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

MICHAEL C KIEPER, Employe

PIT STOP QUICK LUBE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98001756WU

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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately seven months, last performing services as a temporary manager for the employer, a quick change oil service. He was discharged from his employment on March 19, 1998 (week 12).

The issue to be decided is whether the employe's discharge was for misconduct connected with the employe's employment.

The employe was discharged as a result of negligence. He had received warnings in the past from the employer for his conduct.

The employe was discharged by the employer's district manager because the employe failed to follow proper procedures, in that he neither checked the oil or started the engine to determine if there was oil pressure. As a result, a customer left the employer's establishment, drove about 10 miles, and her engine was destroyed because there was no oil in the engine.

The employe asserted that he had followed the proper procedures relative to oil changes at the employer's establishment, and believed that possibly the oil filter was installed incorrectly causing the vehicle to lose oil. The evidence tends to suggest that the employe forgot to add oil or check the vehicle after the filter was changed and the oil drained. He had received other warnings about his forgetfulness and failing to reinstall oil caps.

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 compensation 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 asserted that the employe's negligence, after warnings for similar incidents of forgetfulness, amounted to misconduct connected with his work. The commission agrees. The employe had been disciplined in the past for such things as forgetting to replace the oil cap. While this kind of thing might be considered ordinary negligence the employe was or should have been on notice to be careful and to follow all the employer's procedures. The employe testified that when changing the oil, he was to put oil in, put the cap back on, and start the car. The car is then shut off, and the employe is to pull the dip stick, checking for oil and other fluids. The employe indicated in addition that workers are to write down how much oil is used in the car. The employe not only failed to put in oil, but failed to start the car, and check the oil light, or to check the dip stick. As a result, the employer's customer's engine was destroyed, and the customer had to be paid $4,800 for repairs to the engine. The commission concludes that the employe's carelessness in this case was such that it showed an intentional and substantial disregard of the employer's interests, and amounted to misconduct connected with his work.

The commission therefore finds that in week 12 of 1998 the employe was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for weeks 12 through 13 of 1998, and weeks 16 through 35 of 1998, amounting to a total of $2,340.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1), Stats. Pursuant to Wis. Stat. § 108.22(8)(a), Stats., the employe is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 12 of 1998, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $2,340.00 to the Unemployment Reserve Fund. The benefit payments for weeks 12 through 16 of 1998 were withheld as a forfeiture. Since benefits are now denied for those weeks, those payments cannot be applied to the forfeiture. The amount restored to the forfeiture balance is $318.00. The employe is required to repay $2,340.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account

Dated and mailed: September 18, 1998
kiepemi.urr : 145 : 1 MC 663

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who believed that the employe was not discharged as a result of the oil filters he removed from the trash, but as a result of his failure to put oil in a car. The ALJ believed that the employe sounded credible with regard to his testimony about changing the oil in the car. The commission does not disagree with the ALJ's credibility assessment, and notes that the ALJ found that the employe failed to put oil in the customer's car. However, the commission concludes that the employe's actions in this regard amounted to misconduct, for the reasons set forth in its decision.

cc: PIT STOP QUICK LUBE

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