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

LINDA M BOLDT, Employee

BROADWAY BABY OF WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07603502MW


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 for approximately six months as a bartender and bar manager for the employer, a dinner theater and bar. Her last day of work was May 7, 2007 (week 19).

The initial issue to be decided is whether the employee quit or was discharged.

On May 7, 2007 (week 19), the employer was discussing the employee's job duties and job performance with the employee. The employee was unhappy with the employer's comments and criticisms. As their conversation continued, the employer told the employee that employer did not trust the employee. The employer asked the employee to give her the business keys. The employee gave the keys to the employer and left.

The commission has previously held that a demand that an employee turn in a key is tantamount to a discharge absent clarification from the employer or extenuating circumstance that would lead to another reasonable interpretation of such demand. See Stone v. Wild Goose Station, UI Dec. Hearing No. 06002272BD (LIRC Sep. 29, 2006); McClain v. Robert Peeple & Associates, UI Dec. Hearing No. 06600969MW (LIRC April 28, 2006); Kоеnіngѕ v. Соmmеrсіаl Wеаthеr Ρrооfіng Services Inc., UI Dec. Hearing No. 03004661WK (LIRC March 5, 2004); Valentine v. Currie Park Service Center, UI Dec. Hearing No. 01611974MW (LIRC Jan. 30, 2003); Livingston v. L & D Trading Post, Inc., UI Dec. Hearing No. 02200117EC (LIRC June 13, 2002); Eiler v. Shoney's Restaurant, UI Dec. Hearing No. 01402295AP (LIRC Oct. 26, 2001).

In Stone, the manager directed the employee to punch out and leave her keys because the coworker, who would be closing that night, did not have a key for the towels which needed to be left out for the daily cleaning job. In McClain, the employee was told to turn in his key and that he would not be permitted to work until he spoke to the owner. In Valentine, the employer requested the keys because the employee was going to be off work for an extended period of time. There was no such clarification in this case or extenuating circumstance that would lead one to place a different interpretation on the employer's demand. The commission therefore concludes that the employer discharged the employee.

The next issue to be decided is whether the employer discharged the employee for misconduct connected with her work for the employer.

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 employer had a number of areas of dissatisfaction with the employee. The employee admitted that she had forgotten to follow through on planning certain events. However, the employer did not demonstrate that the employee's failures were the result of willful conduct in disregard of the employer's interests. The employer may have made a valid business decision to discharge the employee, but it did not establish that it discharged the employee for misconduct connected with her work for the employer.

The commission therefore finds that in week 19 of 2007, the employer discharged the employee but not for misconduct connected with her work for the employer 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 19 of 2007, if she is otherwise qualified.

Dated and mailed October 18, 2007
boldtli . urr : 132 : 1 : VL 1007.01  MC 626

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The ALJ did not impart any demeanor impressions she had that led to her decision. The commission has accepted the ALJ's finding that the employer asked the employee for the key.

The commission notes that its rules provide, at Wis. Admin. Code § LIRC 1.04, that review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. For this reason, the commission cannot consider factual assertions made in the petition for review, or documents submitted with the petition for review, which were not also made or submitted at the hearing. Since the commission's review must therefore be based on the evidence submitted at the hearing which has already been held, the commission will not address or consider the factual assertions made by the parties which are not supported by the record.


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