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


MARCY N FERONE, Employe

FAMILY VIDEO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99002424JV


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 during two years as a clerk for the employer, a video rental shop. Her last day of work was May 29, 1999 (week 22).

The employer's policy provides that its workers are to dress in a "Business Casual" manner and are not to wear "grunge," caps, denim, or untied shoes. A few weeks prior to the employe's last day of work the employe mentioned to the employer that she was thinking about getting her eyebrow pierced. The manager told her that this would violate the employer's policy. The employer wanted workers to look professional and this would not look professional. The employe agreed. However, on May 29, 1999 the employe reported to work with a hoop in her eyebrow. The manager told her she needed to remove the hoop, or leave. The employer was very busy however, on several occasions the manager asked her what she had decided to do about the hoop, which she had not taken out. The employe became angry and walked out in the middle of her shift.

The issue which must be decided is whether the employe's discharge was for misconduct connected with her work.

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 employe had her eyebrow pierced after discussing the matter with the employer and being told that this violated the employer's policy. When the employer instructed her to remove the hoop, the employe refused, and after the manager asked her several times what she had decided, simply left the workplace. The employe's actions in failing to abide by the employer's dress code and then leaving her employment in the middle of her shift amounted to such a wilful and intentional disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 22 of 1999 the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 23 of 1996, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed December 3, 1999
feronma.urr : 145 : 1 MC 698

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission does not reverse the ALJ based on a differing impression of witness credibility and demeanor but because it reached a different legal conclusion based on both the facts found by the ALJ and evidence from the remand hearing which was not available to the ALJ when he made his decision. The evidence in the record is undisputed because only one witness appeared at either hearing.

cc:
FAMILY VIDEO
R E HARRINGTON INC


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]