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

MATTHEW D BEEMAN, Employee

RAY ALDERMAN & SONS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11601734RC


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits in week 5 of 2011, if otherwise qualified.

Dated and mailed August 4, 2011
beemama : 172 : 1 :  MC 662 : MC 663

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision. The employer contends that the employee's negligence in operating its vehicle amounts to "extreme disregard," which should be deemed misconduct.

The commission noted in Cairns v. TTC Illinois Inc, UI Dec. Hearing No. 00200102EC (LIRC Apr. 7, 2000):

The employer correctly notes that the definition set forth in Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), does not specifically state that the negligence of the employee must be "gross" to be misconduct. However, it is clear from that definition that the negligence must be significantly more than ordinary negligence. The level of negligence necessary to constitute misconduct is that which manifests wrongful intent or evil design or shows an intentional and substantial disregard of the employee's duties and obligations to the employer. Pijan v. Menards Inc., UI Dec. Hearing No. 98200207EC (LIRC Jun. 25, 1998); William J. McKibbin v. LIRC, Marten Transport, Ltd., and R.E. Harrington, Inc., No. 94-CV-0213 (Wis. Cir. Ct. Dane County Dec. 23, 1994); aff'd. William J. McKibbin v. LIRC, Marten Transport, Ltd., and R.E. Harrington, Inc., No. 05-0234 (Wis. Ct. App. Feb. 29, 1996, unpublished). The courts have stated that it is a reasonable interpretation of "misconduct" to conclude that a recurrent pattern of negligent acts, so serious as to amount to gross negligence and thereby evince an intentional and substantial disregard of the employer's interests, is necessary to find misconduct. See, McGraw Edison v. ILHR Department, 64 Wis. 2d 703, 221 N.W.2d 677 (1974); Fitzgerald v. Globe-Union, Inc., 35 Wis. 2d 332,151 N.W.2d 136 (1967).

The employer argues that the employee admitted that he was distracted and but for the employee's "inaction to maintain the vehicle, the accident would not have happened." The employer also argues that the accident endangered the employee's safety and the safety of others. The employer relies on McGraw Edison v. ILHR Department, 64 Wis. 2d 703, 221 N.W.2d 677 (1974) to support its contention.

All vehicle accidents involve some degree of endangerment to someone. The accident was a single isolated incident. The employee did not intend for the vehicle to go onto the shoulder of the road. Nor did the employee intend for the vehicle to skid across the roadway, rollover, and land in the ditch facing the opposite direction. Although the damage to the vehicle and its contents was significant, the employee's actions were not intentional. The employee's conduct must be more than ordinary negligence to rise to misconduct under the statute. Where negligence is concerned, the question of misconduct is a question of degree of the employee's intent and culpability. Here the employee's negligence was not of such a degree that it manifested wrongful intent or evil design.

Accidents in which the employer suffered significant damage to equipment and products may justify terminating that employee. While one act of carelessness or neglect may rise to "gross" negligence, as held in McGraw-Edison Co., here, the accident, while perhaps preventable, did not show that the employee's actions were an intentional and substantial disregard of the employer's interests. Ordinary negligence, without harmful intent, is not misconduct.


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