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

SHANE R HEINDL, Employee

COUNTRY SPRINGS HOTEL STEVENS POINT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06000687MW


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 more than one year for the employer, a hotel, as a head houseman, responsible for setting up meeting rooms. The employee was discharged on January 5, 2006 (week 1).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with his employment.

On April 7, 2005, the employee was issued a first written warning for reporting to work with alcohol on his breath. This warning stated that further violations would result in termination.

On July 26, 2005, the employee was issued a second written warning and demoted for failing to properly set up a meeting room and leaving work early on July 22, and for leaving work early on July 23. This warning stated that further violations would result in termination.

The employee was discharged on January 5, 2006, based on the employer's belief that he had accessed and downloaded pornography on his work computer on January 2, 2006

The commission first notes that, although 21 pages of exhibits were received into the record, only the employee manual is identified in the record and even then not by exhibit number. As a result, for example, the record does not establish that page 17 of the exhibits, the only page which contains downloaded photos or expressions, was the alleged "pornography" for which the employee was terminated.

However, even if page 17 constituted this alleged pornography, it is not sufficiently objectionable to merit the employee's discharge. It consists of two clothed portraits of a young woman; and two pictures, the details of neither of which it is possible to discern, one labeled "boing," and the other labeled "holy shit." Without more detail in either the testimony or the exhibits, it would have to be concluded that the employer failed to prove that what the employee may have been downloading would constitute pornography.

In addition, it is not clear from the record that the employee would have had reason to be aware that his job would be in jeopardy for using the employer's computer system for personal purposes. Although the employer's electronic communications policy requires employees to use its computer system for business purposes only, there is no consequence stated in this policy for its violation. Furthermore, even though the employee manual classifies the "mishandling" of employer equipment as a Group B offense, it specifies for this group of offenses that termination would result only for a "third offense." Neither the employee manual, nor the written warnings issued to the employee in April and July of 2005, clearly indicate whether termination would result, after these warnings, for any future work rule violation or only for any future work rule violation of the same nature, e.g., reporting to work with alcohol on his breath, leaving work early, or failing to properly carry out assigned work responsibilities.

The employer also attempts to characterize the employee's actions as constituting a Group C work rule violation, i.e., the destruction or damage of company property, the consequence for which is specified in the employee manual as immediate termination. However, even though it may have caused pop-ups on the employer's computer system, the record does not establish that the employee's accessing and downloading of material destroyed or damaged this system to any extent. As a result, the employee's actions would not qualify as a Group C work rule violation.

In addition, the employer apparently is contending that the employee's actions constituted prohibited sexual harassment. However, there was no showing in the record that any other worker had access to, or was exposed to, any of the allegedly inappropriate materials the employee was viewing and downloading on the employer's computer system, or, even if they had, that this access/exposure was sufficiently severe or pervasive to constitute actionable harassment.

The employer failed to sustain its burden to prove that the employee engaged in misconduct.

The commission concludes that, in week 1 of 2006, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat. § 108.04(7)(a); but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 1 of 2006, if otherwise qualified.

Dated and mailed May 2, 2006
heindsh . urr : 115 : 2  MC 690

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.



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


uploaded 2006/05/05