TYINE G KIRKENDOLL, Employee

CLEAN POWER LLC, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued an appeal tribunal 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:

The employee worked for approximately one year as a cleaner for the employer, a commercial cleaning business. Her last day of work was April 3, 2014 (week 14). The employer discharged her that day.

Prior to the discharge, the employer had issued a number of performance correction notices to the employee for a variety of incidents. No two incidents involved the same type of conduct, and there was no evidence that the employee ever repeated any of the acts for which she received a correction notice. On November 18, 2013, the employer cited the employee for talking on her cell phone while performing her duties at a Harley-Davidson product design center. Cell phone use on the premises was prohibited. On December 18, 2013, the employer cited the employee for not starting her work in a timely manner after punching in. On February 26, 2014, the employer cited the employee for not propping the restroom door open while she was inside cleaning. On March 13, 2014 the employer cited the employee for having a container of juice on the cart that she used for moving her supplies around the premises.

The correction notice form that the employer used to document the above incidents contained a space to indicate what action would be taken "if this or other offenses are repeated." With respect to the notice in November 2013 regarding cell phone use, the employer indicated that a repeated offense would result in a written warning or a transfer from the Harley-Davidson account. With respect to the other three notices, the employer indicated that a repeated offense would result in termination of employment.

On April 2, 2014 the employee failed to restock paper towels in two restrooms that she cleaned, a men's restroom and a women's restroom, and proceeded to clean two other restrooms. The employee knew she still had to restock the women's restroom; she had not done so because she did not have a roll of towels on her cart at the time she was cleaning it. She had forgotten about the need for paper towels in the men's restroom. The employer's supervisor noticed that the paper towels had not been restocked, and he told the employee to restock the paper towels in the restrooms. In the conversation between the supervisor and the employee about this, the employee interrupted the supervisor, and because of that the employee had the misunderstanding that there was only one restroom, the women's, that was in need of paper towels. The employee retrieved a roll of paper towels and asked a co-employee to restock the women's restroom. She later verified that the co-employee had done so, but the employee continued to be unaware that she had failed to restock the men's restroom. The supervisor checked after the employee had ended her shift and discovered that paper towels had not been restocked. The next day the employer discharged the employee. The supervisor did not believe that the employee had intentionally disobeyed him.

An employee who is discharged is eligible for unemployment insurance benefits unless the discharge was for misconduct or substantial fault by the employee connected with the employee's work. In analyzing discharges, the commission follows a three-step approach. First, the commission determines whether the employee was discharged for misconduct by engaging in any of the actions enumerated in Wis. Stat. § 108.04(5)(a)-(g). If those provisions do not apply, the commission determines whether the employee's actions constitute misconduct as originally defined by the Wisconsin Supreme Court in Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636 (1941), and now codified in Wis. Stat. § 108.04(5)(intro.). Finally, if misconduct is not found, the commission determines whether the discharge was for substantial fault by the employee connected with the employee's work, as set forth in Wis. Stat. § 108.04(5g).

The conduct for which the employee was discharged does not come within any of the acts specifically defined as misconduct under Wis. Stat. § 108.04(5)(a)-(g).

Under the general definition in Boynton Cab, supra, misconduct connected with the employee's work means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations, or of negligence so gross or repeated as to demonstrate equal culpability. The employee attributed her failure to fully understand and carry out her supervisor's instruction on April 2nd to the fact that she cut him off while he was talking to her. The supervisor, who testified for the employer, did not assert that the employee's conduct while he was talking to her played any role in his decision to discharge her, and he acknowledged that he did not believe that the employee's failure to follow his instructions on April 2, 2014 was an intentional act. Based on this evidence, the commission concludes that while the employee exercised poor judgment by talking over the supervisor while he was talking to her, her resulting failure to fully understand and carry out his instruction was neither an intentional and substantial disregard of the employer's interests, nor an act of gross or repeated negligence.

In addition, except in those cases in which the conduct causing discharge is sufficiently egregious, before there can be a finding of misconduct the employee has to be aware, or have reason to be aware, that her job would be in jeopardy if she engages in the subject conduct again. See Hainz v. Nelson Industries, Inc., UI Dec. Hearing No. 00003095MD (LIRC Oct. 3, 2000); Kovach v. Farm/Fleet Janesville, Inc., UI Dec. Hearing No. 05005166WK (LIRC Feb. 24, 2006). Although the employee had received warnings about several different kinds of conduct, none of those warnings had put her on notice that her employment would be in jeopardy for failing to perform the task of replenishing paper towels in a restroom, or something similar to that task, therefore a conclusion of misconduct requires a finding that her conduct in the incident of April 2nd was egregious. See Morel v. Ball Plastic Container Corp., UI Dec. Hearing No. 08003462MD (LIRC Dec. 12, 2008) (Egregiousness must be found where "neither the corrective actions issued to the employee nor the language of the employer's work rules/policies would have put the employee on notice that his job would be in jeopardy for lifting an empty pallet without using a forklift or having a coworker assist him."). The employee's forgetfulness and lapse in judgment with respect to the paper towels was not so egregious that the employee knew or should have known, without warning, that she would be discharged for it.

