Wis.LIRC UC Decision: Gipson - March 17, 1999 - MC 640.01 - General - Insubordination - single isolated incident; MC 640.12 - Refusal to work; MC 688.1 - Disciplinary procedure - enforcement - sequence of penalties single isolated instance of disobedience may not be misconduct if a defensible reason

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

LILLIE M GIPSON, Employe

MARIAN CATHOLIC CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98601313MW

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 employe is ineligible for unemployment insurance from week 3 through 10 of 1998 and until the employe has earned wages in covered employment performed after the week of discharge equaling at least $2,716.00.

Dated and mailed March 17, 1999
gipsoli.usd : 135 : 1 MC 640.01 MC 640.12 MC 688.1

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In her petition and brief to the commission, the employe argues that the employer failed to submit sufficient evidence to prove that she engaged in misconduct. First, the employe argues that she never flatly refused to accompany the resident but rather indicated she would not go in view of her illness and weather conditions outside. Although the commission agrees with the employe's recitation of the case law which indicates that a single isolated instance of disobedience is not misconduct if an employe has a defensible reason, the commission is unwilling to conclude that the employe made her illness clear to the employer or that she was actually too ill to accompany the resident.

When Ms. Gerdman asked the employe to accompany the resident, the employe's only response to Ms. Gerdman, her superior, was that she did not want to accompany the resident. This however would have been an excellent opportunity for the employe to explain to her superior why she was unwilling to follow the directive. The fact that Ms. Gerdman failed to explore any possible reason why the employe did not want to follow her directive does not excuse the employe's obligation to explain to her employer why she felt she could not accompany the resident. Additionally, the employer was unaware of the employe's reason of illness until she provided a written statement to that effect during a meeting with Ms. Rickert.

The employe also argues that the employer failed to make it clear to the employe what the consequences of her failure to accompany the resident were. The employe however did admit at page 3 of the hearing synopsis, before ALJ Lund, that "the only thing mentioned was that it could possibly be insubordinate. I was never told I would be suspended." The commission believes that this constituted notice to the employe that her refusal could be deemed insubordination by the employer. While the employer could have been more explicit regarding potential consequences the employe faced, the fact that the employe was removed from the floor during her shift and ordered to a meeting with Ms. Rickert should have been notice to the employe that the employer considered the employe's refusal to be worthy of some form of discipline.

The employe's final argument is that the employer failed to follow its progressive disciplinary policy which required a lesser penalty pursuant to the alleged violation. The employe argues she had a right to rely on that policy and that the commission should thus find that her actions did not amount to misconduct. Again, while the commission believes the employer could have been clearer regarding potential consequences the employe faced, the commission is satisfied that the employe was warned that her failure to accompany the resident would amount to insubordination. The commission also notes that an employer need not first resort to some lesser degree of discipline than discharge merely because the conduct was the first offense, even under an employer's progressive disciplinary policy. Nordberg Mfg. v. DILHR and Morgan, Dane County Circuit Court, Case No. 145-359, July 16, 1975. The commission is satisfied that the employe's refusal to accompany the resident was a single serious incident sufficient to establish misconduct based on the above discussion.

The commission notes that it did not consider any of the other "disciplinary actions" that the employer considered when deciding to discharge the employe. The case was resolved around the single issue of whether the employe's refusal to accompany the resident amounted to misconduct. While the commission believes that the employe may have had an extenuating circumstance and a defensible reason for not following the directive, she failed to immediately notify the employer of her personal circumstances, thus rendering her explanation during the meeting with Ms. Rickert less than credible.

The commission finally notes that it conferred with both ALJs Lund and Gordon regarding the witnesses and their credibility. During the conferences, ALJ Lund indicated that he found the employe's illness less of a reason for her refusal than her desire not to return to work later than her shift ending time. ALJ Lund also found the employer's witnesses generally more credible than the employe. ALJ Gordon found Ms. Lumpkins testimony credible and noted that at the time of the hearing she was still working for the employer. The commission finds that Ms. Rickert mentioned insubordination to the employe during their conversation in the resident's room. It is not clear whether Ms. Lumpkins heard this testimony or whether she did not recall the comment since the events had transpired almost a year after the hearing.

In any event, after considering all the evidence and the employe's arguments, the commission concludes that the employer met its burden of proof by establishing that the employe's refusal to follow the employer's directive was an intentional disregard of the employer's interests and of the standard of conduct the employer had a right to expect of the employe, thereby amounting to misconduct.

cc: ATTORNEY JON DEITRICH
ADELMAN & HYNES SC

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