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


GERALYN R MASTERSON, Employe

JEWELERS MUTUAL INS CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98401508AP


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about four years as a microfilm clerk for the employer, an insurance company. She was discharged on April 9, 1998 (week 15).

The employer had a policy which provides, in part:

"The electronic communications system is not to be used to create any offensive or disruptive messages. Among those which are considered offensive are any messages which contain sexual implications, racial slurs, gender-specific comments, or any other comment that offensively addresses someone's age, sexual orientation, religious or political beliefs, national origin, or disability. . . The confidentiality of any message should not be assumed . . . Any employee who violates this policy or uses the electronic communications system for improper purposes shall be subject to discipline, up to and including discharge from employment."

The written policy also prohibited personal use of the fax machine, but the assistant vice president of human resources testified that standard office procedure permitted the use of the machine in other than business contexts, so long as the employe reimbursed the employer for any long-distance charges incurred.

The employe's fiancee' has a daughter from a previous marriage. The grandmother had set up appointments for the child with an orthodontist and had made arrangements for the employe and her fiancee' to pay the orthodontist's bills. The grandmother refused to accept mail or phone calls from the employe or her fiancee'. The employe therefore sent a fax to the employer which stated:

"This is to inform you that we have talked to Delta Dental about Ariel's orthodontic work and would appreciate your minding your own business when it comes to financial matters regarding Ariel. We have nothing more to discuss with you, unless of course, a miracle happened and Ariel is your biological child!"

The fax arrived with the employer's transmittal information on it. The employe used the employer's letterhead when she sent the fax, but blocked out everything pertaining to the employer. She did not think about whether the fax would arrive with the employer's transmittal information across the top.

The employer's assistant vice president of human resources learned that the fax was sent when she received a complaint from the fax recipient. The recipient sent a copy of the fax, including the transmittal information line. The employer decided to discharge the employe for violation of the electronic communications system policy. The employe was informed of her discharge on April 9, 1998 (week 15).

The issue to be decided is whether the employe's actions, which led to her discharge, amounted to 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 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 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' within the meaning of the statute."

The employer contended that the employe was discharged for misconduct connected with her work. The commission disagrees. The fax at issue did not contain sexual implications, racial slurs, or offensively address age, national origin or the other factors listed in the employer's policy. While the list contained in that policy is not exclusive, the fax was not threatening, used no vulgar language or anything else that would be a clear violation of the employer's policy. Further, even though the employer's fax transmittal information was on the fax, it was not foreseeable that the employer would have been affected by the fax, which was clearly from the employe and in connection with a personal matter. The message contained in the fax is what the employe wished to get to the recipient and the fact that the fax was the employer's was incidental. The employe could just as easily have used the fax at another location. The employer allowed for the use of its fax machine for personal use, so the employe's failure to follow the policy in that regard did not amount to misconduct. While the employe used poor judgment in sending a fax from the employer's fax machine to a person who clearly did not wish to communicate with her, the commission cannot conclude that the employe's actions demonstrated such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 15 of 1998 the employe was discharged but not for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 15 of 1998, if she is otherwise qualified.

Dated and mailed: August 28, 1998
mastege.urr : 145 : 6  MC 687

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ did not find the employe's testimony to be particularly credible, based on her testimony in another hearing regarding her failure to appear. The ALJ did not cite any observations of the employe's demeanor while testifying, but noted that she portrayed herself as a newcomer to the area, while the employer pointed out she had been working for it in the area for four years. However, even accepting the ALJ's credibility determination, based on the fax itself, as well as the employer's rules, the commission cannot find that the employe clearly violated the employer's rule regarding faxes, or that she could foresee adverse consequences to the employer as a result of the fax. The ALJ in fact believed that the employe did not think about the fact that the employer's fax transmittal information would appear on the fax, although the ALJ did not believe that the employe would not know it would appear. The commission concludes that the employe's sending of the fax amounted to an error in judgment and did not amount to misconduct connected with her work.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge that the employe clearly knew that the recipient of the fax was predictably going to be upset with both the fact that she received the message and the message itself. The last sentence in the fax was likely to be offensive. Therefore, I would affirm the appeal tribunal decision.

Pamela I. Anderson, Commissioner


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