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


DAVID M RYBA, Employe

PALMISANO & BAAKE PRODUCE CO, INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98602774MW


On April 4, 1998, the Department of Workforce Development issued an initial determination which held that the employe was discharged, but not for misconduct connected with his employment. As a result, benefits were allowed. The employe filed a timely hearing request and a hearing was held before an appeal tribunal. On May 18, 1998, the appeal tribunal issued a decision affirming the initial determination. As a result, benefits were allowed. The employer has filed a timely petition for commission review. In its petition the employer maintained that it was unable to bring a key witness to the hearing due to unforeseeable circumstances. The commission, therefore, remanded the matter for further hearing in order to give the employer an opportunity to present evidence establishing good cause for its failure to bring its witness to the hearing and to elicit testimony from the witness with respect to the merits of the case.

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 for the employer, a produce wholesaler, for about nine months as a truck driver/delivery person. His last day of work was March 13, 1998. He was discharged on March 15, 1998 (week 12).

The employe's job duties included delivering produce to customers and unloading the produce on the customers' premises. During the course of his employment the employe generated complaints from customers about his rude and uncooperative manner. On at least one occasion the employe was ordered to leave a customer's store due to his unacceptable conduct. On February 2, 1998, the employer warned the employe that impolite behavior to customers would not be tolerated, and on February 19, 1998, the employe was again advised that he was to be polite and courteous to customers. The employe was notified at that time that if the employer received any further customer complaints he would be discharged.

On or about March 13, 1998, a retailer contacted the employer and complained that the employe failed to deliver a load of produce to it. The employe misread the name of the retailer, and accidentally delivered the load to the wrong store. Once the employe learned of his error he went back and picked up the misdelivered order and brought it to the proper customer.

On the same day, the employer received a separate complaint from a customer who indicated that the employe had refused to help it unload produce. The employe told the customer that it was not part of his job description to unload the truck and, further, that he could not lift anything because he had injured his finger. Although the employe had a lifting restriction which prevented him from unloading the heavier boxes of produce, the majority of the load consisted of boxes of greens weighing approximately 20-25 pounds, well within his doctor's restrictions. The employe offered no assistance with these boxes, but stood nearby eating and smoking while another employe of the employer and the produce manager for the employer's customer unloaded the truck.

On March 15, 1998 (week 12), the employer discharged the employe based upon the customer complaints. The issue to be decided is whether the employe was discharged due to misconduct connected with his 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 employe exhibited a pattern of rude and uncooperative behavior towards the employer's customers and had been specifically warned that further customer complaints would result in the termination of his employment. Nonetheless, only a month after receiving this final warning, the employe deliberately and belligerently refused to unload a shipment of produce for a customer, when to do so was part of his job and would not have required him to exceed his medical restrictions. The commission believes that the employe's actions in this regard demonstrated such a wilful and substantial disregard for the employer's interests as to rise to the level of misconduct, within the meaning of the law.

The commission therefore finds that in week 12 of 1998, the employe was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in weeks 12 through 51 of 1998 in the total amount of $8,568, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum 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 employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 12 of 1998 and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $8,568 to the Unemployment Reserve Fund.

Dated and mailed: January 7, 1999
rybada.rev : 164 : 5  MC 610.25

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The evidence adduced at the remand hearing demonstrated that the employer made reasonable arrangements to secure the appearance of its witness prior to the original hearing, but on the day of the hearing the witness was unable to appear due to illness. Based upon these circumstances, the commission determines that the employer had good cause for its failure to bring the witness to the original hearing and has considered the testimony of that witness, which was presented upon remand.

The commission conferred with both administrative law judges regarding the credibility and demeanor of the witnesses in this matter. The administrative law judge who conducted the original hearing indicated that he found the employe totally incredible, but did not believe misconduct was established because the employer failed to bring its key witness. The administrative law judge who conducted the remand hearing and heard the testimony of the witness in question, stated that he did not believe that witness would have any motive to lie and that, all things being equal, he credited the employer's witness over the employe. The commission's reversal is not based upon a differing assessment of credibility, but is based upon a consideration of all the evidence in the record, including the additional witness testimony presented on remand.


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