CHRIS E FREEMAN, Employee

OCONOMOWOC MEMORIAL HOSPITAL INC, Employer

An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

The employee worked for the employer, a hospital, for close to five years as a maintenance worker. His last day of work was December 9, 2005 (week 50).

The employee was directed to inspect the fire doors at the employer's facility and to fill out a check list showing the condition of the doors and noting what repairs, if any, needed to be made. The employee performed the inspections and made adjustments to some of the doors. On November 22, 2005, the employee submitted a check list showing that he had inspected each of twenty-four doors. The employee marked "ok" next to most of them and wrote comments next to a few that required additional repair.

On December 9, 2005, the employer performed a quality assurance check on a few doors and found loose screws and other minor repairs needed. The employer concluded that the employee had not actually inspected the doors. The employee was discharged for falsifying records to indicate he had performed inspections that had not been performed.

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

The employer contended that the employee failed to do his work and falsified records to show otherwise. The commission is unpersuaded this was the case. The employee denied falsifying records and testified that he did inspect all of the doors. The employee explained that the employer showed him three doors, one of which had a part needing to be tightened, and one of which had a loose screw that had not been loose when the employee did his inspection two weeks earlier. The commission believes it is possible that minor problems were missed or did not exist at the time the employee performed his inspection two weeks earlier. The evidence does not warrant a conclusion that the employee failed to perform the inspections and deliberately falsified the check list to indicate he had done so, as the employer alleged.

The commission, therefore, finds that in week 50 of 2005, the employee was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 50 of 2005, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed May 25, 2006
freemch . urr : 164 : 2   MC 630.09  MC 664

/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. The administrative law judge indicated that the employee admitted to failing to perform the inspections in his initial statement to the department's investigator. (Ex. 4). However, while the employee acknowledged that the inspections may have been performed over the course of several days, rather than on the date which appeared on the form, he did not agree that he failed to inspect all the doors.

cc: Oconomowoc Memorial Hospital, Oconomowoc, WI

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

uploaded 2006/06/05