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

CAROLYN SCANLAN, Employee

COUNTRY CASTLE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05005134WK


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 eighteen weeks as a caregiver for the employer, a community based residential facility. Her last day of work was on October 2, 2005 (week 41).

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.

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 employer alleged that the employee was sleeping while at work.

The employer did not present testimony from anyone who actually witnessed the employee sleeping, but presented testimony from the owner, who testified that he viewed a videotape of the employee sleeping. In Robinson v. Central Parking System of Wisconsin Inc., UI Hearing Dec. No. 03603846MW (LIRC Dec. 16, 2003), the commission stated:

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. Clearly, four instances of sleeping on the job generally reflects the substantial disregard of an employer's interests which is misconduct for unemployment insurance purposes. Allegations of misconduct must be proven by competent evidence, however, and that is lacking in three of the four incidents at issue. The employer had only hearsay or second-level hearsay to support its allegations that the employee was sleeping while on duty on October 12 and November 14, 2002. The employer's evidence of the incident precipitating the discharge does not meet the so-called "best evidence" rule and thus is deficient on that ground. The employee throughout has disputed the employer's interpretation of the employee's conduct on the videotape; given this, it was the employer's evidentiary obligation to have produced the videotape or other direct evidence of the employee's alleged sleeping while on duty on that date.

The employer here, unlike the employer in Robinson, brought the videotape to the hearing. However, the ALJ did not accept the tape noting that he did not have the equipment to play the tape. The confirmation of timely appeal document sent to the parties instructed the parties to refer to the handbook, "Attending an Unemployment Insurance Hearing." That handbook provides:

Exhibits

The evidence you submit must relate to the issue(s) of the case. Bring the original document and a copy with you to the hearing. The judge will decide what to accept as evidence. If you bring a video or audiotape, you must bring equipment to play it at the hearing. All exhibits are left with the judge.

As the employer was alerted that it was required to furnish the equipment to play the videotape, bringing the tape without the necessary equipment was the same as not bringing the tape at all. The employee had the right to view the tape to provide her own testimony and cross-examine the employer.

The employer's evidence did not meet the best evidence rule. The employee has consistently denied sleeping, although she acknowledges she may have been lying down. In that regard, the employer did not present any firsthand evidence to establish that the employee failed to attend to residents who were in need on that date or that the employee otherwise failed to perform her duties on that date. The employer was relying on complaints from other individuals regarding how the house looked when they arrived for work following the employee's shift.

Finally, department records reflect that the employer's account number reflected on the initial determination and the appeal tribunal decision is inaccurate. The commission modifies the appeal tribunal decision to reflect that the correct employer account number is 157612.

The commission therefore finds that in week 41 of 2005, the employee was discharged from her employment but not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is modified to conform to the above findings and, as modified, is reversed. Accordingly, the employee is eligible for benefits beginning in week 41 of 2005, if she is otherwise qualified.

Dated and mailed February 24, 2006
scanlca . urr : 132 : 8 : MC 659.02  PC 714.07  PC 715

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The commission has reversed the appeal tribunal because it finds that the employer did not meet its burden of proof.



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