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

SHARRON S GLENN, Employee

GEORGE WATTS & SON INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07600643MW


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a retail store, for six years as a housekeeper. Her last day of work was April 27, 2006 (week 17).

The employee's performance evaluations reflect that, during the course of her employment, her work was generally considered to be somewhere between "average" and "needing improvement." Although in her first year of employment she received ratings that were between "average" and "good," the employer never expressed a high level of satisfaction with the quality of the employee's work.

The employee's most recent evaluation, which was issued in April of 2006, indicated that she was not performing her duties properly and gave her unsatisfactory ratings in several areas. On April 21, 2006, the employee was given a final warning and told she had a week in which to improve. When no improvement was noted, the employee was discharged on April 27, 2006 (week 17).

The issue to be decided is whether the employee's discharge was due to misconduct connected with her employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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 because of unsatisfactory job performance. The commission has held that unsatisfactory job performance, while a reasonable basis for the dismissal of an employee, does not constitute misconduct for unemployment compensation purposes unless there is some evidence that the employee acted with deliberate disregard for the standards the employer expected of him or, in the alternative, with a very high degree of negligence. Lazarus v. Aurora Health Care Inc. (LIRC, Jan. 8, 1997). Here, there is no evidence to suggest that the employee acted with deliberate disregard for the employer's standards or that she wilfully neglected her duties. The employee testified that she thought she was doing a good job, and the commission is not persuaded that she understood her work was falling short of the employer's expectations or that she was capable of significant improvement. While the record suggests that the quality of the employee's work may have deteriorated slightly towards the end of her employment, the fact remains that the employer had tolerated substandard work for many years. Under the circumstances, the commission is satisfied that the employee did the job as well as she could, and it does not find that her failures evinced deliberate disregard of her duties or the degree of negligence that would amount to misconduct.

The commission, therefore, finds that in week 17 of 2006, the employee was discharged and not for misconduct connected with her employment, 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 17 of 2006, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed May 30, 2007
glennsh . urr : 164 : 1 MC 660.01   MC 664

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

 

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge identified credibility problems with both parties. He indicated that the employer's witnesses had a difficult time agreeing on what the standards were and that it appeared they were making things up. The administrative law judge also indicated that the employee's credibility was questionable based on her denials of having signed evaluations and her testimony that maybe the employer put dust back in an area after she dusted it. While the commission agrees that the suggestion the employer deliberately messed areas up after the employee cleaned them strains credulity, it nonetheless finds credible the employee's essential testimony that she believed she did her job well.


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