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

DON R MUELLER, Employee

RUAN TRANSPORT CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09004659WR


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 almost ten years as a truck driver for the employer, a trucking business. He was suspended without pay on July 16, 2009 (week 29), pending investigation of the events of that day. The employee was then discharged on July 20, 2009 (week 30).

Following the discharge, the employee initiated a claim for unemployment insurance benefits. On September 6, 2009 (week 37), after the determination was issued but before an appeal tribunal hearing in the matter, the employee was reinstated without back pay pursuant to a grievance. Department records reflect that the employee filed for and received unemployment insurance benefits of $363 plus $25 FAC for weeks 30 through 36, the calendar weeks ending July 25 through September 5, 2009.

The event leading to the discharge occurred on July 16, 2009. In particular, on that day, the employee drove a tanker semi truck to a client chemical plant to pick up a load of hydrochloric acid. The employee had years of experience in transporting hazardous materials for the employer and had special training on the handling, loading and transportation of such materials approximately one month before July 16. On the 16th, the employee noticed there were new lines at the client business and assumed that the vapor line had been changed to a different color. Although he should have asked to confirm his assumption, he did not; instead he simply hooked up the hose to what he believed was the vapor recovery hose. The effect of his behavior was that an acid vapor cloud was released, an alarm was activated and the client had to temporarily stop work with approximately 200 workers moved to waiting areas until the all clear was given.

The initial determination found that the employee's discharge was not for misconduct connected with his employment. The appeal tribunal decision modified the issue to that of a disciplinary suspension. The appeal tribunal modification was proper; specifically, where facts show that a discharge has been rescinded and the employer has treated the employee's period of unemployment as a period of disciplinary suspension, the employee's eligibility for benefits is properly analyzed pursuant to Wis. Stat. sec. 108.04(6), "Disciplinary Suspension." Zahn v. Land O' Lakes Inc., Hearing No. 04200322WU (LIRC June 29, 2004). Hall v. Milwaukee Transport Services, Inc., v. LIRC and Cornelius Hall, UI Hearing No. 05603339MW (LIRC Jan. 11, 1996), aff'd sub nom. Milwaukee Transport Services Inc. v. LIRC and Cornelius Hall, Case No. 96 CV 000989 (Milw. Co. Cir. Ct., Aug. 21, 1996).

Wis. Stat. Section 108.04(6) provides:

(6) Disciplinary suspension. An employee whose work is suspended by an employing unit for good cause connected with the employee's work is ineligible to receive benefits until 3 weeks have elapsed since the end of the week in which the suspension occurs or until the suspension is terminated, whichever occurs first. This subsection does not preclude an employee from establishing a benefit year during a period in which the employee is ineligible to receive benefits under this subsection if the employee qualifies to establish a benefit year under s. 108.06 (2) (a).

The first issue to be decided is whether the suspension of the employee's employment was a disciplinary action for good cause.

The good cause is a lower standard than that for misconduct and may encompass a single isolated incidence of poor judgment or negligence on the part of an employee. Voeltner v. Consolidated Freightways Corporation of Delaware, UI Dec. Hearing No. 91400173AP (LIRC May 5, 1992). The commission finds that the employee's isolated negligence was sufficient to constitute good cause for the suspension beginning in week 29 of 2009. He therefore was ineligible for the benefits that he received in weeks 30, 31 and 32 of 2009.

The next issue to be decided is whether the overpayment of benefits to the employee was due to department error or was partially or wholly because of the employee's actions and whether the department is required to waive recovery of any portion of that overpayment.

If the employer is not at fault in the erroneous payment of unemployment insurance benefits, repayment of those benefits is waived if the overpayment was due to department error and without fault on behalf of the claimant. See Wis. Stat. § § 108.04(13)(c) and 108.22(8)(c). Further, 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.

In this case, there is no evidence of employer fault in the erroneously paid benefits. Instead, when the employee initially filed for benefits, the issue was one of misconduct; at the time of the hearing, the issue changed as explained above and the standard also changed. The erroneous payment was then created because the employee's actions were sufficient to constitute good cause for a disciplinary suspension. Thus, while there is no evidence of employee fault, there is also no departmental error, and repayment of benefits is required.

The commission therefore finds that in week 29 of 2009, the employee's employment was suspended as a disciplinary action for good cause connected with that work, within the meaning of Wis. Stat. § 108.04(6).

The commission further finds that employee was paid benefits in the amount of $1,089.00, for which he was not eligible and to which he was not entitled, within the meaning of section 108.03(1) of the statutes and that waiver of the 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 department error.

DECISION

The appeal tribunal decision is modified to conform with the above, and, as modified, is affirmed. Accordingly, the employee is ineligible for benefits in weeks 30 through 32 of 2009. The employee is required to repay the sum of $1,089.00 to the Unemployment Reserve Fund. This determination also results in an overpayment of federal additional compensation (FAC) benefits that must be repaid. The claimant 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 22, 2010
muelldo . urr : 150 : 1 MC 676.2 BR 335.04

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission has written its own decision in this matter to clarify the effect of the grievance on the employee's unemployment benefit claim and to provide a more detailed explanation of the overpayment issue and findings.

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.I. 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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uploaded 2010/01/26