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

JENNIFER E MCFARLANE, Employee

WINDSOR WISHING WELL PRESCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06003956MD


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 during 30 days as a teacher of toddlers and two-year olds for the employer, a pre-school. Her last day of work was August 25, 2006 (week 34).

The employee was hired and placed on a 90-day probationary period during which her performance was evaluated and critiqued by the employer and her co-workers. The employee disliked working in the toddler room, so the employer transferred the employee to the two-year-old classroom. The employee complained that the other two-year-old teacher was not doing enough work. On August 15, 2006, the employer counseled all workers about the use of their cell phones while working. The employee was observed using her cell phone during work hours the next day. On August 24, the employee and the other teacher had an argument, and the employee was yelling at the other teacher. The employer's owner broke up the dispute and the employee complained about the other two-year-old teacher. In addition the employee explained that she did not like changing the children and it was the same children that needed changing over and over again. The owner informed the employee that changing the children was part of her job. The owner helped the employee settle the children and get them to sleep. The children were crying. On August 24, the employee was counseled again about her interaction with the children, their parents and her co-workers. The owner sent the employee home before the end of her shift. The owner asked the employee whether she had used her cell phone at work after a meeting but the employee denied doing so. The employee returned to work on August 25 and indicated she was annoyed about being sent home the prior day. The employee said she did not want to work in the two-year-old room. The employer said she had been moved once and there was no other classroom to put her in. On August 25, 2006, she was discharged from her employment because she was hostile and because the employee had lied to the employer about the cell phone use. The employer determined that she was still not changing the children's diapers. The employer believed that, given the employee's position, it was imperative that she be able to trust the employee.

The issue to be decided is whether the employee's discharge was for 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 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 employer argued that the employee was discharged for misconduct connected with her work. The commission agrees. The workers had been informed, at an August 15, meeting that they were not to use their cell phones while working. In spite of this, the employee used her cell phone while she was supposed to be working. The employer asked the employee about personal cell phone use while working and the employee lied to the employer about the incident. The employer explained why it was imperative that she be able to trust that what the workers told her was true. In addition, the employee engaged in an argument with the lead teacher, and yelled at the lead teacher, while in the presence of the children. This resulted in disruption of the employer's operations, including one worker leaving for the day. The employee did not appear at the hearing to explain any of her actions. The employee's actions, in lying to the employer, yelling at a co-worker in front of the children, and informing the employer that she did not want to change the children's diapers amounted to such a willful and substantial disregard of the employer's interests as to constitute misconduct connected with her work.

The commission therefore finds that in week 34 of 2006, the employee was discharged 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 employee is ineligible for benefits beginning in week 34 of 2006, and until four weeks have elapsed since the end of the week of quitting and the employee employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. There is no overpayment as a result of this decision.

Dated and mailed January 26, 2007
mcfarje . urr : 145 : 1  MC 630.07 MC 696 MC 669

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing his decision. The commission did not reverse the ALJ's decision based on a different assessment of witness credibility and demeanor. The commission notes that the testimony in this case was undisputed as there was only one witness at the hearing. The commission reverses the ALJ's decision because it reached a different legal conclusion when applying the law to the facts in the record.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: Windsor Wishing Well Preschool (Windsor, Wisconsin)


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2007/01/29