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

STEVEN R SCHMIDT, Employee

SENSIENT FLAVORS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05002936BD


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 over 17 years as a machine operator for the employer, a manufacturer of food additives. His last day of work was May 13, 2005.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with his employment. Another potential issue to be decided is whether the employer provided a timely and/or complete report to the department regarding the separation of the employee's employment.

The employer has a policy of providing a drug and alcohol free workplace. A worker is prohibited from reporting to work or being at work while under the influence or when impaired by having used alcohol. The worker is also prohibited from possessing, concealing, transporting or selling alcohol or drugs on company property.

The policy provides that a worker will be tested after an accident. In the event of a positive test, a worker will be disciplined up to and including discharge. The employee had a work accident on May 11, 2005. He was tested that day, and the employer discharged the employee because of a positive test.

The employer had adopted a code of conduct in 1995. However, the employee did not know the specific details of the employer's drug policy. The employee was never given a pre-employment drug test and was injured in the past but was not tested. The employee was last trained, on a variety of procedures, in 1995. The employee's testimony that he did not realize that he would be tested after an accident and was not aware that the employer would discharge him for a positive test result is credible. While the commission does not condone the employee's behavior, when the employer seeks to regulate the employee's off duty behavior, it should inform the employee clearly of its intention. The employee's off-duty use of marijuana was an error in judgment but did not amount to such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 21 of 2005, the employee was discharged, but that his discharge was 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 21 of 2005, if otherwise qualified.

Dated and mailed September 30, 2005
schmist . urr : 145 : 1  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 who held the hearing but reversed the ALJ's decision because it reached a different legal conclusion based on the facts found by the ALJ.

The employer has argued that it provided timely information and documentation to the adjudicator who was investigating the matter. As such, the employer protests the ALJ's determination that benefits remain charged to the employer's account. However, the commission has concluded that the employee is entitled to benefit payment. As such, the employer's account will be charged for those benefits.

 

cc: Sensient Flaavors, Inc. (Juneau, Wisconsin)


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uploaded 2005/10/10