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


EDNA G CAUSEY, Employe

THE LUTHERAN HOME INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99605646MW


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 long-term care facility, for about two years as a certified nursing assistant. She was discharged on May 25, 1999 (week 22).

On May 23, 1999, the employe was assigned to perform morning cares for an elderly resident. The employer contended that the employe grabbed the resident's arm and twisted it, causing bruising. However, the employe denied having done so. She stated that nothing happened outside of the ordinary course of her work and that, to her knowledge, there were no bruises on the resident's arm. The employe had no prior disciplinary record with the employer.

Two days following the incident in question, the employe was discharged based upon the allegations of resident abuse. 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 appeal tribunal found that employe engaged in resident abuse and that her actions amounted to misconduct. The commission disagrees. The employer's only witness, the director of human resources, had no firsthand knowledge about the incident and, although she testified that there were five persons with such knowledge, the employer failed to bring any of those individuals to the hearing. While the employer presented written statements from its purported witnesses, which the appeal tribunal considered to be admissible business records, in fact those statements amounted to mere hearsay and did not serve to contradict the employe's sworn testimony that nothing untoward occurred.

The commission, therefore, finds that in week 22 of 1999, the employe was discharged and not for misconduct connected with her 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 22 of 1999, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed November 3, 1999
causeed.urr : 164 : 1  PC 714.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


NOTE: Although the commission conferred with the administrative law judge regarding witness credibility and demeanor, its 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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