SHEILA M CHESTER, Employee

LYDIA GROUP HOME INC, Employer

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:

The employee worked for approximately eight months as a manager for the employer, a youth group home. Her last day of work was June 10, 2008 (week 24). At that point, the employee was laid off for lack of work. Her date of discharge was June 27, 2008 (week 26).

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

The employer has several facilities. Prior to June 2, 2008 (week 23), the employee was assigned to work at the Lydia II facility. On June 2, 2008 (week 23), the employer met with the employee and told her that she was being reassigned to a different facility, Lydia I, for retraining. During this meeting the employer specifically instructed the employee not to return to Lydia II. After the meeting, the employee returned to Lydia II to pick up her personal belongings and give the facility keys to another worker. The employee did not intend to disobey the employer's directive, but believed that she was being told she could not return to the facility to work in the future. The employee did not realize that the employer did not want her to stop by after the meeting to pick up her personal belongings. The employee indicated that there were no children at the facility at the time to see that she had returned assuming the employer's motive was a desire not to disrupt the children because of the staff change.

It was the employee's position that her discharge was not for misconduct as she did not realize, when she was instructed not to return to Lydia II, that this meant that she could not pick up her personal items from the facility or give the keys to the worker at the facility. The commission agrees.

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 employee in this case honestly believed that she had been instructed not to return to work at Lydia II. The employer did not request her keys to that location at the time of the meeting, nor did it advise her how to retrieve her personal belongings. Because of her reasonable interpretation, that she was not to return to work at the Lydia II, the employee did not intentionally violate the employer's directive. There is nothing in the record to suggest that the employer was transferring the employee from Lydia II because of, for example, inappropriate behavior by the employee toward a resident or co-worker at Lydia II which would have made it clear to the employee that she could not return to the facility briefly for the sole purpose of dropping off her keys and picking up her personal belongings. Further, the commission notes that the employee had been put on a lay off on June 10, apparently without any specific recall date and was not discharged until June 27. Generally, a worker who is laid off indefinitely is discharged for unemployment insurance purposes, although there is not enough information in the record for the commission to make that determination in this case.

The commission therefore finds that in week 26 of 2008, the employee was discharged but that her discharge was not for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 26 of 2008, if otherwise qualified.

Dated and mailed January 23, 2009
chestsh . urr : 145 : 1 MC 640.03

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ did not believe that there were many facts that were in dispute. The employee and the employer agreed that she returned to Lydia II in spite of being told that she should not return. The ALJ did not doubt that the employee had a reason to return, but believed that the employee should have made other arrangements for the return of the keys and the retrieval of her property. The commission believes that the employee was caught off guard by the situation, believed she was no longer to work at Lydia II but did not understand that she could not return for the purpose of turning in her keys and retrieving her personal belongings.

cc: Attorney Larry Johnson

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uploaded 2009/02/03