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

JASON M SKELTON, Employee

SILLIKER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07002089MD


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, except that it makes the following modifications:

Under the FINDINGS OF FACT AND CONCLUSIONS OF LAW, replace paragraph 6 with the following paragraph:

"Unsatisfactory job performance, while a reasonable basis for the dismissal of an employee, does not constitute misconduct for unemployment compensation purposes unless there is some evidence that the employee acted with deliberate disregard for the standards the employer expected of the employee or, in the alternative, the employee acted with a very high degree of negligence. Lazarus v. Aurora Health Care, Inc., UI Decision Hearing No. 96605552MW (LIRC January 8, 1997); Rayford v. Medical College of Wisconsin, Inc., UI Decision Hearing No. 07601076MW (LIRC July 20, 2007)."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 13 of 2007, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed October 18, 2007
skeltja . umd : 135 : 1  MC 660.01  MC 664

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee worked approximately three years as a microbiologist for the employer, a food-testing lab. The employee was discharged on March 30, 2007 for continued errors and omissions in his work.

The first error that resulted in a warning occurred on December 28, 2006 when the employee failed to verify he was performing the correct tests on correct samples. The next warning issued on January 25, 2007 was for the employee's failure to complete housekeeping assignments two weeks in a row. These failures resulted in another technician performing the employee's duties to ensure the lab quality systems did not fail. On February 21, 2007, the employer issued another warning to the employee for failing to identify the correct controlled tests that he was to run. This warning resulted in a 3-day suspension and the employee was placed on probation for 60 days. The warning also noted that the employer met with the employee in an attempt to reduce the number of his error rates. Additionally, the employee was cited for failing to perform his housekeeping duties for the previous week. On March 29, 2007, the employee failed to verify that the numbers on samples he was going to run matched the correct client control samples. When the employee reported to work on March 30 he was discharged.

In cases involving unsatisfactory job performance, misconduct is not found unless there is some evidence that the employee acted with deliberate disregard for the standards the employer expected of the employee or, in the alternative the employee acted with a very high degree of negligence. Lazarus v. Aurora Health Care, Inc., UI Decision Hearing No. 96605552MW (LIRC January 8, 1997). The employee argues in his brief that there has been no proof that he deliberately violated the employer's standards which were expected of him as a microbiologist. Rather, the employee asserts that his mistakes were human errors often made during long shifts which included voluntary overtime. The employee argues that essentially he was discharged for "four mistakes in four months" which according to the employee's calculation amounts to a "99 percent accuracy rate."

The commission acknowledges that the misconduct standard for unsatisfactory job performance cases was articulated in Lazarus, supra, but the commission is satisfied that Lazarus, supra is distinguishable from the employee's case.

Here, the employee was warned on two separate occasions regarding his failure to perform housekeeping assignments. The commission is satisfied that the employee's failure to consistently performing housekeeping duties, after warning, constitutes a deliberate disregard of the employer's standards that the employer had a right to expect of the employee as a microbiologist.

In regard to the employee's errors, the commission notes that the employee had demonstrated a satisfactory job performance on a consistent basis prior to the four month period the employee references in his brief. Furthermore, the employee did repeat similar errors after being warned and counseled on his unsatisfactory job performance. The evidence establishes the employee failed to make a serious and consistent effort to improve his unsatisfactory job performance in the areas in which the employer provided frequent counseling and warning. For these reasons, the commission is satisfied that the evidence meets the misconduct standard articulated in Boynton Cab Co. v. Neubeck & Ind. Comm.,237 Wis. 249 (1941) and elaborated in Lazarus, supra.

cc:
Silliker, Inc. (Madison, Wisconsin)
Paul Burant


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