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


GINGER A HAMMERSTAD, Employe

GREAT LAKES AGRICULTURAL RESEARCH SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99000785JV


On February 10, 1999, the Department of Workforce Development issued an initial determination which held that the employe quit her work with good cause attributable to the employer. The employer filed a timely request for hearing, and hearing was held on March 8, 1999 in Janesville, Wisconsin before a department administrative law judge. On March 11, 1999, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employe filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked during eight years as an efficiency technician and quality assurance auditor for the employer, a pesticide research contractor. Her last day of work was December 29, 1998 (week 1), at which time the employer told the employe her employment was terminated. The commission believes the separation was a discharge by the employer, and therefore reverses the appeal tribunal decision.

The employe was called into a meeting with the employer on December 23, 1998, because the employer was concerned about her quality of work and attendance record. The employe had a series of personal and family traumas during the prior year and the employer was under the impression that these personal circumstances were affecting her work. One of those circumstances was the family dairy farm on which her mother needed assistance after her (the employe's) father died. The employer and employe agreed at the December 23 meeting that it would be in the employe's best interest to work part time by giving up one of her roles in the business. The employer then stated that, in order to continue working even one-half time, the employe needed to seek counseling. The employe asked the employer if it would pay for counseling and the employer responded that some counseling was free but no referral was made. The employe refused to seek counseling, at which point the employer responded that the employe's last day of work would be January 1, 1999. On December 29, 1998 (week 1), the owner told the employe that that day would be her last day and her employment thereupon was terminated.

The first issue is whether the employe quit the employment or was discharged by the employer. The moving party in this separation was the employer, because the employer ended the employment relationship based upon the employe's refusal to accede to the employer's demand that the employe seek counseling. Since the employer was the moving party in the separation, it is properly characterized as a discharge.

The dispositive issue is whether the discharge was for misconduct for unemployment insurance purposes. Misconduct is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. In this case the employer discharged the employe because of the employe's refusal to undergo counseling. Several factors compel the conclusion that the employe did not commit misconduct by her refusal. First, one of the employer's complaints was that the employe was missing work. This was a reason why the employer wanted the employe to begin working part time (which the employe agreed to do). One of the reasons the employe had missed work, as indicated above, was to provide assistance on her family's farm after her father's death. Once the employe began working part time, though, there likely would have been little or no conflict between the employe's work for the employer and her work assisting her mother. Second, the employer complained of the quality of the employe's work, poor work ostensibly being another basis for the employer's demand that the employe seek counseling. The employer provided no evidence at the hearing, however, to support her contention as to the poor quality of the employe's work. Third, generally when an employer requires an employe to undergo counseling in order to maintain employment, the employer or the employe's health insurance carrier covers the costs of the required counseling. There is no evidence in the record to suggest that the employer would have done so in this case. For these reasons, and primarily because the employer did not establish a basis for its requirement that the employe undergo counseling, the commission concludes that the discharge was not for misconduct.

The commission therefore finds that, in week 1 of 1999, the employe was discharged but not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04 (5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for unemployment insurance, if she is otherwise qualified.

Dated and mailed May 27, 1999
hammegi.urr : 105 : 3 MC 664

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission does not differ with the administrative law judge as to his credibility assessments of the respective witnesses. Indeed, the commission's factual findings track those of the administrative law judge. Rather the commission concludes that, as a matter of law, the separation as described by the employer was a discharge and not a quit.


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