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

JANICE L BOHMAN, Employe

HCI INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99601023MW

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 and her husband worked for the employer, an occupational health service provider, as an audiometric technician. The employe drove a van throughout a four-state region conducting hearing, respiratory, and pulmonary and respirator fit testing. Her last day of work was December 21, 1998. She was discharged on December 30, 1998 (week 1 of 1999).

The employe and her husband were required to attend a conference from December 17-22 in Rockford, IL, at which they were to receive training on updated materials. On Monday, December 21, either the employe or her husband left a voicemail message for the employe's supervisor, David Pentek, indicating that they had to go to Kansas for a family emergency involving their son. Later that night the employe or her husband left another message stating that they were unable to return due to severe weather.

Prior to the scheduled convention the employe had told Mr. Pentek that she was planning to go to Phoenix for the holidays and was not happy that the meeting dates would extend into the 21st and 22nd of December. The employer, therefore, did not believe there was an emergency, but felt the employe and her husband had gone to Phoenix to be with family. When the employe and her husband returned to Rockford to make up the training on December 30, the employer discharged them both for dishonesty.

The issue to be decided is whether the employe's discharge was due to misconduct connected with her employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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 employe's husband appeared at the hearing on her behalf to explain the nature of the "family emergency" that caused the employe to miss the last two days of the convention. The employe's husband explained that their son's girlfriend's car broke down in Kansas while their son and his girlfriend were en route to Phoenix for the holidays, and that he and the employe went to Kansas to help him because his son did not have money to get the car fixed. The employe's husband indicated that they left Rockford early Sunday morning and stayed in Kansas over night, but were unable to get back to Rockford on Monday morning because the roads were too icy. The employe's husband testified that on Monday evening he and the employe concluded that the weather was not improving, so they decided to head for Phoenix and take their son and his girlfriend with them.

Based upon the employe's husband's testimony, it is clear that there was no genuine emergency compelling the employe to leave the convention in Rockford. The employe could have wired money to her son or, if she felt it necessary to render personal assistance, could have sent only one family member, rather than having both the employe and her husband drive to Kansas when they were supposed to be attending training sessions for the employer. The fact that both the employe and her husband left the convention on non-emergency business and, fortuitously, were unable to return to the convention and proceeded on to Phoenix, strongly suggests that the employe had no intention of attending the training scheduled on the days in question. Indeed, given that the employe had previously notified her supervisor that she planned to spend the holidays in Phoenix and was unhappy with the employer's decision to hold meetings on December 21 and 22, the commission concludes that the employe deliberately used a non-emergency situation as an excuse to avoid two days of training which conflicted with her vacation plans and misled the employer about the reasons for her absence. The commission believes that the employe's actions in this regard evinced a wilful and substantial disregard for the employer's interests and the standards of conduct the employer had a right to expect of her.

The commission, therefore, finds that in week 1 of 1999, the employe was discharged for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in weeks 2 through 7 of 1999 in the total amount of $690, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

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 employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 1 of 1999 and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $690 to the Unemployment Reserve Fund.

Dated and mailed June 22, 1999
bohmaja.urr : 164 : 1  MC 630.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that he believed the employe's husband's testimony that his son's car broke down, although he did think it looked kind of "phony" and that there were other ways to resolve the matter. The commission has no disagreement with the administrative law judge's credibility assessment. However, it concludes that the employe's conduct cannot be dismissed as a mere error in judgment and that it rose to the level of misconduct under the law.

cc: ELAINE MOULTON
C/O THE FRICK COMPANY

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