HENRY V KIRKSEY, Employee

ALTERRA COFFEE ROASTERS INC, 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, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

The employee worked for about 18 months as a production baker for the employer in its food service business. His last day of work was on March 15, 2007 (week 11).

On March 9, 2007, the employee made six personal telephone calls. Afterwards, his supervisor, the bakery manager, attempted to discuss the matter with him because his personal calls violated the employer's policy. The employee explained that his 12-year-old son was at home, alone, and he had to check up on him. The employer then prepared a written warning for the violation that would have allowed him to make two personal calls daily during a two-week period while the employee attempted to find a solution to the situation with his son. On March 13, 2007, the supervisor met with him to discuss the written warning and the two-week relaxation of the rule. The employee was upset because he believed he had been given what he believed was a verbal warning about the telephone calls, and then given another warning several days later, when he had not made any phone calls in between. The employee then indicated it was "bullshit" and walked away. The employee was not scheduled to work on March 14, and when he reported to work on March 15, 2007, the employer discharged him for insubordination and disrespect toward the manager.

The issue to be decided is whether the employee's discharge was for misconduct connected with his work.

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 employee's actions, in using a swear word when he spoke to his supervisor certainly warranted some form of discipline. However, the employee was upset about what he considered to be unfair discipline. While his choice to use a swear word was blameworthy, his comment that "this was bullshit" was made as he was walking away from his supervisor. Further, it was not established that the employee had been warned about the use of foul language in the past. Under the circumstances, the employee's actions did not amount to such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 11 of 2007, was discharged but the discharge was not for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 11 of 2007, if otherwise qualified.
Dated and mailed July 30, 2007
kirkshe . urr : 145 : 1   MC 640.05  MC 640.06  MC 640.15

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ noted that as this was a telephone hearing there were no real demeanor issues. The ALJ indicated that the employee believed it was important that he check on his son. The ALJ also pointed out that this was a close case, in part because the employee was not simply chatting on the phone, but had what the employee considered a good reason for making the calls. The ALJ also indicated that while the employer stated that the employee made excessive phone calls to check on his son, the employer did not have any evidence to establish how many phone calls the employee actually was making to his son. Further, while the ALJ thought the employee was intransigent and would have continued to call his son no matter what, the employer never gave him the opportunity to stop making the calls as it fired him for his comment. The commission agrees that this was a close case, and found the employee to be credible about what happened on the last day of work in part because the employee had no prior history of failing to obey instructions or flying off the handle.

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uploaded 2007/07/31