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

JILL R KOWALSKI, Employee

NORTH CENTRAL HEALTH CARE FACILITIES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05201387WU


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 two years as a dietary aide for the employer, a long-term nursing care facility. Her last day of work was June 16, 2005 (week 25), when she was discharged.

In May of 2005, the employee received a written warning from her supervisor for eating a piece of cake that belonged to the employer, without paying for the cake. The employer's policies were reviewed with her and she was notified that she would be discharged if it occurred again. On June 16, 2005, (week 25), the employee was to place cartons of milk in meals that were being delivered to either nursing home residents or the Marathon county jail. There were about ten workers in the tray line. The employee took a donut from the employer's food line. Her co-worker told her to "quit taking my donuts." The employee went to the break room and ate the donut. The employee, later that day, took another donut and was told by the same co-worker that she was going to get caught by the supervisor. The employee took the donut to the break room during a time that was not her normal break, and ate it. She was observed eating the second donut by her supervisor, who did an investigation. She was then discharged for her behavior. The value of the donuts was about 20 cents each.

The employee's position was that she was suffering from mental health issues at the time of the event. The employee further stated that she was taking numerous medications for her problems, one of which caused her to be hungry. The employee's position was that taking the donuts without paying for them was not a willful and intentional act on her part.

With respect to the employee's medication making her hungry, the commission does not believe that this excuses her behavior. Failing to eat breakfast might make a worker hungry, but that does not justify stealing food, even if the value is trivial, from the employer, nor is it a reason that would turn intentional conduct into unintentional conduct.

The employer in this case did warn the employee about taking food and did give her every opportunity to improve. The employer did, perhaps, even more than necessary to make the employee aware that her behavior was unacceptable and might result in her discharge.

In this case, the employee's behavior was not typical of someone who was trying to steal something. The employee, shortly after being warned about taking cake without paying for it, took a donut from the line, apparently in plain view of her co-workers and in particular, from under the nose of the co-worker who was handling the donuts. She did this in spite of the fact that the co-worker told her not to take them. She did not attempt to conceal the donut; rather, she went into the break room and ate it. The employee then repeated this behavior later that same day, even when the co-worker told her the supervisor would catch her if she persisted in doing this. The employee took the donut to the break room at a time she would not normally have been in the break room, and ate it. The employee explained at the hearing that she found her workplace to be extremely stressful. The employee alleged at the hearing that she had mental health issues that prompted her behavior. Based on the employee's actions, testimony, and medical documentation, on November 18, 2005, the commission remanded this matter to allow the employee the opportunity to present a certified medical report to support her assertion in this regard. On February 27, 2006, a hearing was held to have the employee's medical evidence included in the record. The employee's medical evidence indicated that the employee was unable to tolerate stress. While it was not clear from the record that the employee's job was unduly stressful, the employee testified that she felt the job was stressful.

The employee's certified medical report also indicated that the employee's medical conditions can affect decision-making and judgment, as well as her experience of the surrounding environment, specifically reality testing. The commission concludes, based on the evidence in the record, that the employee was not thinking clearly, perhaps as a result of job stress or perceived job stress, but certainly as the result of her medical condition, when she took the donuts. While the employer made a reasonable decision when it discharged the employee, the employee did not demonstrate such an intentional disregard of the employer's interests to amount to misconduct connected with her work.

The commission therefore concludes that in week 25 of 2005, the employee was discharged, but that her discharge was not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

However, it is clear from the record in this case that the employee's medical condition affected her ability to do her work, and that at some point, at the time of her discharge or thereafter, it was likely she was unable to work. However, there is not sufficient medical evidence in the record to conclude whether she was able to work and available for work at the time of her discharge, and if so, whether she continued to be able to work thereafter. Therefore the commission concludes that this matter should be remanded so that the department can investigate this matter and issue a determination, if it concludes that it is necessary to do so.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is not ineligible for benefits based on the separation from employment that occurred in week 25 of 2005. However, because the employee's ability to work seems questionable, this matter is remanded to determine whether the employee is able to work and available for work as of the week of the discharge.

Dated and mailed April 18, 2006
kowalji . urr : 145 : 4   MC 630.16

/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. The ALJ noted in his decision that the employee had health issues. The commission based its decision that her actions did not constitute misconduct in large part on the medical evidence obtained during the remand hearing. That evidence was not available to the ALJ when he made his decision.

cc:
Attorney Ronald J. Rutlin
Attorney Guy W. Fredel


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2006/04/24