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

TRAVIS C GOSSE, Employee

MARCHANT SCHMIDT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08003816FL


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 four years as a metal finisher for the employer, an original equipment manufacturing business. He last worked for the employer on July 21, 2008 (week 30). Department records show that he opened an unemployment claim on July 31, 2008 (week 31). The department calculated his weekly benefit rate on that claim at $355.

The initial issue is whether the employee quit or whether the employer discharged him from employment.

On July 21, 2008, the production manager reprimanded the employee for leaving a note on a piece of equipment that joked about the equipment's poor condition. The employee thought the supervisor was blowing the matter out of proportion and at the end of his shift, he left a note requesting time off on July 22, 23, and 24. The request stated he would return to work on Monday, July 28, unless the employer notified him of work for Friday or Saturday. The production manager received his request on July 22, and approved the time off.

On the evening of July 22, 2008, (week 30), the employee went to a bar for happy hour, and had some beers and shots. He then left a message for the employer that said he was not going to take this anymore and he would show the employer, by taking time off work. When the employee reported for work on July 28 (week 31), the employer told him that it deemed his July 22 message to have constituted a resignation. The employer did not allow him to return to work.

The employee argued that he did not quit, but rather had been discharged. The commission agrees. The employee had no intention of quitting and did not quit by word or by deed. He did not walk off the job, but was on leave approved by the employer. Nothing about his July 22 voice message reasonably could be interpreted as an express resignation or any indication that he would not be returning to work on July 28 as he previously said he would. Under the circumstances, the employee did not quit. The employer discharged him on July 28, (week 31), when it refused to allow him to return to work.

In general, a discharged worker is eligible for unemployment benefits unless discharged for misconduct connected with the employment. Accordingly, the issue is whether the employer discharged the employee for misconduct connected with the employment.

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 commission is persuaded that the employee intended his message to convey his feelings to the employer, specifically the he did much of the work, and that he was not happy with his supervisor for making what the employee considered a trivial incident, which was essentially a joke, into a big deal. Further the employee intended his message to explain that he was going to show his displeasure with the supervisor by taking his paid time off at that point. While the employee's comments were ill advised, they did not amount to such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with his work. The commission therefore finds that in week 30 of 2008, the employee did not voluntarily terminate his work with the employer, within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 31 of 2008, the employer discharged the employee but not for misconduct connected with his work, 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 31 of 2008, if otherwise qualified

Dated and mailed December 23, 2008
gossetr . urr : 145 : 6  MC 626  MC 668

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ was persuaded that the employee left a hostile message in part because the employer had two witnesses who heard the message and considered it to be hostile. The commission disagrees with the credibility impression of the ALJ. The employer did not have the answering machine message to play at the hearing. While two of the employer's witnesses considered the message threatening, the commission notes that it was the employer's position that the employee quit. Neither of the employer's witnesses indicated it would have absolutely discharged the employee for the message, but would have disciplined him, and would have considered whether discharge was appropriate. Had they considered his message seriously threatening, the commission believes that the employer would have wanted to discharge him.

 


 

ANN CRUMP, Commissioner (dissenting):

I respectfully dissent from the majority opinion. I would defer to the ALJ with respect to witness credibility and demeanor. The employee was admittedly angry with his supervisor for disciplining him for leaving a disrespectful note on a piece of machinery. He was so angry that he took the next five days off work. Two of the employer's witnesses testified that the tone of the message was hostile, and that the employee said the employee was "fucking sick of the bullshit and was going to teach the [employer] a lesson." The employee admitted that prior to leaving the message he had gone to the bar and had drunk six beers and six shots, which is a substantial amount of alcohol, and as such, his recollection was likely to be less accurate than that of the employer. As such, I would affirm the ALJ and find that the employee had been discharged for misconduct connected with his work.

__________________________________________
/s/ Ann L. Crump, Commissioner

 


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