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

ASHLEY M WITTLIEFF, Employee

MITCHELL MANOR, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05608157MW


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 the employer, a long-term care facility, for a year and three months as a dietary aide. Her last day of work was October 12, 2005 (week 42).

The employee was responsible for supplying her own uniform, consisting of black pants, a white shirt, and a white apron, and for keeping it clean. On May 3, 2005, the employee was issued a warning for serving food to residents wearing a dirty uniform. She was advised that a repeat incident would result in discharge.

On October 12, 2005, the employer met with the employee to discuss concerns about her performance and attitude. Management staff present at the meeting noticed that the employee was holding her uniform in her lap and that it appeared to be dirty, but said nothing about the uniform while the employee was present. The employee was sent to work in the stock room, while the employer continued to discuss her employment situation in her absence.

After the employee left, the staff members who had noticed the dirty uniform reported it to the human resource director. Upon confirming that the employee had received a prior warning, the human resource director prepared a discharge notice indicating that the employee reported for work with a stained shirt that looked as though it had not been washed recently. The human resource director then called the employee in, handed her the dismissal notice, and demanded to see her uniform. The employee unrolled the uniform, revealing blotches on the apron, which the employee stated were the result of washing with bleach. The employer also noted that the shirt and apron were wrinkled and the shirt was discolored and had yellow stains near the armpits. The employee was discharged for having an unsanitary uniform.

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

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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' within the meaning of the statute."

While the employer insisted that the uniform was the only reason for discharging the employee, it is clear from the record that the employer was generally dissatisfied with the employee's performance and attitude. The human resource director prepared the discharge notice and notified the employee she was being discharged before looking at the uniform or speaking to the employee. The employee testified that she had washed the uniform and used a stain remover product on it. Although the employer disputed this, it did not establish that the employee had not made reasonable efforts to keep the uniform clean. The employer's decision to discharge the employee before carefully noting the appearance of her uniform indicates that it was not willing to consider the possibility that the uniform, although stained, had been laundered.

Moreover, even if the employee had neglected to wash the uniform on this occasion, it can be inferred from the record that she generally reported for work wearing a clean uniform and did not habitually disregard the employer's rules with respect to dress or grooming. Reporting to work without a clean uniform twice in five months is not conduct so egregious as to evince a wilful disregard for the employer's interests, particularly given that the employee had to provide her own uniform and wash and iron it herself. If the employer regarded clean white uniforms as a high priority for kitchen staff, it could have provided its workers with such uniforms.

The commission, therefore, finds that in week 42 of 2005, the employee was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 42 of 2005, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed May 19, 2006
wittlas . urr : 164 : 8  MC 698

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge had no demeanor impressions to impart.


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