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

WALTER F GARTNER, Employee

CARVER YACHTS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06402091GB


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 about three years most recently as a component installer for the employer, a yacht builder. His last day of work was July 31, 2006 (week 31).

The first issue to be decided is whether the employee quit or was discharged.

On March 9, 2006, the employee had a heart attack while at work. Following his heart attack, he was on a leave of absence until June 5, 2006. On June 5, he returned to work without restrictions. After the employee returned to work, a supervisor told him that he, like other employees, was required to work overtime hours. The employee initially worked some overtime but on or about July 20, 2006, he notified his supervisor that he would not work overtime because he was too tired when he worked overtime and he could not do his cardiac rehabilitation exercises after he got home from work. The supervisor asked the employee if he had any doctor's statement saying that he could not work overtime. The employee said that he did not. The supervisor told the employee that he was required to work overtime and, if he did not, he would be disciplined for leaving before his scheduled hours of work were completed.

The employee left work early and did not work the overtime hours of work on July 20, 21, 24, 25, and 26, 2006. He did not work the overtime that he was scheduled to work on July 22, 2006. The employee was absent due to illness and with notice to the employer on July 27 and 28, 2006. For the hours of work the employee missed the employer completed "Absenteeism ("80 Hours") Reports. The reports contain preprinted language that using "80 hours" of absenteeism for reasons not set forth in the employee handbook may result in discipline up to and including termination. The employee had missed 35 hours of overtime work.

On July 31, 2006, the employer notified the employee that his employment was ending because he refused to work overtime. At that time the employer completed paperwork which it indicated constituted the employee's verbal, first written, final warning, and termination.

The employee presented certified evidence at the hearing that, at the end of his employment, he was unable to work more than 40 hours per week.

The employee did not voluntarily terminate his employment. The employer made the decision to terminate the employee because he would not work overtime.

The next issue to be decided is whether the employee was discharged for misconduct connected with his work for the employer.

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's refusal to work overtime could be viewed as insubordination. However, the employee had medical reasons for his refusal to work overtime. The employer clearly did not accept the employee's self assessment of his abilities. The employee should have obtained a medical statement from his doctor which verified his inability to work overtime. However, since the employee had his heart attack at work he believed the employer knew of his condition and should understand his unwillingness to overtax himself. Further, the employer did not impose progressive discipline in this case that would have alerted the employee that his employment was in imminent jeopardy. The commission has also considered such lack of discipline when concluding that the employee did not voluntarily terminate his employment. It is not clear why the employer acted when it did. The employee may have had other absences that were considered in the "80 hours" of absenteeism, but that is not apparent from the record. Finally, the employer discharged the employee after he had been absent for two days due to illness and with notice to the employer.

The commission therefore finds that in week 31 of 2006, the employee was discharged but not for misconduct connected with his work 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 31 of 2006, if he is otherwise qualified.

Dated and mailed December 28, 2006
gartnwa . urr : 132 : 8 :   MC 658  MC 640.12

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ described the employee as someone who looked in good physical shape. The ALJ did not doubt that the employee was serious about his rehabilitation and really believed that he was tired. The ALJ's assessment was that the employee was being stubborn in not obtaining a medical excuse because the employer knew he had a heart attack and that should have been enough. For the reasons set forth above, the commission disagrees with the ALJ's conclusion that the employee voluntarily terminated his employment and finds the employee eligible for benefits.


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