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

DAVID WARD, Employee

MOTOR CASTINGS CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06602760MW


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, and after consultation with the administrative law judge, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for nine months as an operator for the employer, a foundry business. His last day of work was March 14, 2006 (week 11), when he was discharged.

The employee was placed in a last chance status on November 15, 2005 for improperly loading a machine resulting in damage to the machine and scrap. In particular, although the machine directions set forth the loading procedures, the employee followed the advice of a senior worker and loaded the machine improperly.

On March 4, 2006, following an absence, the employer accused the employee of not properly notifying it of his absence and warned him that further incidents could result in discharge.

On March 13, 2006, the employee was directed to remove risers from 18 castings. Part of the removal required a saw cut. Although the job did not have a job process card available, the employee's supervisor instructed the employee where to cut the casting for removal of the riser. The supervisor observed the employee initially, noting that he was performing the work properly. Subsequently, the employee erroneously cut ten of the eighteen castings resulting in scrap. When the plant manager learned of this incident, the employee was discharged.

Under Wis. Stat. § 108.04(5) a worker who is discharged for misconduct connected with the employment is ineligible for unemployment insurance benefits; thus, the issue to be decided is whether the employee's discharge was for misconduct.

The employer contended that the employee's production of scrap on March 13 in light of his prior disciplinary record constituted misconduct. This contention cannot be sustained.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. Absent intentional failures, however, the standard becomes essentially gross negligence, that is, instances of negligence so egregious as to be tantamount to intentional failures by an employee. Malecki v. Best Buy Stores, Ltd. Ptrshp., UI Dec. Hearing No. 98201180EC (LIRC, January 14, 1999).

There is no evidence in the record to reflect that the employee's last failure was intentional. The commission also finds that the failure, even in light of the last chance agreement and March attendance warning, was not gross negligence tantamount to intentional behavior. In particular, the employee never performed that particular job assignment before. Additionally, while the last chance agreement directed the employee to follow all written process procedures, the employer did not maintain a job process card at that location. The employee successfully completed the job for a short time after the supervisor's instruction but, at some point thereafter, the employee had difficulty making the cuts and made some incorrectly, resulting in the scrap. For these reasons, while the employee's behavior did not meet the employer's expectation and the employer may have ultimately made a valid business decision in discharging the employee, the discharge was not for misconduct.

The commission therefore finds that in week 11 of 2006, the employee was discharged but not 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 as of week 11 of 2006, if otherwise qualified.

Dated and mailed September 15, 2006
warddav . urr : 150 : 1   MC 663

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did confer with the administrative law judge prior to determining to reverse in this matter. The administrative law judge credited that the employee's failure in the last incident was not intentional. The commission's reversal is not based upon a differing credibility assessment but based upon reaching a different legal conclusion as to whether the employee's conduct constituted gross negligence.


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uploaded 2006/09/18