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

KEVIN M WHATLEY, Employee

XWSCI INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05200566EC


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 about one and a half years as sales manager and sales representative for the employer, a futon manufacturing business. His last day of work was February 15, 2005 (week 8), when he was discharged.

The employer's business was purchased by a new owner in June 2004. Thereafter, the new owner set forth certain expectations as to the employee's job duties and responsibilities as sales representative. These included preparation of written reports of the employee's sales calls. He was also to prepare a message in anticipation of calls for prospective customers. Later on, he was assigned to prepare a strategic sales plan for the year 2005.

The employee's work did not meet the new owner's job expectations. The employee turned in call reports, but the employer considered them to be incomplete. On one occasion, he informed the employee that a group of call reports for one day were not dated. Otherwise, the owner did not express dissatisfaction with the employee's written reports.

In November of 2004, the employer told the employee to present a sales plan for 2005. The employer asked for sales goals volumes, territories, manpower and sales forecasts broken down by item. The employee created a plan and gave it to the employer.

The employer instructed the employee to raise the price of its product to a particular customer by 85 cents. The employee explained that the customer would cancel its order, but the owner told the employee to raise the price and the account was lost, at least on a temporary basis, until the owner discussed the matter with the customer.

The employee met with a particular customer six or seven times. On one occasion, the customer cancelled a meeting. The owner believed that it was the employee who cancelled the meeting.

The employee failed to complete a photo shoot in a timely manner. The employee argued that he failed to perform this important task because he had only some, but not all, of the product available to shoot. The employee explained this to the owner who gave him a solution to the problem. Because the employee did not like the solution, the employee failed to complete the task as instructed by the employer.

The employer suspended the employee for a variety of reasons, and informed the employee that he was required to formulate a plan to move forward. The employee, because of commitments to customers, continued to work during this three-day suspension, despite the fact he was not being paid for his time. The employee did not understand the employer's directive, so when he returned to work on February 14 he asked the employer to provide details about the plan. The employer considered the failure to prepare a plan to be insubordinate and on February 14, 2005, it discharged the employee.

Prior to his discharge, the employee was suspended on February 8, 9 and 10 for his shortcomings.

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 was dissatisfied with the employee's performance in a number of areas. The employer was not satisfied with the detail in the employee's call reports. The employer did not inform the employee that his reports lacked detail. The employee's failure to correct a problem he did not know existed did not amount to misconduct. The employee was unable to comply with the employer's directive that he produce a plan, because he did not understand the directive. He did seek clarification, but because the plan had not been produced the day the employee returned from his suspension, the employer discharged him. The employer believed that the employee cancelled a meeting with an important client. However, the employee did not do this. The employer believed the employee lost an account, because he did not communicate with a customer and learn that the account was lost because prices were raised by a small amount. However, it was the employee's impression that the employer was firm on the price and that he would not be able to negotiate a reduction.

There may have been a lack of understanding and communication between the parties, but the employee's performance failures were not the result of an intentional and substantial disregard of the employer's interests. Further this failure was one of the reasons that the employee had been suspended and he had not been told he needed to complete the photo shoot during his suspension. In fact, he was not supposed to work during his suspension.

The employee was more blameworthy with respect to the photo shoot. The employee should have made a better effort to get the project done in a timely manner. The employee was to have started the project as early as August. While he stated that not all the product had arrived so he was unable to complete the photo shoot, the employer instructed him on the manner in which he was to proceed. The employee did not agree with the employer's plan and simply failed to complete the project. However, the employee's actions in this regard amounted to poor judgment and did not rise to the level of misconduct connected with his work.

The commission therefore finds that in week 8 of 2005, 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 8 of 2005, if he is otherwise qualified.

Dated and mailed October 19, 2005
whatlke . urr : 145 : 4  MC 689  MC 688.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who presided at the hearing. The ALJ indicated that it was extremely difficult for him to determine which witness presented the most accurate version of the facts. He explained that there was no particular reason to doubt either side, and basically decided as he did because he believed the employer was the more plausible. The commission resolved credibility in favor of the employee because the employee indicated in an email dated February 10, that he wanted to continue working for the employer and to be a productive member of the team. He worked during the three-day suspension because he was concerned about the customers. Finally, the employer's witness agreed that the employee explained on February 14, that he did not understand the employer's directive to formulate a plan. The commission concludes, based on these factors, that the employee attempted to perform the job to the best of his ability, but did not understand the employer's expectations and directives.

cc: Attorney Todd A. Pauls


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uploaded 2005/10/31