JOHVON M SEARCY, Employee
VAN RU CREDIT CORP, Employer
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:
The employee worked for approximately 5 and 1/2 months as a bill collector for the employer, a bill collection agency. The employee's last day of work was June 30, 2005 (week 27), when he was discharged.
The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.
The employer discharged the employee for what it alleged was insubordination.
On June 30, 2005, the employee was scheduled to work from 12 noon to 9:00 p.m. The employee took a break at 1:30 p.m. He was supposed to take a break at 2:00 p.m. A supervisor approached the employee and told him that he had taken his break early and that he should not have taken a break until 2:00 p.m. The employee then proceeded to talk about this issue with co-workers, distracting them. The supervisor again approached the employee and told him to log off of the computer and proceed to a manager's office to discuss the matter. The employee told the supervisor, "Not right now, I'm busy." The supervisor repeated the request two more times before the employee complied. While in the manager's office, the supervisor told the employee that he "needed to follow instructions." The employee felt he had not done anything wrong. The conference in the manager's office took about two minutes. The employer subsequently discharged the employee over this incident.
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 insurance 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 employee's repeated refusal to obey the employer's reasonable directive was insubordinate. The employer had a right to expect the employee to immediately obey its reasonable request to discuss an employment-related issue in private. The employee's refusal demonstrated disrespect for one in a supervisory position. The employee engaged in intentional conduct in disregard of standards of behavior the employer had a right to expect of the employee.
The commission therefore finds that in week 27 of 2005 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).
The commission further finds that the employee was paid benefits in the amount of $2,739.00 for weeks 27 through 36 of 2005, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).
The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.
The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).
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 employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2.
The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 27 of 2005, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $2,739.00 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 employee 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 November 10, 2005
searcjo . urr : 132 : 1 : MC 640.03
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
Robert Glaser, Commissioner
The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that he believed the employee did not initially perceive the situation to be serious, but when he realized his supervisor meant business he complied. The ALJ indicated he believed the employer used the situation as a pretense to discharge the employee. The ALJ did not impart any demeanor impressions of the witnesses that led to his credibility assessment. The commission finds the employee repeatedly failed to follow a reasonable directive from one in a supervisory position. The employee was insubordinate.
NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government. Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.
cc: Van Ru Credit Corp. (Brookfield, Wisconsin)
[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]
uploaded 2005/11/22