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

ALLEN LINDSEY, Employee

LAIDLAW TRANSIT SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06600452MW


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 about seven years as a driver for the employer, a transportation service for the disabled. His last day of work was October 25, 2005 (week 44) 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.

During the course of his employment, the employee had accidents with the employer's vehicle. In 2004, he backed into a pole and put a dent in a bumper. He received a one-day suspension for that violation. On July 11, 2005, the employee ran over a stop sign in a parking lot. He received a five-day disciplinary suspension and was required to undergo retraining. On August 25, 2005, the employer reviewed a video tape from an in-bus camera and determined that the employee had hit a curb. The employer also determined that the employee appeared to have his eyes closed while he was driving. The employee received another five-day disciplinary suspension and was required to sign a last chance agreement. That agreement indicated that if he had a further preventable accident, it may result in his termination. The employee was informed that he had to sign that last chance agreement or he would be discharged immediately. He signed the agreement on September 7, 2005.

On his last day of work, the employee struck and damaged the mirror of a parked vehicle because he drove his vehicle too closely. He was then discharged.

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 commission noted in Cairns v. TTC Illinois Inc, UI Dec. Hearing No. 00200102EC (LIRC Apr. 7, 2000):

The employer correctly notes that the definition set forth in Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), does not specifically state that the negligence of the employe must be "gross" to be misconduct. However, it is clear from that definition that the negligence must be significantly more than ordinary negligence. The level of negligence necessary to constitute misconduct is that which manifests wrongful intent or evil design or shows an intentional and substantial disregard of the employe's duties and obligations to the employer. Pijan v. Menards Inc., UI Dec. Hearing No. 98200207EC (LIRC Jun. 25, 1998); William J. McKibbin v. LIRC, Marten Transport, Ltd., and R.E. Harrington, Inc., No. 94-CV-0213 (Wis. Cir. Ct. Dane County Dec. 23, 1994); aff'd. William J. McKibbin v. LIRC, Marten Transport, Ltd., and R.E. Harrington, Inc., No. 05-0234 (Wis. Ct. App. Feb. 29, 1996, unpublished). The courts have stated that it is a reasonable interpretation of "misconduct" to conclude that a recurrent pattern of negligent acts, so serious as to amount to gross negligence and thereby evince an intentional and substantial disregard of the employer's interests, is necessary to find misconduct. See McGraw Edison v. ILHR Department, 64 Wis. 2d 703, 221 N.W.2d 677 (1974); Fitzgerald v. Globe-Union, Inc. 35 Wis. 2d 332,151 N.W.2d 136 (1967).

The employee was at fault in striking a pole. The employee hit the stop sign because it was in his blind spot. The employer did not present the video tape at the hearing to establish that the employee's eyes were closed on August 25. While the employer was free to deem bumping a curb with a tire an "accident," the commission considers the incident to be an extremely minor one. No damage was shown to have occurred because the employee hit a curb. The employee made a misjudgment on October 25 believing he had sufficient space to clear the other vehicle. The commission finds that the employee's actions demonstrated ordinary negligence on occasion and that those actions were not so serious as to amount to gross negligence.

The commission therefore finds that in week 44 of 2005, the employee was discharged but not for misconduct connected with his work for the employer within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 44 of 2005, if he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed May 4, 2006
lindsal . urr : 132 : 8 : MC 662

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ did not relate any demeanor impressions he had of the employee or the employer's witness that led to his decision.


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