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


STEPHEN W ZASTROW, Employe

SPEEDWAY SUPERAMERICA LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99607213MW


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 as a manager trainee and lastly as a manager from November of 1997 for the employer, a gas station and convenience store. His last day of work was September 4, 1999 (week 36).

The issue which must be resolved is whether the employe voluntarily terminated his employment or whether he was discharged by the employer. If he voluntarily terminated his employment it must be determined whether his quitting was for any reason which would allow immediate benefit payment. If it is determined that the employe was discharged, it must be determined whether the employe was discharged for misconduct connected with his work.

The employe was unhappy with his working conditions for the employer since he was burned out from the excessive number of hours he was required to work. Consequently, he submitted his notice of resignation to the employer on August 2, effective within two weeks. However, the employer's district manager talked him out of quitting after a meeting on August 10, 1999. At that time, the district manager suggested that the employe could be transferred to another convenience store closer to his home which was open 24-hours a day, to cut his working hours.

After he was transferred to that location, he worked several days with the existing manager before he assumed those responsibilities on August 21, 1999. Thereafter, he worked an average of 80 to 100 hours per week since he discovered that the employer was short-staffed at that location and he was unable to hire a sufficient number of employes to replace the lost help. The employer's district manager visited his store on September 7 and observed that he was behind in maintaining his records and was understaffed. Accordingly, the district manager met with him on September 8 to discuss the problems at the location where he worked. The district manager advised him that he needed a commitment for him to solve the problems. He stated that he was unable to make that commitment because he was physically and mentally burned out because of the long hours that he was required to work. The district manager then advised him that he was willing to accept his resignation and he agreed to submit his resignation as manager, although he asked whether he could continue in some other capacity. The district manager advised him that his continued employment was not necessary.

The employe had originally intended to quit work with the employer, and gave his notice on August 2. However, the employer asked the employe to reconsider, and after discussion the parties agreed that the employe would remain employed by the employer, but at a different location. Thus, the employe's quitting was rescinded by mutual agreement. On September 7, the store manager visited the employe's new location and was dissatisfied with the employe's record keeping and the lack of staff. The district manager then called a meeting to discuss those concerns. When the employe responded that he was having difficulty giving one hundred percent commitment because he was working too many hours, the district manager asked for his resignation and refused to let the employe continue in a non-supervisor position. The employer was the moving party in ending the employment relationship and therefore discharged the employe.

The next issue which must be resolved is whether the employe's discharge was for misconduct connected with his 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 employer asserted that the employe's discharge was through mutual agreement and not for misconduct. The commission agrees. The employe was unable to carry out his responsibility as a manager of the new location. The employe was unable to hire new staff quickly, as a result he had to work an excessive number of hours filling in and was unable to complete his paperwork. While the employer was understandably unhappy with his performance, the employe worked to the best of his ability and was simply unable to fulfill the employer's expectations. As a result, it cannot be held that his actions demonstrated such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that the employer discharged the employe in week 37 of 1999, but that the discharge was not for misconduct within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is modified, and as modified is affirmed. Accordingly, the employe is eligible for benefits as of week 37 of 1999, if he is otherwise qualified.

Dated and mailed January 21, 2000
zastrst.urr : 145 : 7 MC 660.01

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not modify the ALJ's decision because it had a different impression of witness credibility and demeanor. The facts for the most part were undisputed. Rather, the commission reached a different conclusion with regard to the nature of the separation.

The employer contends in its petition for commission review that what was complained of as being unreasonable, actually was not. The employer contends, evidently with some justification, that the employe was unable to effectively manage his time. The employer contends that if the employe had made hiring a priority he would have alleviated the need to work so many hours and he could have completed his paperwork. However, the employe's lack of efficiency does not rise to the level of misconduct connected with his work.

cc: FRANK GATES SERVICE CO

SPEEDWAY SUPERAMERICA LLC


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