discharged the employee because of his absence.

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 believed the employee could file a police report outside of work hours. However, even if true, the employee's decision to obey a directive given to him by the police was not conduct demonstrating willful disregard for the employer's interests. The commission does not find the employee's one absence with notice, even if one considers that the absence could have been prevented, to rise to the level of misconduct connected with the employee's employment.

The commission therefore finds that in week 38 of 2003, the employee was discharged but not for misconduct connected with his work for the employer 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 38 of 2003, if he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed July 15, 2005
gradlwi . urr : 132 : 1 : MC 626  MC 605.09

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

 

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The commission accepts the fact found by the ALJ but reaches a different legal conclusion based on those facts.

 


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uploaded 2005/07/18