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


JANICE A EVANS, Employe

SEVENOAKS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99601933MW


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 two years as a dietary aid for the employer, a nursing home. The employe's last day of work was February 24, 1999 (week 9), when she was discharged.

The issue which must be decided is whether the employe's actions, which led to her discharge, constitute misconduct connected with her employment.

The employer discharged the employe for what it considered to be inappropriate conduct toward staff and family members.

On December 1, 1998, the employe was asked by a co-worker to provide thickened cranberry juice. The employe offered the co-worker thickened apple juice. The co- worker said she wanted thickened cranberry juice, and then decided to take the thickened apple juice. The co-worker who requested the item complained that the employe was not doing her job.

On December 4, 1998, a nurse complained to the employer that the employe was rude to her. The nurse asked for a spoon, and the employe told the nurse she could get the spoon off the room tray cart. The nurse did not seem to understand what the room tray cart was, so the employe gave her a spoon off the table. The same nurse came back to the counter and tried to hand the employe a dirty plate over the counter where the employe was serving the food. The employe understood that she was not allowed to take dirty plates while serving food, and told the nurse to take the plate to the kitchen.

On January 21, 1999, two workers complained that the employe shouted "serve breakfast" to them. The workers were not required to serve breakfast, but were passing by the area when the employe asked them to come and pass plates to their residents. As a result of this incident, the employe was suspended for three days.

On February 21, 1999, a family member of a resident complained that the employe was rude when the family member requested a different nutritional shake for her mother than the one that had been provided. The employe denied being rude.

On February 22, 1999, a member of the same family asked a co-worker to give their mother a pork chop with less fat on it than the one she had been given. The caregiver came to the employe who was in the middle of serving residents. The co- worker then got another pork chop for the family.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 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 employee, 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 employee'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 employer alleged that the employe's discharge was for misconduct, however, the employer failed to establish through first hand evidence that the employe was rude to her co-workers or to the families of residents. The employer did not bring a single witness who testified that the employe was rude to him or her. The employer provided only hearsay statements of people who were not at the hearing. The employe denied being rude. Under the circumstances, the employer failed to establish that the employe's discharge was for misconduct connected with her work.

The commission therefore finds that the employe was discharged in week 9 of 1999, but that her discharge was not for misconduct connected with her 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 as of week 9 of 1999, if she is otherwise qualified.

Dated and mailed June 24, 1999
evansja.urr : 145 : 1  PC 714.07  MC 666.01  MC 610.25

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission concluded that there was not sufficient evidence in the record upon which to base a finding that the employe's discharge was for misconduct connected with his work.

cc: SEVENOAKS


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