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


NANCY L CHRISTOPHERSEN, Employe

RAMADA INN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98200935EC


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about one year as a sales coordinator for the employer, a hotel business. Her last day of work was June 12, 1998 (week 24), when she was discharged by the employer.

The issue which must be decided in this case is whether the employe's discharge was for misconduct connected with her employment.

In mid-May the employe spoke with her boss, the director of marketing and sales, about quitting. She had received an offer of work for another employer, which she showed to her boss. It was resolved that the employe would not quit, and that she would receive a raise in mid-June. On June 4, the employe told her boss again that she was quitting, and they discussed what had occurred that week, and it was agreed that there would be better communication and the employe would not quit.

On Monday, June 8, 1998 (week 24), the employe arrived at work at 8:15 a.m. She signed out at 8:42 because her son was ill. The employe did not return until 12:30 p.m. The employe had an appointment at 9:00 a.m. with a cable company, the job she had been offered and discussed with her boss, about working there. She went to that business for an hour and a half, and then took her son to an 11:00 doctor's appointment. She took her son home and returned to work. The employer's personnel heard a couple of days later that the employe had been to work at the other business. When questioned about it, the employe said she had been there 15 minutes. The employe was discharged for accepting a job at another company, leaving the employer while she was still working for it to work for the other company, and lying to the employer, as well as problems with accuracy and having too many personal phone calls at work.

There may have been problems with the employe's accuracy, and the employe may have received an excessive number of personal phone calls, however, the employe was given no formal warning that her actions in this regard were unacceptable. With regard to leaving work and stopping at the other employer, the commission cannot conclude that the employe's discharge was for misconduct. The employe received a call at work regarding her son. The employe did schedule a doctor's appointment for him, as he was evidently on new medication for asthma which caused him to throw up. She went home, made a doctor's appointment for him, and then went to the other employer with the intention of telling it she did not wish to accept the offered work. She did not, as the employer believed, perform any work for the employer. In addition, she did care for her son, and take him to the doctor. Certainly the employe should have informed her boss that she was not only going to take her son to the doctor, but that she was going to stop at the other employer. However, the employe had not been evasive about the potential job offer in the past. She informed the employer that she was looking for other work, and in fact, showed her boss the job offer and discussed it with him. In addition, the employe's supervisor would make and receive calls at the employer regarding her work for another employer. Further, she would work on the other employment during her lunch hour, and would leave the employer's premises to work on that other employment. Thus, it would not have been obvious to the employe that the employer would consider her stopping by another employer so serious as to warrant her discharge, particularly when she refused a job offered by that employer. Under the circumstances, the employe's actions did not evince such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 24 of 1998, the employe was discharged but that the discharge was not for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 24 of 1998, if otherwise qualified. There is no overpayment with respect to this issue.

Dated and mailed: October 19, 1998
chrisna.urr : 145 : 6  MC 605.09  MC 630.07

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not confer with the ALJ regarding witness credibility and demeanor because the facts were basically not disputed. The employe left work because her son was ill, and in addition to taking her son to the doctor, stopped at potential employer. The employe's actions amounted to an isolated instance of poor judgment, and while the employer may have made a valid business decision when it discharged her the commission cannot conclude that the employe's discharge was for misconduct connected with her work.

cc: RAMADA CONFERENCE CENTER


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