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. 05200567EC


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. He was put on a three-day disciplinary suspension on February 8, 9 and 10 (week 7). He made a claim for unemployment benefits at that time.

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 anyway 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 issue to be decided is whether the employee's disciplinary suspension on February 8, 9 and 10 was for good cause.

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 good cause. 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. However, the account was lost because the employer raised the price of the product. The employee did not explain to the employer why the account was lost because the employer already indicated it was committed to raising the price. There may have been a lack of understanding and communication between the parties, but the employee was unable to meet some of the employer's expectations because he was not clearly informed as to what those expectations were. 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. The employer was entitled to have the employee make at least a good-faith effort to meet its expectations and complete the photo shoot in a timely manner. The employee's failure to meet the employer's reasonable expectation justified the disciplinary suspension imposed during the week ending February 12, 2005 (week 7).

The commission therefore finds that in week 7 of 2005, the employee was placed on a disciplinary suspension for good cause, within the meaning of Wis. Stat. § 108.04(6).

DECISION

The decision of the administrative law judge is modified and as modified is affirmed. Accordingly, the employee is ineligible for benefits in week 7 of 2005.

Dated and mailed October 19, 2005
whatke . usd : 145 : 4  MC 676

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The employee, in his petition for commission review, explains that he does not believe that his suspension was for good cause. However, the employee does not specifically explain why he does not believe that his suspension was for good cause. The commission has consistently held that good cause in a disciplinary suspension includes single, isolated acts of negligence or poor judgment of a type that the misconduct standard would not necessarily include. This standard in other words is considered to be a less stringent standard than the misconduct standard. See Allen D. Woepse v. US Postal Services, (LIRC 5/8/97). Therefore, applying the law to the facts at hand, the commission is satisfied that the employee's negligence amounts to good cause for suspending his employment within the meaning of Wis. Stat. § 108.04(6). The employee's failure to perform the duties of his position gave the employer good cause for the disciplinary suspension.

cc: Attorney Todd A. Pauls


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