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


ARLETHA R HOLM, Employe

EMBASSY SUITE HOTEL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97607637MW


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about 14 months as a housekeeping inspector for the employer, a hotel. The employe's last day of work was November 6, 1997 (week 45), when she was discharged.

The employer discharged the employe for poor performance in inspecting the hotel rooms.

The issue to be decided is whether the employe's discharge was for misconduct connected with her employment.

On November 5, 1997, the employe was responsible for inspecting 64 rooms in the hotel. Assuming the employe had a 30 minute lunch and two 10 minute breaks, the employe would have had about six and a half minutes per room for inspection. A customer complained about the condition of room 236.

The supervisor inspected the room and found it to be in unsatisfactory condition. The supervisor closed the room and sent the guest to another room.

On November 6, 1997, the employer took photographs of room 236, and offered the photos as exhibits at the hearing. The photographs highlight the dirty sections of the room. The photographs show portions of the room which are clearly dirty. There was dust and cobwebs in the corner, hair on the bathroom counter, and crumbs on the sofa bed. There was a towel with a rust stain, a dirty bathroom wall, and debris under the bed. The area around the refrigerator was not clean, the sink had drink stains, and there was a cigarette burn in the blanket. The room was occupied, and therefore the hair in the sink could have been left by the guest, the guest could not have been responsible for the other problems. The bathroom wall was extremely dirty and even a casual perusal of the room should have brought this to the employe's attention. The employe believed she had looked under the bed of room 236, however, had she done so, it would have been difficult to miss the debris under the bed.

The employe indicated that a new person had cleaned the room, and that this person had been poorly trained. However, if the employe was aware that she was inspecting rooms of a worker whose performance was poor, the employe, as an inspector, should have been more vigilant. The employe indicated that the employer's vacuums could not reach the corners of the room. However, even if this was the case, there were cobwebs in the corner and the employe could have requested that the team clean the room.

The employe's failure to properly inspect the hotel rooms amounted to such a wilful and substantial disregard of the employer's interests so as to amount to misconduct connected with her work.

The commission therefore finds that in week 45 of 1997 the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for weeks 42 through 52 of 1997 and weeks 1 through 19 of 1998, amounting to a total of $4,784.00 for which she was not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe is required to repay such sum 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 employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 45 of 1997, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $4,784.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed: June 29, 1998
holmar.urr : 145 : 1 MC 660.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult the ALJ with regard to witness credibility and demeanor but rather reverses his decision based on its reaching a different legal conclusion when applying the law to the facts found by the ALJ.

cc: EMBASSY SUITE HOTEL

ATTORNEY ANDREW FRANKLIN
ADELMAN ADELMAN & MURRAY


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