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

DEBORAH J OLSON, Employee

FAMILY & CHILDRENS CENTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07003208LX


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 the employer, an in-home counseling service, for five years as a psychotherapist. Her last day of work was May 29, 2007 (week 22).

In February and March of 2007 the employee received reprimands for paperwork errors. In the first instance, the employee failed to update certain outdated paperwork, which resulted in a loss of authorization and required the employer to write off part of the cost of services. In the second instance the employee unwittingly worked with a family for two weeks with an outdated prescription for services.

The employer requires that discharge paperwork explaining the course of treatment that was provided and whether goals have been achieved be completed within ten days after the completion of services. The discharge papers are not related to the employer's payment for services, but affect the employer's reputation with the referring agency. On March 29, 2007, the employee stopped treating a client, but failed to prepare the appropriate discharge paperwork. The employee did not submit the paperwork until asked to do so by the employer in late May.

The employee offered several explanations as to why the discharge paperwork was not submitted. She stated that she did complete the paperwork, but did not print it out or turn it in to anyone because she believed there was a good chance the county would continue to fund in-home services for the family. The employee testified that, after the completion of services she remained in contact with the county and with the family. The employee also stated that she was training a new person and spending a lot of time with that individual. Finally, the employee mentioned that she had issues working with the computer.

On May 29, 2007 (week 22), the employee was discharged for failing to complete paperwork. The issue to be decided is whether the employee's discharge was due to misconduct connected with her employment.

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."

The employer contended that the employee's failure to timely complete paperwork evinced misconduct. The commission disagrees. While it is clear that paperwork was not the employee's strength, the employee credibly testified that she was making efforts to improve in this area, and the commission is persuaded that she took her job seriously and wanted to succeed. The final incident of procrastination was negligent on the employee's part, but not the result of intentional malfeasance or indifference to the job.

The commission recognizes that the employee had prior reprimands for paperwork errors. However, the prior errors were unrelated to the final error, and although the employee knew the employer expected her to generally improve in the preparation of her paperwork, she was not on notice that failure to prepare timely discharge documents, a matter which had no financial ramifications for the employer, would be regarded as sufficiently serious as to cost her her job. Given all the circumstances, the commission believes that the employer may have made a valid business decision to discharge an employee with whose work it was dissatisfied, but that the employee's actions fell short of wilful misconduct, as defined in Boynton Cab, cited above.

The commission, therefore, finds that in week 22 of 2007, the employee was discharged and not for misconduct connected with her employment, 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 22 of 2007, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed December 21, 2007
olsonde . urr : 164 : 1   MC 657

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

 

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The commission's reversal is not based upon any differing credibility assessment.

 

cc: Deborah J. Olson


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


uploaded 2008/01/02