STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
RAYMOND A VAN CLEVE, Employe
MEMORIAL COMMUNITY HOSPITAL ASSN INC, Employer
UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96005663JV
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 approximately seven years as an operating room surgical technician. The employe's last day of work was October 28, 1996 (week 44), after which he was discharged from his employment.
One of the employe's responsibilities as a surgical technician involved the sterilization of instruments and equipment. The employe was discharged when it was discovered during an audit that the proper sterilization had not been documented. The employe also had been warned about following proper sterilization procedures in 1995 and was told that any further violations could be cause for suspension and/or immediate termination.
The issue for decision is whether the employe was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04 (5). 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 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 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 discharged the employe for his negligence. The administrative law judge however concluded that there was no clear pattern of negligence since the employe's violations of the sterilization policy did not involve similar types of conduct. In addition, the administrative law judge noted that substantial time had lapsed between the employe's two sterilization related errors. Furthermore, the administrative law judge noted that based upon the employe's conduct and demeanor at the hearing, the employe was incapable of performing error free work as was expected of him by the employer.
The employer, however, contends that the employe's errors constituted misconduct. The commission agrees. The commission concludes that the employe's failures were negligence of such degree to manifest equal culpability as a deliberate violation or disregard of the standards of behavior the employer has a right to expect, thus establishing misconduct as defined in Boynton Cab Co., supra. For obvious reasons, the duties of a surgical technician require a level of accuracy that many jobs do not require; work related mistakes in few other jobs carry the same degree or level of consequences as that of a surgical technician.
The commission therefore finds that in week 44 of 1996 the employe was discharged for misconduct connected with his work within the meaning of Wis. Stat. § 108.04 (5).
The commission further finds that the employe was paid benefits in the amount of $7,252 to which he is not eligible and to which he is not entitled to within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a) the employe is required to repay such sum to the Unemployment Reserve Fund.
The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04 (13)(f), the over-payment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.
DECISION
The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 44 of 1996 and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The initial benefit computation (form UCB-700) issued on October 29, 1996 is set aside. If benefit payments become payable on other employment, a new computation will be issued as to those benefit rights. The employe is required to repay the sum of $7,252 to the Unemployment Reserve Fund.
Dated and mailed October 31, 1997
vanclra2.urr : 135 : 5 MC 660.01
/s/ Pamela I. Anderson, Chairman
/s/ David B. Falstad, Commissioner
MEMORANDUM OPINION
The commission conferred with the administrative law judge regarding his credibility impressions of those who testified. The commission does not disturb any credibility findings made by the administrative law judge. This reversal is as a matter of law. The commission believes that the employe's two acts of negligence were of such degree so as to establish misconduct as defined in Boynton Cab Co., supra. Consequently, the commission concludes that the employe's discharge was for misconduct connected with his employment.
cc : MEMORIAL COMMUNITY HOSPITAL ASSN
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