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


TIENYKER S WILLIS, Employe

DOTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99608510MW


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 over two years, most recently as the assistant manager, for the employer, a clothing store. Her last day of work was November 11, 1999 (week 46). She was discharged on November 16, 1999 (week 47).

The issue to be decided is whether the employe's actions, which led to her discharge by the employer, constitute misconduct connected with her employment. The employer's policy requires that a worker receive three warnings prior to being discharged. The employe had been warned on at least two occasions prior to being discharged. She had not received a written warning since sometime prior to June, 1999.

During her absence, the store manager was notified that the employe had not completed her tasks. Thus, the store manager admitted to having an "attitude" when she reported to work on November 11, 1999. The employe was on the phone when the manager entered the store. The manager asked the employe whether she had completed her assignments and the employe responded that she had not because she did not have a sufficient number of sweaters. The employe then accused the manager of "fronting" her. The manager directed the employe to get off the phone, but the employe refused. The manager unplugged the phone, but the employe plugged the phone back in. The manager unplugged the phone again, and the employe once again plugged the phone back in. The manager then told the employe to go home. The employe swore at the manager. The manager phoned her supervisor, who directed that the employe be suspended. The employe was discharged on November 16, 1999 for insubordination.

The employer contended that the employe's actions amounted to misconduct. The commission agrees.

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 not performed the tasks which had been assigned to her. She was on the telephone, on a personal call, when the store manager attempted to speak to her. The store manager asked the employe if her job was done, and the employe responded "no." The manager directed the employe to get off the phone, and the employe repeatedly refused. The manager unplugged the phone several times, and the employe repeatedly plugged it back in. The employe cursed at her supervisor and said she was not going to kiss her supervisor's "ass." She used other profanity and indicated that she would go home. The employe was or should have been aware that she was to follow her supervisor's instructions. She also was or should have been aware that if her supervisor directed her to end a non-work related telephone call, she should do so. The employe's refusal to follow the supervisor's reasonable directive, and the employe's actions in directing profanity at the supervisor, were so insubordinate and disrespectful as to amount to misconduct connected with her employment.

The commission therefore finds that in week 47 of 1999 the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for weeks 47 through 51 of 1999, amounting to a total of $320.00 for which she was not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 47 of 1999, 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. She is required to repay the sum of $320.00 to the Unemployment Reserve Fund. The initial benefit computation (Form UCB-700) issued on November 16, 1999 is set aside. If benefits become payable based on other employment, a new computation will be issued as to those benefit rights.

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 February 24, 2000
williti.urr : 145 : 1 : MC 640.05 MC 640.06  MC 640.15

/s/ David B. Falstad, Chairman

/s/ 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 does not disagrees with the facts found by the ALJ, but rather, it reached a different legal conclusion when applying the law to those facts.

cc: LORI PHILLIPS
GATES MC DONALD

DOTS INC


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