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

JOANN E SUKKERT, Employee

WAL MART ASSOCIATES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09609354MW


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a retail store, for over twelve years, most recently as a department manager. Her last day of work was August 28, 2009 (week 35).

The employer has a policy which states it will not tolerate harassment, violence, or threats of violence. The policy prohibits, among other things, striking, punching, slapping, pushing, or assaulting another person.

On August 27, 2009, the employee and a cashier were having a dispute about a personal matter. The employee attempted to confront the cashier, but the cashier turned and walked away. The employee grabbed the cashier's arm and told her she needed to listen to what the employee had to say. The cashier did not pull away. The employee said her piece, then walked away. The cashier subsequently complained to the employer, and the employee was discharged.

The issue to be decided is whether the employee's discharge was due to misconduct connected with her employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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 was discharged for engaging in unwanted physical contact when she grabbed one of the cashiers by the arm. The employee did so in order to get the cashier's attention. The employer's policy prohibits striking, punching, slapping, pushing, or assaulting another person, but does not specify that all physical contact will be grounds for discharge. The employee did not intend to harm the cashier, and was unaware that her actions could cost her her job. She had worked for the employer for twelve years, with no history of discipline for similar conduct. While her actions may have evinced poor judgment, the commission believes they fell short of wilful misconduct.

The commission, therefore, finds that in week 35 of 2009, the employee was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 35 of 2009, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed April 8, 2010
sukkejo . urr : 164 : 1 MC 670

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge did not find credible the employee's testimony that she "gently" grabbed the co-worker's arm, given that the employee was upset at the time. However, the co-worker was not present, and the employee's characterization of the incident went unrebutted. There was no evidence presented to suggest that the employee intended to harm the co-worker.


cc: Wal-Mart Associates, Inc. (Franklin, Wisconsin)


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