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

CHARISMA Q QUINN, Employee

CHILDREN'S PANTRY FAMILY RESOURCE
CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09605631MW


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 three years as a bus driver for the employer, a child care facility. She was discharged on April 27, 2009 (week 18).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with her employment.

The employer's work rules (exhibit # 3) state as follows:

When loading and unloading children off the bus, the bus must be parked...The assistant must sit in the rear of the bus, behind the last child seated. At the start of the unloading, the assistant starts at the rear of the bus and works their way up to the front doing a head count out loud...The driver is to remain seated on the bus until the last child and assistant is off....

The driver shall do a complete walk through before he or she exits the vehicle after his or her route....The driver is responsible to know the whereabouts of the children being transported from the time a child is picked up to the time a child is relinquished to the responsible caregiver. ...

The employee received the handbook in which these rules are set forth on June 11, 2007. In addition, these rules were discussed frequently with staff, and were the subject of a staff meeting on April 26, 2009, the day before the incident at issue here. The employee testified that "the employer drummed into us every chance they had that we were to make sure we knew where all the kids were."

On April 27, 2009, the employee and her assistant had picked up each child on their morning transportation roster and were proceeding to the employer's facility. The assistant, who was required to ride in the back of the bus, was sitting instead in the middle of the bus so she and the employee could talk to each other.

The employee received a call from the employer advising her that, due to planned servicing of the vehicle, instead of driving the bus to the back of the facility that day, she should drive it to the front.

The employee left the bus running when she reached the employer's facility, got off the bus, helped the children off the bus, lined them up near the building, and walked them into the facility.

The employee, contrary to the required procedure, did not remain in her seat while the children were taken off the bus by the assistant, check the bus to make sure there were no children left on the bus, or check the roster to make sure all of the children's names had been checked off as having been taken off the bus.

The mechanic who had been waiting for the bus to take it for servicing drove the bus away from the facility, but returned a few minutes later because a
three-year-old who had been belted into a child seat in the back of the bus, had been left on the bus.

The employee and her assistant were both discharged for this incident.

Since the record does not show that the employee had reason to be aware her job would be in jeopardy for a single violation of the employer's transportation policy, the question becomes whether her actions were sufficiently egregious to constitute misconduct in the absence of warning.

The commission concludes that they were.

A similar situation was addressed by the commission in McNeil v. Lakeside Buses of Wisconsin, Inc., UI Hearing No. 03600639MW (LIRC September 25, 2003). In that case, the commission held:

The commission concludes, based on the potentially serious effect of a driver's failure, upon finishing a route, to check to make sure that no children remain on the bus, and the employee's clear understanding of the employer's work rule in this regard and the consequences for violating it, that this single failure by the employee is sufficient to sustain a finding of misconduct. The commission has previously held that a single act by an employee which creates a real possibility of serious injury to others may support a finding of misconduct. See, e.g., Raleigh v. IFE, Inc., UI Hearing No. 99200063HU (LIRC June 7, 1999); Washington v. LIRC and Meritus Education Resources Co., Case No. 97-CV-010214 (Milw. Co. Cir. Ct., May 15, 1998) (misconduct found for a single incident of sleeping where employee responsible for a class of four- and five-year-old children).

As in McNeil, the employee here was subject to very rigid requirements, reasonably justified by the nature of her responsibilities as well as the employer's licensing strictures, and the potential consequence of her failure to abide by these requirements could be tragic for a child and his or her family, and calamitous for the employer.

There was no compelling or even persuasive reason for the employee to ignore her responsibilities on April 27, the day after the employer had again reminded her of them. There was no reasonable justification for the assistant, whose activities were directed by the employee, to be sitting in the middle seat of the bus rather than the back seat as required; for the employee to have exited the bus while the children were being take off rather than remain in her seat as required by the employer's work rules; or for the employee not to have checked the bus and the roster after the children were off the bus.

The employee failed to follow the required procedures on April 27, which she concedes the employer had "drummed into her" every chance it had; had no reasonable justification for this failure; and the consequence for this failure was the neglect of a three-year -old child.

This is misconduct.

The commission therefore concludes that the employee was discharged in week 18 of 2009 for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $6,666 for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1), and that the employee is required, pursuant to Wis. Stat. § 108.22(8)(a), to repay this amount to the Unemployment Reserve Fund.

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, within the meaning of Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See Wis. Stat. § 108.22(8)(c).

The commission further finds that department records do not show that the employer failed to provide correct and complete information requested during the department's investigation of this matter within the meaning of Wis. Stat. § 108.04(13).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 18 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. The employee is required to repay the sum of $6,666 to the Unemployment Reserve Fund.

The initial Benefit Computation (Form UCB-700), issued on May 1, 2009, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

This determination 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 January 7, 2010
quinnch . urr : 115 : 5 MC 657 MC 675

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.


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uploaded 2010/01/08