LOIS L UBBELOHDE, Employee

LA PETITE ACADEMY INC, 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 as a teacher for the employer, a childcare center. Her last day of work was November 4, 2005 (week 45).

The employee was responsible for children of various ages when she worked for the employer. The employer maintained work rules which prohibited the use of any corporal punishment.

The employer's Director heard from a parent that the parents were taking the child from the employer's care because the parents had allegedly seen the employee pull children by the hand. The Director did not mention this to the employee because the Director did not want the employee to feel intimidated that a child had been removed because of something the employee did.

On November 4, 2005, the employee was working with toddlers and two-year olds. They were trying to pick up the room and get ready to go outside. A child went to a shelf and started to get toys out. The employee told her "no" twice and asked her to walk away. The child did not walk away, and the employee leaned over and pulled the child's hand from the shelf. The child fell and began to cry. The employee got the child calmed down and they went outside. The incident was reported to the employer by another worker and the employee was sent home. On November 9, 2005, (week 46), after completing its investigation, the employer discharged her from employment.

The issue to be decided is whether the employee's discharge was for misconduct connected with her 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."

It was the employee's position, that while she pulled the child's arm she did not use any serious force and did not hurt the child. The employee asserts that her actions did not amount to misconduct. The commission agrees.

The employer did try to announce its rules to workers. However, on the only prior occasion that the employer believed any similar incident occurred, the employer did not bring this to the attention of the employee. While the employer's rule provided that workers were not to hit, slap or pull children, at times workers might be required to physically remove a child who was not cooperating with an instruction. The employee may have acted in a reflexive manner, and she certainly did not intend to hurt the child. While the employer's rule may have been reasonable, the employee's action was brief, unpremeditated and did not cause physical harm to the child. The employee had not been put on notice that any of her prior interactions with the children were inappropriate or any cause for concern. While the commission does not condone the employee's behavior, the employee's conduct did not evince such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 45 of 2005, the employee was discharged by the employer, but that her discharge was not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 45 of 2005, if otherwise qualified.

Dated and mailed May 4, 2006
ubbello . urr : 145 : 4   MC 610.25

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ pointed out that this was a single incident and that the employee's job could be frustrating. On the other hand, he pointed out that workers owe a high degree of care to individuals who are unable to take care of themselves. The ALJ pointed out that the employee's demeanor was nothing that was contrary to her testimony, and that she agreed, grudgingly, that she pulled the child too hard. However, the ALJ believed that the rule against corporal punishment was very clear. The commission does not necessarily disagree with the ALJ's credibility determination and the facts are, for the most part, undisputed. However, the commission concludes that the employee did not intend to harm the child and that her action was the result of extremely poor judgment on her part, but that it did not rise to the level of misconduct connected with her work.

cc: La Petite Academy Inc. (Madison, Wisconsin)

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

uploaded 2006/05/05