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

KEVIN J DAVIS, Employee

BEST WESTERN-MILWAUKEE AIRPORT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08608337MW


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 two months as a setup worker for his employer, a hotel. His last day of work was August 6, 2008 (week 32), when he was discharged.

On the employee's last day of work, he had one main task to accomplish which his supervisor estimated would take less than three hours to complete. The employee was to set up the ballroom. The supervisor looked for him in the ballroom on three occasions and he was not there and the assignment was not completed. Around 8 a.m., she saw him outside on the phone. Around 11 a.m., the maintenance man reported that he saw him outside on the phone. The supervisor then warned the employee to get the job done. At 12:30 p.m., the maintenance man reported that he had found the employee sleeping in the closet. The work was not completed and the employee's shift ended at 1 p.m. The employee was discharged for failing to do his work and sleeping on the job.

The issue to be decided is whether the employee was discharged for misconduct connected with his 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 employee explained that he did one hour of work on a two hour job but that it was all he had to do that day and if he had finished it all at once, he would not have had anything else to do.

The employee's explanation does not excuse his conduct. The employee was warned about the importance of completing the job. He was not in the ballroom on three occasions and still had not completed the work by 12:30. The employee himself admits that it could be completed in much less time than he had available. He was on notice that the failure to complete the assignment placed his job in jeopardy. His failure to complete his assigned task after explicit warnings showed a deliberate and intentional disregard of the standards of behavior that the employer had a right to expect.

The commission therefore finds that in week 32 of 2008, the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the total amount of $2,451.00; during weeks 43 of 2008 through week 12 of 2009, for which the employee was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1), and pursuant to Wis. Stat. § 108.22(8)(a), the employee is required to repay that sum to the Unemployment Reserve Fund.

Wisconsin Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment 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 employee is ineligible for benefits beginning in week 32 of 2008, 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. The employee is required to repay $2,451.00 to the Unemployment Reserve Fund.

This decision also results in an overpayment of federal additional compensation (FAC) benefits that must be repaid. You will receive a separate "UCB-25 Notice of Federal Additional Compensation Overpayment" regarding the amount of FAC benefits that must be repaid.

Dated and mailed March 31, 2009
daviske . urr : 178 : 6 MC 657  

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

 

MEMORANDUM OPINION

The commission discussed witness credibility with the ALJ prior to reversing. The ALJ did not have any specific demeanor impressions which influenced his decision. As discussed above, the commission considers that the employee was on notice concerning what the employer expected of him and he deliberately disregarded those expectations.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


 

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