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

RYAN K REED, Employee

SOURCE ENVIRONMENTAL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07400625AP


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 ten months as a delivery truck driver for the employer, an environmental remediation and hazardous material transport business.

The employment relationship ended on October 27, 2006.

The issue is whether the separation was a quit or a discharge, and whether it occurred under circumstances which would permit the payment of benefits.

Some time in the middle of October of 2006, the employee advised the employer that he was searching for other employment. This did not constitute a notice of resignation.

The employee was not scheduled to work on October 27 but stopped by the office to pick up something he had inadvertently left there.

At that time, the employee's supervisor and the supervisor's son had an exhibit at the convention center which was unrelated to the employer's business.

The supervisor was scheduled to play golf so, when the employee stopped in to the office on October 27, he requested that the employee go to the convention center and break down and transport the exhibit.

The employee declined because he was not on work status that day, and because he did not believe that it was appropriate to ask him to do this personal service for the supervisor.

The supervisor told the employee to leave the work site and not return.

The separation under consideration here occurred as a result.

The first question is whether this separation was a quit or a discharge. The commission has consistently treated a separation resulting from alleged insubordination, as well as a separation precipitated by an employer directive to leave and not return to the work site, as a discharge, and there is no persuasive reason not to do so here.

The next question is whether the employer sustained its burden to prove that this discharge was for misconduct.

Generally, refusal to follow a reasonable employer directive is misconduct. White v. ARA Cory Refreshment Services, UI Hearing No. 03600041MW (LIRC May 9, 2003).

Here, however, the employer's directive was not a reasonable one and the employee was justified in not fulfilling it. Although it is generally an employer's prerogative to determine what duties need to be performed and to assign them to individual workers, as well as to determine how employer resources are to be allocated (see, Mitchell v. Metro Caster LLC, UI Hearing No. 06604157MW (LIRC Nov. 3, 2006)), this general rule would not extend, under the circumstances present here, to supervisory directives to employees who are not on work status; and directives which are issued not by an official with sole authority to determine how employer resources are to be allocated but instead by an individual supervisor, for a personal, non-business purpose.

The employer also failed to prove through competent evidence its other allegations of misconduct.

Although the employer's witness, a vice president, testified as to the October 27 incident; as to previous failures by the employee to properly label containers of hazardous materials; as to a no call/ no show absence; and as to a refusal by the employee to take a drug test, the record does not show that the vice president had any first-hand knowledge of these matters, and they are disputed by the employee.

The commission therefore finds that in week 43 of 2006, the employee did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7) but that he was discharged and his discharge was not for misconduct 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 43 of 2006, if otherwise qualified.

Dated and mailed July 30, 2007
reedrya . urr : 115 : 1   MC 640.03

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing her decision, because its reversal was not based upon a differing view as to the credibility of witnesses based upon their demeanor, but instead upon a differing conclusion as to what the competent evidence of record in fact established, as well as upon a differing interpretation of the relevant law.

 

cc:
Ryan K. Reed (Lansdowne, VA)
Source Environmental (Denver, CO)


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