Finally, the question of whether the employee's conduct amounted to substantial fault must be considered. Substantial fault connected with the employee's work includes those acts or omissions of an employee over which the employee exercised reasonable control and that violate reasonable requirements of the employer, but it does not include minor infractions of rules unless an infraction is repeated after warning, inadvertent errors, or any failure of the employee to perform work because of insufficient skill, ability, or equipment. Wis. Stat. § 108.04(5g).(1) It was a reasonable requirement that the employee restock the paper towel supply in the restrooms that she was assigned to clean, and the employee had reasonable control over whether she did so, but before her conduct can be considered substantial fault the statutory exceptions must be examined. The employee had performed her job for approximately one year without being cited for failing to restock the restrooms with paper towels; it can be inferred, then, that the third exception, a lack of skill, ability or equipment, does not apply. The evidentiary record is not entirely clear on whether the first exception applies, because no record was made on the existence of any rule regarding the employee's conduct, or whether, if a rule could be inferred, the infraction was minor.

The commission, however, finds that the second exception, for one or more inadvertent errors by the employee, applies. As noted above, it is undisputed that the employee did not intentionally disobey her supervisor when she failed to restock the restroom. She had forgotten to do so, clearly an inadvertent act, then she misunderstood her supervisor's instructions, and only saw that half of them were carried out; the employer did not allege that her misunderstanding of the supervisor's instructions was willful. The fact that the employee saw to it that one of the two restrooms was re-supplied with paper towels indicates that she was willing to follow her supervisor's instructions to the extent that she understood them. While there may be circumstances in which an employee chooses not to listen to her supervisor, the evidence here is not sufficient to support that finding.

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits as of week 14 of 2014, if otherwise qualified.

Dated and mailed August 8, 2014

kirkety_urr . doc : 107 : MC 601 : MC 602.2 : MC 660.01 : MC 688.1 : MC 689

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

NOTE: The commission consulted with the ALJ who held the hearing in this case to obtain the ALJ's impressions as to the credibility of the witnesses, based on their demeanor, which were a factor in the ALJ's decision. In response, the ALJ indicated that she believed the employee gave inconsistent testimony about her conduct on April 2nd, but had no other demeanor impressions. The commission has considered the ALJ's response, but reaches a different conclusion. Although the testimony was not a model of clarity, the commission believes it provided a consistent explanation, which was that the employee was aware, at the time of her conversation with her supervisor, that she needed to restock a women's restroom with paper towels, but that she did not do so when she was cleaning that restroom because she did not have any towels on her cart; that after her supervisor's instruction she retrieved a roll and gave it to a co-employee, who restocked the women's restroom; but that she had forgotten about the men's restroom, and did not hear her supervisor's instruction to restock it.

cc: CONTINENTAL INC

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(1)( Back ) Wis. Stat. § 108.04 (5g) provides:

DISCHARGE FOR SUBSTANTIAL FAULT. (a) An employee whose work is terminated by an employing unit for substantial fault by the employee connected with the employee's work is ineligible to receive benefits until 7 weeks have elapsed since the end of the week in which the termination occurs and the employee earns wages after the week in which the termination occurs equal to at least 14 times the employee's weekly benefit rate under s. 108.05 (1) in employment or other work covered by the unemployment insurance law of any state or the federal government. For purposes of requalification, the employee's benefit rate shall be the rate that would have been paid had the discharge not occurred. For purposes of this paragraph, "substantial fault" includes those acts or omissions of an employee over which the employee exercised reasonable control and which violate reasonable requirements of the employee's employer but does not include any of the following:

1. One or more minor infractions of rules unless an infraction is repeated after the employer warns the employee about the infraction.

2. One or more inadvertent errors made by the employee.

3. Any failure of the employee to perform work because of insufficient skill, ability, or equipment.

(b) The department shall charge to the fund's balancing account the cost of any benefits paid to an employee that are otherwise chargeable to the account of an employer that is subject to the contribution requirements under ss. 108.17 and 108.18 if the employee is discharged by the employer and paragraph (a) applies.

uploaded 2014/09/17