STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
REGINALD G ADAMS, Employe
REGENCY JANITORIAL SERVICE, Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99603809MW
An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following :
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The employe worked for the employer, a janitorial service, for about a year and a half as a janitor. His last day of work was May 7, 1999 (week 19).
On April 22 and 23, 1999, the employe and a co-worker were assigned to clean the carpet at a medical clinic. The employer maintained that a subsequent inspection revealed that not all stains were removed from the carpeting, and that it considered the job generally unsatisfactory. However, the employe had been asked to perform the work without a floor carpet machine, and did as well as he could with the equipment available to him. On April 26 the employe received a verbal warning indicating that his work at the clinic had had to be redone and that future violations would result in disciplinary action, up to and including discharge.
On or about April 26, 1999, the employer inspected a cleaning job performed at an office building called the "Crossroads Four," and found that the floors were streaky and the common areas were not completely wiped. As a result, the employe received a written warning on April 27, which indicated that the employer's owner had found the work to be substandard and that it would have to be redone. The employe was also given a 3-day suspension without pay and told that his work must improve. The employe maintained, however, that he had not been assigned to "Crossroads Four" on the day in question, but was working at another "Crossroads" building. He indicated that he did not discover the mix-up until after the suspension had already been served.
On May 6, 1999 the employe was assigned to scrub and refinish floors at an oil change facility. The employer later determined that the baseboards were not cleaned properly and that there were areas of the floor that had not been waxed. However, the employe had been told not to scrub the floors near the computers, because it would have necessitated moving computer wire out of the way, and therefore had deliberately limited his cleaning to the main area.
On May 7, 1999 (week 19), the employe was discharged for poor quality work. The issue to be decided is whether the 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."
The employer contended that the employe repeatedly performed substandard work and that his actions in so doing amounted to misconduct. The commission disagrees. The employe denied having performed substandard work, and the employer presented no firsthand testimony to the contrary. The individual or individuals who allegedly inspected the employe's work were not present at the hearing, and the employer's only witness, its human resource coordinator, had no personal knowledge about the quality of the employe's cleaning. Further, the employe testified without rebuttal that he followed the directions given him and did the best he could with the equipment assigned him. Even if the employer had succeeded in demonstrating that the employe sometimes did a less than satisfactory cleaning job, absent any evidence to establish that this was due to culpable conduct on the employe's part, such failures in good performance would not rise to the level of misconduct.
The commission, therefore, finds that in week 19 of 1999, 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 in week 19 of 1999, provided he is otherwise qualified. There is no overpayment as a result of this decision.
Dated and mailed September 2, 1999
adamsre.urr : 164 : 2 MC 660.01
/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. However, the commission's reversal of the appeal tribunal decision does not depend upon any differing assessment of witness credibility, but is as a matter of law.
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