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

CHRISTOPHER B DENMON, Employee

DEBOER TRANSPORTATION INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07000898MD


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed August 3, 2007
denmoch . usd : 150 : 1   MC 665.01

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employer petitioned the appeal tribunal decision arguing that the employee's repeated failure to make deliveries as scheduled constituted misconduct connected with the employment. The commission has carefully reviewed the lengthy record in this matter, including the warnings that the employee received prior to discharge. Over the 13 months of the employee's work for the employer he received five warnings, one of which included a one week suspension. Of those warnings, the employee conceded that he was at fault in two of the service failures but disputed any fault in the remaining three. Similarly, the employee argued that he did not mismanage his time in the last series of deliveries with the final load to be completed on or about February 5, 2007. The employee also denied actually accepting that final load. While the employer argued that the employee mismanaged his time, it did not actually produce a copy of the employee's logs for the deliveries to establish the failure. Additionally, after the failure, the employer allowed the employee to work for another week before discharging him. The commission considers a delay in discharging a worker to be a factor in deciding whether an employer establishes that certain conduct rises to the level of misconduct. Collins v. Milwaukee Public School, UI Dec. Hearing No. 06601902MW (August 23, 2006). A review of these circumstances, results in the commission's conclusion, like the ALJ's, that the employer's complaints present the picture of a less than model employee, an employee for whom the employer may have made a valid business decision in discharging; however, the commission affirms the no misconduct finding, based upon its assessment that the evidence presented does not establish that the discharge was for misconduct as that phrase has been defined in Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941).

The appeal tribunal decision is, therefore, affirmed.



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uploaded 2007/08/06