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

AMIE J MISCHLER, Employee

HARBOR SENIOR CONCEPTS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06401778GB


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 22 of 2006 and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed November 25, 2006
mischam . usd : 150 : 8   MC 630.07

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The employee petitioned the appeal tribunal decision contending that her discharge was not for misconduct connected with her employment. Specifically, while she admitted being dishonest with the employer's owner and her supervisor regarding who authored a letter complaining about the supervisor, she argued that she had the employer's best interests in mind and, as such, her behavior was not misconduct. To further support her contention, the employee attached a photocopy of a newspaper article referencing a Wisconsin Employment Relations Commission (WERC) decision. The commission wishes to note that the WERC is a separate agency from the Labor and Industry Review Commission (LIRC) with separate statutory responsibilities and jurisdiction. The issue of the employee's eligibility for unemployment insurance benefits is governed by Chapter 108 of the Wisconsin Statutes. The commission's rules provide, at Wis. Admin. Code § LIRC 1.04, that review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. Each case is decided on its individual merits based upon the record developed at the appeal tribunal hearing. See Roach v. Labor and Industry Review Commission, Schneider National Carriers Inc., Case No. 01-CV-919 (Wis. Cir. Ct. Washington County June 2, 2002).

Wis. Stat. § 108.04(5) denies unemployment insurance benefits to a worker who has been discharged for misconduct connected with the employment. Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941). In Krueger v. Voith Paper Fabrics Appleton Inc., UI Dec. Hearing No. 06401483AP (LIRC September 15, 2006), the commission explained:

Trust is an essential component of the employment relationship. The commission and the courts have been consistent in holding that an employee's dishonesty in the course of this employment relationship supports a conclusion of misconduct. See, Gregory v. LIRC and MPS, Case No. 97-CV-001333 (Cir. Ct. Milw. Co. Dec. 4, 1997) (misconduct found where employee represented to employer on the date of absence that she would not be able to report to work due to a family emergency when in fact she engaged in election activities that day); Wise v. ABF Freight System, Inc., UI Hearing No. 03002541MD (LIRC Dec. 4, 2003); Lake v. Owen Ayres & Associates, Inc., UI Hearing No. 03002845MD (LIRC March 16, 2004).

In this case, it was not the employee's behavior in writing the letter that the commission considers misconduct. Instead, it was her dishonesty when questioned about the letter; the employee denied writing it and suggested a past worker as possibly authoring the letter. The employer had a right to honesty from the employee, its director of a residential care, when investigating this matter. The employee's intentional dishonesty to both her supervisor and the employer's owner clearly evinced a willful and substantial disregard of the employer's interests and of the standards of conduct that the employer had a right to expect of her and was so serious as to constitute misconduct within the meaning of the above.

For these reasons, the commission affirms the appeal tribunal decision as written.

cc: Harbor Suites - De Pere, WI



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uploaded 2006/11/27