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


ARLENE M JACOBS, Employe

ABSOLUTELY BEAUTIFUL CLEANING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97608102MW


On November 29, 1997, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 45 of 1997 the employe was discharged for misconduct connected with her employment. As a result, benefits were denied. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On February 12, 1998, the appeal tribunal issued a decision which affirmed the initial determination. The employe filed a timely petition for commission review of the appeal tribunal decision.

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 the employer, a cleaning business, for approximately one year as a cleaner. Her last day of work was November 5, 1997 (week 45).

On October 23, the employe's supervisor and the owner of the employer met with the employe to discuss various areas of dissatisfaction with the employe's performance. During this meeting the owner showed the employe a handwritten memo which indicated that the employe was not to leave notes for clients involving work-related issues. Next to that comment and with an arrow pointing to it, the employer wrote that failure to comply would be cause for immediate dismissal. The note also indicated that if the employe locked herself out of an account she should call the employer and, further, that the employer wanted to devise a system where the employe could talk directly with her supervisor. In response to the latter notation, the employe's supervisor asked the employe to call her every Friday at 4:00 p.m. to discuss what was happening at work. The employe agreed to do so.

On October 29 the employe wrote the employer's owner a letter complaining about her supervisor. In this letter the employe indicated that she had been very happy working for the employer before the new supervisor arrived, but that she considered the supervisor heartless and autocratic, with a need to demean others and bend them to her will. The employer received the letter on October 30.

On Friday, October 31 the employe failed to contact her supervisor at 4:00 p.m., as she had been directed to do. The employe, who was not scheduled to work on that day, was on her way home from Madison, but was held up due to unexpected road construction and did not arrive home until 5:00 p.m. The employe attempted to contact her supervisor when she returned home, but got no answer. She did not leave a message on the supervisor's answering machine.

On November 7, 1997 (week 45) the employer handed the employe a termination notice and told her to turn in her keys. The question to decide is whether the employe was discharged for misconduct.

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."

At the hearing the employer contended that the employe was discharged because she failed to contact her supervisor on October 31. The employer also asserted that the October 29 letter was a factor in the decision to discharge the employe. However, the termination notice which the employer presented to the employe contains no reference to her failure to contact her supervisor on October 31 or to the October 29 letter from the employe. Where an employer has given the employe specific reasons for the discharge, the employer is precluded from advancing other reasons in an attempt to later justify the discharge. Marine National Exchange Bank v. DILHR and Jenkins, Dane County Circuit Court, Case No. 148-328 (May 24, 1976). The termination notice which the employe received indicates that the employe was discharged for the following reasons: "not willing to take supervision," "not willing to follow requests," "avoids meetings," "low access availability," and "does not display professionalism on premises." While the items listed in the termination notice are vague and perhaps were intended to include the letter and the failure to call in, it is not clear from the record that the reasons articulated at the hearing were the actual reasons for which the employe was discharged.

Assuming that the reasons articulated at the hearing were, in fact, the reasons for discharge, the commission nonetheless does not believe that misconduct was established. Although the employe failed to contact her supervisor as scheduled on October 31, the employe explained that she was unable to do so because of unforeseen circumstances and, further, that she did attempt to contact the supervisor at a later time. Consequently, the commission sees no reason to believe that the employe deliberately ignored the employer's directive. The commission also questions the reasonableness of the employer's requirement that the employe contact her supervisor on her day off in order to discuss work-related issues, and does not believe that a failure to abide by this requirement could be considered misconduct. Finally, the employe had not been warned that failure to contact her supervisor could result in the loss of her job.

The commission also does not believe that the employe's actions in sending the October 29 letter to the employer amounted to misconduct. While the letter included some rather dramatic descriptions of her supervisor's management style, there was nothing inherently offensive or threatening about it, and it was directed to the owner of the business rather than to the supervisor herself. Workers are entitled to complain, and the commission does not believe that the employe's actions in strongly expressing her opinions to the owner of the company were undertaken in wilful or substantial disregard for the employer's interests.

The commission, therefore, finds that in week 45 of 1997 the employe was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits as of week 45 of 1997, provided she is otherwise qualified.

Dated and mailed: October 15, 1998
jacobar.urr : 164 : 6  MC 610.06  MC 665.01

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not consult with the administrative law judge regarding witness credibility. The commission's decision to reverse is not based upon any differing assessment of credibility, but is as a matter of law based upon essentially the same set of facts as that found by the appeal tribunal.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]