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


ROBERT A MICKETT, Employe

E J PETER TRUCKING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99003336WU


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 as of week 32 of 1999, if otherwise qualified.

Dated and mailed December 22, 1999
mickero.usd : 178 : 7  MC 665.04  MC 688.1  MC 699.05

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review, the employer argues that the employe committed wilful misconduct by failing to keep the shop clean and failing to properly manage his time.

The employer's most significant complaint is the shop cleaning issue. The time management incidents were single unrelated incidents or matters of judgment. As to the cleaning, it appears the employe was never placed on notice his job was truly in jeopardy. The employer reiterates in its petition that he was told every week throughout his employment that he needed to clean and things needed to change. Yet the employe did not do so consistently and no disciplinary action was ever taken. Under the circumstances, the commission concludes that the employer acquiesced, if unwillingly, to the employe's behavior because it believed it had no choice and fired him only when it finally found a replacement. No final employe action occurred to prompt the employe's discharge at that particular time. The employer has proven the employe was an unsatisfactory worker but not that his actions were in deliberate and substantial disregard of the employer's interests or that he was on notice that he would be fired if he did not keep the shop clean. Therefore, the commission affirms the appeal tribunal decision.

cc: E J PETER TRUCKING INC


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