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

PIETRO ROMANTICO, Employe

OLD WORLD BREADWERKS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99602920MW

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 the employer, a bakery, for a month as a baker. His last day of work was on or about August 1, 1998 (week 31).

The employe and the employer's owner, Timothy Knopps, sometimes disagreed about the best way to perform the job, and when Mr. Knopps would show the employe how he did things, the employe sometimes replied that this was not the way he had learned to do it in school. If the employe raised such an objection, Mr. Knopps would generally allow him do things his own way. However, in those instances when he specifically instructed the employe to adhere to his methods, the employe attempted to do so.

Mr. Knopps believed the employe was not willing to work with him on his terms. Further, he was dissatisfied that the employe occasionally burned product and felt that the employe lacked the baking experience he described on his application. Consequently, in week 31 of 1999, he notified the employe that things were not working out and that he was discharged.

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

At the hearing the employer contended that the employe was insubordinate and, further, that he lied on his application when he stated he was a certified baker. However, the evidence in the record does not support a finding of misconduct. While the employe sometimes disagreed with Mr. Knopps as to how things should be done, he never refused to follow any directives from the employer. To the contrary, Mr. Knopps specifically testified that he would usually let the employe do things his own way, and that when he insisted the employe follow his methods, the employe attempted to do so.

Regarding the employe's qualifications as a baker, the employe testified that he is an experienced baker, and the employer presented no competent evidence to the contrary. The fact that the employe sometimes burned product does not prove that he lacked baking experience, and the employe credibly testified that he had difficulty with the employer's oven. The employe indicated that he tried his best, and while the employer may have had legitimate reasons to be dissatisfied with his job performance, the commission is unable to conclude that the employe engaged in any actions which amounted to misconduct.

The commission, therefore, finds that in week 31 of 1998, the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning as of week 31 of 1998, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed August 10, 1999
romanpi.urr : 164 : 1  MC 630.20, MC 610.08

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. The commission does not specifically disagree with any of the administrative law judge's credibility impressions. Rather, the commission concludes that, when applying the law to the relevant facts in this case, misconduct was not established.

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