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


SHELDON S EBY, Employe

DINGMAN LANDSCAPE DESIGN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99003209JV


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits, if otherwise qualified.

Dated and mailed November 12, 1999
ebysh.usd : 145 : 5  MC 692

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review the employer asserts that the employe was discharged because he was unable to obtain a Commercial Driver's License (CDL) which was required to fulfill the job requirements that he agreed upon when he was hired. The employer then gave the employe the opportunity to obtain a different position with its company. The employe was unable to perform the duties required by that position. The employer had no other positions available. The record demonstrates that the employer attempted to keep the employe employed. The employer made a valid business decision when it decided to discharge a worker who was simply unable to obtain the necessary qualifications to perform the job as a foreman, and lacked the ability to perform the maintenance position. However, under the law, the inability to perform a job to the employer's satisfaction does not disqualify a claimant from benefit eligibility. 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."

In this case, the employe attempted on several occasions to obtain a CDL. There is nothing to suggest his failure to obtain it was wilful or intentional. In addition there was no evidence that the employe engaged in any kind of misconduct while he was performing the maintenance position. Therefore under the law he is eligible for benefits.


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