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

KATHY A EVENSON, Employe

DER BAUER CAFE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99200767RL

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 for about two years as a waitress for the employer, a restaurant. Her last day of work was April 23, 1999 (week 17), when she was discharged by the employer.

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

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 employer instituted a new smoking policy which required workers to smoke outside the building with the door closed. They were also to pick up their cigarette butts. The assistant manager discussed the employe's failure to follow these policies on April 9, 1999. The employe was given a "pink slip" which indicated it was her first warning, and which further indicated that if she accumulated three pink slips she would be dismissed. The employer also had a policy which prohibited workers from discussing the employer with anybody but the employer's management. The employer discharged her because it assumed that she was talking about the employer's business with customers or others, on April 16, but allowed her to continue working until April 23 (week 17). At that time, the employer gave the employe an extra week of pay, as a bonus. The employe admitted talking about the employer with co-workers and others around Christmas, but after a meeting in March with the owner, the employe discontinued this behavior. While the employer alleged that the employe violated the employer's policies regarding smoking and talking about the business after being warned, the employer presented only hearsay and failed to establish, through credible firsthand evidence, that this was the case. In fact, the employer's actions suggest that it did not consider the employe's actions to be so egregious as to amount to misconduct. The employer gave the employe a week's notice that she was going to be discharged. In addition, the employer voluntarily paid the employe a bonus. Because the employer failed to demonstrate that the employe continued to engage in this behavior after she had been warned, the commission cannot find that her actions demonstrated such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 17 of 1999, the employe was discharged, but that her discharge was not for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 17 of 1999, if she is otherwise qualified.

Dated and mailed December 23, 1999
evenska.urr : 145 :    MC 688.1  MC 696

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who indicated that the employe did appear to be credible when she indicated that she talked about the smoking policy with customers after the manual had been updated, but prior to the pink slip. The ALJ noted that the employe's testimony was somewhat mixed up with regard to the events and dates. The ALJ did not know why the employer allowed the employe to work for a week after firing her, but got the impression that the employer was a kind employer. The commission does not disagree with the ALJ's impressions of the parties, but does not believe the employer established that the employe violated its policies after she had been warned. Further the commission does not believe it was made clear to the employe that she would be discharged if she again violated the policies, for one thing the warning she was given suggested she would receive another warning prior to being discharged.

cc: ATTORNEY MICHAEL O ERSPAMER

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