OMER SHAIK, Employee

ANDERSON CLEANING SYSTEMS, Employer

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, it has reviewed the evidence submitted to the ALJ, and has consulted with the ALJ. Based on its review, the commission makes the following:

The employee worked for approximately seven months as a laundry and cleaning worker for the employer, a janitorial contracting business. His last day of work was October 14, 2006 (week 41). Prior to October 14, 2006, the employee had been warned to work his hours as scheduled.

On Saturday, October 14, 2006, the employee reported to work approximately one and one-half hours prior to his newly scheduled start time. When his supervisor questioned his appearance at work, the employee became upset and threatened the supervisor stating, "You mess with me again and I'm going to get even with you." He then directed a vulgarity at the supervisor and walked out into the hallway at the client business. The supervisor immediately contacted the employer's general manager by telephone. The general manager spoke with the employee by telephone and directed him to leave the property; he was suspended for three days pending investigation and was directed to contact the general manager on October 17, 2006. The employee left the property with another cleaning worker.

On October 17, 2006, when the employee contacted the general manager, he was discharged. The employee argued and the phone call ended abruptly.

Department records reflect that the employee initiated a claim for unemployment insurance benefits on December 26, 2006 (week 52), reporting that he had been laid off from the employer on October 17, 2006 (week 42). The employee has been paid benefits totaling $810.00 for the calendar weeks ending December 30, 2006 (week 52) through January 27, 2007 (week 4).

The first issue to be decided is the nature of the separation and whether the employee is eligible for unemployment insurance benefits.

The employee contended his discharge was not for misconduct connected with his employment. Specifically, he denied any improper behavior on October 14, 2006. The employer petitioned the appeal tribunal decision arguing that the employee directed vulgarity and threats towards his supervisor on the 14th and was immediately suspended for three-days for investigative purposes. The employer further contended that the employee's behavior led to his discharge on the 17th and the discharge was for misconduct connected with the employment. The employee's contention cannot be sustained. A suspension that is imposed not for punishment or discipline but pending investigation is not a disciplinary suspension for good cause within the meaning of Wis. Stat. § 108.04(6). Tober v. Reinhart Retail Group No. 1 Inc., UI Dec. Hearing No. 03202471MW (LIRC July 16, 2004).

At the hearing in this matter, the employee and employer's witnesses provided conflicting versions of the events. The employee denied any use of vulgar or threatening language with the supervisor, instead arguing that he calmly left when directed to do so by the supervisor. He asserted that when he later reported to work as scheduled, he only spoke with the general manager by telephone and was suspended. Yet, the employer's explanation that, after the employee's confrontation with the supervisor, the supervisor telephoned the general manager who then immediately suspended the employee is more plausible and, thus, the commission credits the testimony of the supervisor and the general manager. Additionally, like the administrative law judge, the commission does not credit the employee's denial of vulgarity directed at the supervisor. 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). Under these circumstances, the commission finds that the employee's argumentative, threatening and vulgar language directed at the supervisor evinced a wilful and intentional disregard of the employer's interests and of the standards of conduct that the employer had a right to expect.

Since the employee's discharge was for misconduct connected with his employment, he was not entitled to the $810.00 in unemployment insurance benefits that he was paid and the next issue before the commission is whether the employee is required to repay the overpaid benefits.

There is no evidence of employer fault in the erroneously paid benefits. Instead, one week of benefits was initially paid based upon the employee's characterization of his separation as a layoff and, then, benefits were denied by the determination finding that the discharge was for misconduct. Later, benefits were allowed by the appeal tribunal decision. The overpayment was created when the commission reached a differing legal conclusion as to whether the employee's discharge was for misconduct connected with the employment. Thus, there is no departmental error, and repayment of benefits is required.

The commission therefore finds that in week 42 of 2006, the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $810.00 for weeks 52 of 2006 through 4 of 2007 for which the employee was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1) and he is required to repay the amount of overpaid benefits to the unemployment insurance fund as waiver of benefits recovery is not applicable under Wis. Stat. § 108. 22(8)(c).

The appeal tribunal decision is modified to confirm with the above findings and, as modified, is reversed. Accordingly, the employee is ineligible for benefits beginning in week 42 of 2006, 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 $810.00 to the Unemployment Reserve Fund.

Dated and mailed May 11, 2007
shaikom . urr : 150 : 1  MC 640.05  MC 640.15

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

NOTE: The commission did consult with the administrative law judge regarding witness credibility and demeanor prior to deciding to reverse the appeal tribunal decision. The ALJ indicated that although she believed the employee directed vulgarity at the supervisor; she did not believe that he overtly threatened him. The ALJ did not impart any demeanor impressions upon which the findings were based but instead related her opinion as to the relative plausibility of the employee's and the employer's version of events. However, for the reasons stated above, the commission concludes that the employee not only directed vulgarity at but also threatened his supervisor when confronted about his reporting to work early. It further finds that the employee only left after speaking with the general manager, at which time the employee was suspended pending further review of the matter.

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 employee 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.

 

FURTHER 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.

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uploaded 2007/05/15