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


JUDE D WISNIEWSKI, Employe

NORSE BUILDING SYSTEMS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98201312MW


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about one and one-half years as a plumbing foreman for the employer, a manufacturer of modular homes. His last day of work was July 23, 1998 (week 30).

In April of 1998 the employe received a warning for unsatisfactory performance and attendance. The employe received a warning for not appearing for work on May 30. He did not appear for work on May 30 because he had worked 18 hours on May 29. On July 17 or 18 the employe made an error by installing the wrong colored sink. On July 20 and July 21 the employe was absent with notice to the employer. On July 21, the vice-president of operations gave the employe permission to work nights and to appear for work late on July 22. On July 22 he arrived at 3:30 p.m. At about 5:30 the vice-president of operations told the employe that he did not want the employe working nights. He was given permission to leave a couple hours early but left after working two hours that night. The employe was given permission to leave a couple hours early on July 23 and did so. The employe called the employer on July 24 and July 27 and left voice mail messages that he would not be reporting to work because his mother was in the hospital. When he appeared for work on July 28 he was discharged.

The issue to be decided is whether the employe was discharged for misconduct connected with his work.

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 employer testified that it did not receive a message from the employe on July 20 or 21. However, the employer conceded that it had problems with its answering machine and it was possible that the employe called in. While the employer testified it received calls from co-workers, there was no testimony as to when these calls were received in relation to when the employe called in. The employer also testified that it had no record of the employe calling in on July 24, however, the employer further testified its records did not accurately reflect the events of July 24, so it did not know whether the employe called in. The employe testified that he did in fact notify the employer of his absences. Given the employer's testimony that it did have problems with its answering machine and the employer's testimony that based on its records it did not know whether the employe called in, the commission finds that the employer failed to establish that the employe was absent without notice.

The employe's performance was not always acceptable to the employer. Further, the employe did leave earlier than he was given permission to on one occasion and failed to give proper notice of his absence on May 30. However, the employer's decision to discharge the employe was made after he allegedly repeatedly failed to give notice that he would be absent. The employer did not establish that the employe was a no call/no show on the other dates alleged. While clearly the employe was not a model worker, overall his performance and attendance did not rise to the level of a willful and substantial disregard of the employer's interests.

The commission therefore finds that in week 31 of 1998 the employe was discharged from his employment but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 31 of 1998, if he is otherwise qualified.

Dated and mailed: January 11, 1999
wisniju.urr : 132 : 1 MC 605.05

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the administrative law judge. The administrative law judge found the employe's testimony that he called in to be self- serving. However, given the employer's conceded problems with its answering machine and records, the commission finds no compelling reason to reject the employe's testimony.


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