Wis.LIRC UC Decision: Liddle, Brian - August 14, 2009 - MC 610 - - Competition, complaint, disloyalty, relations w. patrons - Misconduct found where, after warning, the employee improperly closed and transferred a customer seeking to speak with a supervisor instead of notifying the supervisor and transferring the call to directly to the supervisor - PC 714.10 Evidence, Medical Evidence - insufficient to establish that medical condition caused the employee's behavior.

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

BRIAN W LIDDLE, Employee

APAC CUSTOMER SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09400988GB

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 6 of 2009, 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.

Dated and mailed August 14, 2009
liddlbr . usd : 115 : 5 MC 610 PC 714.10

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee worked most recently for six years as a customer services representative for the employer, a call center.

On November 26, 2008, the employee was issued a final warning for becoming impatient with a customer, voicing this impatience by stating "Jesus" or "Jesus Christ," and then hanging up on the customer. The customer filed a complaint with the employer as a result of the employee's actions. The final warning stated that:

Immediate and consistent improvement is necessary or further corrective action up to and including termination from APAC Customer Services will be taken. Brian needs to make sure he maintains a professional demeanor and displaying appropriate demeanor on the phones at all times.

The final warning form indicated that the next step in the disciplinary process would be termination.

On February 2, 2009, the employee handled a call from a customer who was not satisfied with the information provided by the employee and asked to speak to a supervisor.

The procedure for handling such a request, with which the employee was familiar and which he had employed in the past, required that the customer service representative place the customer on hold, walk over to a supervisor's work station and explain the situation to the supervisor, walk back to the representative's work station, and transfer the call to the supervisor.

Instead, the employee, as he admits, "closed off the call," pushed the call transfer button on his phone; and dialed the four-digit code which transferred the call to a client call center in New Jersey. The employee did not alert a supervisor that this had occurred.

The employee claims this was a mistake, and not an intentional act on his part. The ALJ did not find this credible, and the commission agrees.

The employee was aware that the customer had asked to speak to a supervisor, but implemented no part of the required process. If, for example, the employee had walked over to a supervisor's work space and summarized the situation and then, after returning to his phone, had pushed the wrong code and transferred the call to the client call center rather than the supervisor, it would be plausible for this to have been a mistake. But here, the employee never made a move to walk over to a supervisor, but instead closed out and transferred the call. Although the employee testified that he immediately realized he had made a mistake, he made no effort to bring this to the attention of a supervisor. Instead, the employer learned of it when the customer complained.

The employee claims that he was suffering from anxiety and depression at the time. However, there is no competent medical evidence in the record establishing that the employee's actions on February 2 were the direct result of his medical condition. See, Dennis v. Midwest Products & Engineering, Inc., UI Hearing No. 00608243MW (LIRC Oct. 2, 2001); Nedland v. Nedland Industries, Inc., UI Hearing No. 99201248RL (LIRC March 8, 2000). Moreover, the employee testified that he was on medication on February 2 which ameliorated the symptoms of his health condition.

The employee had received a final warning just over two months earlier for improperly handling a difficult customer call. On February 2, the employee intentionally and improperly closed out and transferred a difficult customer call. Both of these incidents resulted in customer complaints to the employer. The employee engaged in misconduct, i.e., in an intentional and substantial disregard of the employer's interests within the meaning of Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941).

In his petition, the employee takes issue with the employer's failure to permit him to listen to the tape of the February 2 call or to offer this tape at hearing. The employee also points to the employer's witness's failure to recall certain details of the call. However, the employee does not dispute that he closed the call, improperly transferred the call, and did not alert a supervisor to the customer request, the facts relied upon to find misconduct.

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