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

SCOTT D KOLITZ, Employee

GF HEALTH PRODUCTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05002477FL


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 for five weeks as an assembler for the employer, a manufacturing facility. He had worked in the same position through an employment agency for four months prior to his hire by the employer. His last day of work was March 15, 2005, and he was discharged on March 16, 2005 (week 12).

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

In this case, the employer alleged that the employee was discharged for violating the employer's drug policy. The employer did not present the drug policy at the hearing although the employer provided some testimony about the policy.

The human resources manager testified that she was not present when the employee was discharged although she did send a letter to the employee formalizing the discharge.

In November the employee's elbows, wrists, hands and shoulders started to hurt. On March 9, 2005, the employee had seen Dr. Wells for elbow pain. On March 10 and 11 the employee called in and told an acting supervisor that he had a medical excuse to be off work. He returned to work on March 14 with a slip from his doctor noting that the employee had been seen for right elbow pain and noting that this was a worker's compensation matter. The employer's human resources manager testified that the policy required all workers who sustain "a work-related injury to have a post-accident drug screen." The employee informed the employer that there was not an "accident." The employer informed him that an accident report still needed to be filled out.

The employee was told to work within the doctor's restrictions and to get a drug test later that day. The employee did not get a drug test and contacted his doctor because he was "tired of hearing about worker's comp." He told his doctor to lift all of his restrictions. When he returned to work on March 15, 2005, he told his supervisor that he no longer had any restrictions and that his doctor was faxing the employer a release of all restrictions. He refused to work with restrictions. At the hearing, he could not explain why he would want to be released from restrictions if he was experiencing pain possibly due to an injury. He also insisted that he did not do drugs. He explained that he did not take the drug screen because he did not know that his pain complaints constituted an accident and he had just taken a screen a few weeks earlier. He had taken one prior to that as well, which was negative but the sample was invalidated due to a chain of custody problem so he had to give another sample, which was also clean.

The employer sent the employee home. He was discharged on March 16, 2005 (week 12) for false reporting of an on-the-job injury, refusing to take a post-accident drug screen and refusing to work as requested by his supervisor.

The employee argued that he was discharged but not for misconduct connected with his employment because he did not know whether he had sustained an accident and should not have been required to take a drug test or work with restrictions. The commission agrees.

The employer did not present a copy of the employer's drug policy and testified merely that a drug test was required after a work accident. The employee testified he did not know why his arm hurt, but that it hurt for some time prior to his visit to the doctor. The employer did not demonstrate that the employee should have been aware that an injury of this nature would be considered a work accident that would result in a drug test. Because the employer failed to either present a copy of the drug policy or to present clear and complete testimony about the policy, the commission cannot determine that the employee violated the policy.

The employee's testimony that he had taken, and passed, several prior drug tests in his short period of employment was not disputed. Further, the employee explained that he had recently been forced to retake a drug test because of error at the test site. The employee testified he asked his doctor to indicate that his condition was not work-related because the employer seemed so upset about the possible worker's compensation aspect of the case. The employee's actions did not demonstrate such a willful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 12 of 2005, the employee was discharged, but that his discharge was not for misconduct connected with the 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 12 of 2005, if otherwise qualified.

Dated and mailed October 5, 2005
kolitsc . urr : 145 : 8  MC 651.4  MC 652.1

/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 prior to reversing her decision. The commission did not reverse the ALJ's decision based on a different impression of witness credibility and demeanor. Rather, the commission reached a different legal conclusion when it applied the law to the facts in this case.

cc: Basic American Metal Products


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uploaded 2005/10/10