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

BRIAN O WILSON, Employee

SITEL CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06003101MD


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 eight months as a customer service representative for the employer, which operates a call center. He last worked for the employer on June 30, 2006 (week 26), when it discharged him from employment. Department records show that he started an unemployment benefit claim effective in the following week.

Generally, a discharged worker is eligible for unemployment benefits unless discharged for misconduct connected with the employment. Accordingly, the issue is whether the employer discharged the employee for misconduct connected with the employment.

The employee's duties included assisting customers with garage door opener questions. He signed an acknowledgment that if he failed to provide customers with a scripted disclaimer that he could be immediately discharged. The employer drafted the disclaimer to alert customers to potential damage that could occur to their garage door during the troubleshooting process and to prevent it.

Shortly before the employee's last day of work, the employer received notice from its client that a customer had filed a garage door damage claim. Upon investigating the matter, the employer learned that the employee had assisted the customer on June 19. Upon reviewing a recording of that call, the employer discovered that the employee directed the customer to disconnect a "down limit" on the opener, but failed to read the required disclaimer. That disclaimer would have alerted the customer that disabling the limit meant that the opener would not automatically stop operation and that damage could result unless the customer was prepared to stop the opener with either the remote control or wall button. When the employee then directed the customer to activate the garage door opener, it did not stop and forced the door into the floor causing damage to the door. The employer then discharged the employee for violating its policies.

The issue to be decided is whether the employee's discharge was for misconduct connected with his 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 insurance 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 employee was discharged following a single incident in which he failed to give a disclaimer while troubleshooting a customer's garage door opener problem. Single instances of ordinary negligence generally do not amount to misconduct, even in instances where property damage results. The employer made a reasonable business decision to discharge the employee for violating its policy. However, misconduct is not established.

The commission therefore finds that in week 26 of 2006, the employee was discharged by the employer, but that this discharge was not for misconduct connected with the employee's 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 beginning in week 26 of 2006, if he is otherwise qualified.

Dated and mailed December 15, 2006
wilsobr . urr : 178 : 8   MC 660.01  MC 689

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility prior to reversing. The commission accepts the findings of the ALJ but reaches a different conclusion when applying the law to those facts.

cc: Sitel Corp. - Madison, WI


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uploaded 2006/12/15