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


THOMAS A WERLEIN, Employe

JOHNSON DISPOSAL SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99200049EC


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 employe worked for about three months as a sorter at the recycling center for the employer, a garbage hauling and recycling business. The last day that he performed work was December 16, 1998 (week 51).

The first issue to be decided in this case is whether the employe voluntarily terminated his employment, or was discharged by the employer. A secondary issue involves his eligibility for benefits in view of the nature of his separation from work.

On the employe's last day of work he considered that he had carbon monoxide poisoning from the fumes at the workplace. The employe had also mentioned this a few days prior to this. The employe told his supervisor on his last day of work that he was ill and asked for a worker's compensation form. The employe's supervisor told the employe to speak to the environmental safety and health manager, whose office was located in another building. When the employe arrived at the manager's office, the manager told the employe he was on the telephone and to wait in the hall. Another worker who had come to see the manager about a worker's compensation matter was also told to wait. The employe did not wait but went to see his own doctor. The employe left the work site without punching out. The employe's supervisor had called the manager and told the manager why the employe was coming to see him. The manager made an appointment for the employe with the facility the employer used for worker's compensation matters and physicals. Later in the day the manager found out that the employe had not returned to his workstation and also that he had not gone to the appointment. He called the employe and asked the employe why he had not gone to the doctor's appointment. The employe explained that he had not been told that the employer set up a doctor's appointment, but that he had been to the doctor himself. The manager asked if he was going to report the next day and he said he was. The following morning when the employe went into work, he was informed that it was considered that he had quit by walking off the previous day.

It was the employe's position that he was discharged when he reported to work on the morning of December 17. The commission agrees. While the employe did leave without permission, he had informed his supervisor that he was ill. The supervisor told the employe to report to the manager's office, and the employe did so. When he arrived at the manager's office he was told to wait in the hall. Instead, the employe sought medical treatment. While the employer had made an appointment for him at that same clinic, the employer never informed him that the appointment had been made. While perhaps the employe was not so ill that he needed immediate medical attention, he was absent for a valid reason, a medical appointment. There was no showing that the employe was aware that his seeking medical treatment would result in his discharge. Under the circumstances, the commission cannot conclude that the employe's actions, in leaving work to seek medical treatment, amounted to conduct inconsistent with continuing the employment relationship. Thus, the employe did not quit, but was discharged by the employer.

The second issue which must be decided is whether the employe's discharge was for misconduct connected with his work. The employe may have demonstrated poor judgment when he decided to go to the doctor rather than waiting to talk to the manager. However, his conduct did not demonstrate such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 51 of 1998, the employe was discharged but that the discharge was not for misconduct connected with the employe's 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, if otherwise qualified.

Dated and mailed April 14, 1999
werleth.urr : 145 : 1 MC 626  MC 605.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner



Pamela I. Anderson, Commissioner (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge that the employe quit when he walked out of the office of environmental safety and health manager. The employe was told to see the manager. The manager told him to wait but the employe did not wait. The manager testified he told him to wait a minute but when he looked again the employe was gone. If the manager had kept him waiting for a long period of time that would have affected my opinion on the case. Also the employe was out of the environment he believed contained too much carbon monoxide so he would not get worse.

My credibility impression of the employe is that he is an alarmist. His doctor's report from December 16, 1998 says "Tom returns. He has still had some drainage and cough." The employe had been to the doctor earlier with his complaints. The employe had called the fire department that morning and they declined to report but referred him to the City-County Health Department. He called the fire department before he complained to his supervisor or the office of environmental safety and health. He complained to OSHA who later came and found the employer's workplace to 4 ppm at peak times and the standard is 50 ppm.

The employe could have punched out before he left but he did not. He could have told the manager he couldn't wait but he did not. He later complained that the employer did not drive him to the doctor but he never asked or said he was in such bad shape he could not drive. The employe appears to have been the only employe who believed he was being poisoned that day. The employe did not show that the employer had a previous record of poisoning workers.

For all these reasons, I would agree with the administrative law judge and affirm the appeal tribunal decision.

Pamela I. Anderson, Commissioner


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