WARREN K De BAY, Employee

E-Z ROLLOFF LLC, Employer

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 for about a year and a half as a driver and manager for the employer, a dumpster service. His last day of work was on or about January 20, 2005 (week 4), when he terminated his employment.

During the latter part of his employment, the employer was dissatisfied with the work the employee did as manager of its operation. It had received customer complaints concerning billing errors which were not properly resolved, and it had reason to believe that the employee was not maintaining proper records of the employer's operation. For this reason, it reduced the employee's pay from $16.50 per hour to $11.25 per hour and removed from him his management responsibilities. He was to be simply a driver for the employer. When the employee was informed, on about January 15, that he needed to take a $4.25 per hour pay reduction, he stated that he found it difficult to work with one of the owners, and suggested he might quit. The employer informed him not to make any rash decisions and to take some time to think the matter over. The employee took five days off and thought about the matter. He returned, but before he made any statements with respect to whether he had decided to quit, he was informed that the owner he did not get along with did not want him back and that she owned 51 percent of the company. The employee said he guessed his employment had been terminated and the employer made no response.

The commission concludes that the employer discharged the employee. The employee wanted to discuss possible resignation with the employer on January 15, after learning of the very substantial pay cut. The employer did not allow the employee to pursue that subject, and told the employee not to make a rash decision and to think the matter over. The employee returned on January 20 to discuss the matter with the employer and was told that the majority owner did not want him back. The employee told the employer that he was discharged and the employer never asserted that it considered him to have quit. As such, the commission concludes that the employee did not quit, but was discharged.

A further issue that must be determined is whether the employee's discharge was for misconduct connected with his work.

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 alleged that the employee had performance problems. The employer alleged that there were sometimes problems with customers. However, the employer failed to present any firsthand evidence to establish that there were customer problems. The employer had instructed the employee to write a letter to send to a customer who had filed bankruptcy. The employee was under the incorrect impression that he was being asked to sign the letter as well, and was concerned because he believed that sending the bill might be illegal because of the bankruptcy. The employee was not intentionally disregarding the employer's interests. It was the employee's opinion that he was protecting the employer's interests by ensuring that the employer took appropriate action to collect a bill. The employer also complained about the employee's failure to properly complete paperwork and his failure to return employer paperwork in a reasonable time frame. It was not established that the performance problems were caused by an intentional failure to correctly perform his work. As such, the employee's actions, for which he was discharged, did not demonstrate such a willful and intentional disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 4 of 2005, 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).

The decision of the administrative law judge is modified and as modified is affirmed. Accordingly, the employee is eligible for benefits beginning in week 4 of 2005, if otherwise qualified.

Dated and mailed July 28, 2005
debaywa . urr : 145 : 4  VL 1007.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission modified his decision because it reached a different conclusion with respect to whether the employee quit or was discharged based on the facts adduced at the hearing.

cc:
Attorney Jennifer A. Stuber
Attorney Patrick H. Finlan

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uploaded 2005/08/01