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

RACHELLE L REED, Employee

KIO MANAGEMENT CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11003578MD


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 for approximately three years as a laborer for the employer, a fast-food restaurant. She was discharged on June 27, 2011 (week 27).

The issue to be decided is whether the employer discharged the employee for misconduct connected with her work for the employer.

The employee was discharged for three outbursts at work occurring on April 11, June 26, and June 27, 2011.

In the first outburst the employee was yelling at her supervisor in front of customers. She also repeatedly refused to go home when directed to do so by her supervisor. The employee was given a one-week suspension for her first outburst. The employee acknowledged that she was told that if it happened again she could lose her job.

In the second incident, the employee yelled at the managing owner while at the drive thru window. She was repeatedly told to leave and ignored those directives. She then slammed her headset down with such force that it broke the case on the headset. The employee's outburst again could be heard by customers.

The next day, the employee was told that she could remain employed until she found a new job. That led to her third outburst. She repeatedly taunted the employer to fire her so she could get unemployment. She got her wish after calling the managing owner a jerk, and implying that he did not have a life outside of work.

The employee's mother, who she had lived with, had suffered through leukemia during the employee's last year of employment and passed away on June 10. The employee was upset and under stress as a result of her mother's death.

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 employee engaged in prolonged disruptive, destructive, and insubordinate behavior. The employee was given the opportunity to calm down and go home during the first two outbursts and refused repeatedly to do so. The employee engaged in such conduct in front of the employer's customers. The employer had a right to expect that the employee would comport herself in a reasonable manner, refrain from causing damage to its equipment and respect her superior. The employee's actions demonstrated an intentional and substantial disregard of the standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that, in week 27 of 2011, the employer discharged the employee for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $741.00 for weeks 27 through 33 of 2011, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).
The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of erroneously paid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental 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, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

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 employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a departmental error. See Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 27 of 2011, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $741.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on June 28, 2011, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and Mailed February 16, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission consulted with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The ALJ indicated that the employee presented as a blustering person who speaks before she thinks. The ALJ indicated that the employee was fearful that if she left as directed to do, that she would not have a job. The ALJ further believed that the employee did not understand the gravity of her actions. Finally, the ALJ believed that the employee's mother's illness and passing played a role in how she was acting. The commission can appreciate that the loss of the employee's mother had an effect on her. However, the employee's actions occurred during two separate months. The employee did not experience a momentary failure to act within the employer's reasonable expectations but engaged in prolonged disrespectful and disruptive behavior. The employee was clearly on notice that her employment was at stake yet proceeded to taunt and demean the employer. A reasonable person under similar circumstances would understand such behavior to be an intentional and substantial disregard of the employer's interests.


reedrac . urr : 132 : 1

cc: Arby's (Madison, Wisconsin)


Editor's Note: Appealed to Circuit Court. Affirmed October 18, 2022. Decision available here.


 

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2012/04/26