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

RICHARD C ADAMS, Employe

HOTEL PFISTER, Employer
GRAND GENEVA RESORT

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99602534MW

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 11 of 1999, if otherwise qualified.

Dated and mailed March 2, 2000
adamsri.usd : 178 : 5  MC 687 MC 688.1

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that the employe was guilty of misconduct for repeated violations of the employer's rules and policies which taken as a whole amounted to a substantial disregard of its interest. It disputes the ALJ's conclusion that a personality conflict with the supervisor was responsible for the frequency of the employe's warnings in the last year of his employment.

The commission has carefully considered the arguments of the parties. However while the employer may have considered the employe a less than model worker, the commission cannot conclude that the employe's conduct taken either singly or collectively amounts to misconduct.

Although the employe collected a number of warnings, he never repeated a particular error or offence after receiving a warning for it. For this reason the commission cannot conclude that the employe received progressive discipline, since he did not receive increasing discipline for repeating the same rule violations. In some of these instances, the employe made an admitted mistake or error as was the case when he did not double check that the drink order was entered on the check. In other cases, the employe was not at fault such as the absence due to pneumonia or the case where the guest took the check. These incidents taken together do not demonstrate an intractable unwillingness on the part of the employe to conform his behavior to a clear employer precept but rather a series of discrete and separate violations of varying employer rules and policies.

Since the employe did not repeat a particular offence, the employer's discipline appears to have been effective. The commission cannot conclude that the employe was on clear notice that any particular final act or omission would cause his discharge. Certainly the facts of the final incident show no intent to deliberately harm the employer. Even where rule violations are demonstrated, as here, misconduct is not shown absent an intent by the employe to harm the employer's interests. The appeal tribunal decision therefore is affirmed.

cc: HOTEL PFISTER

CURTIS A BRZEZINSKI

ATTORNEY KATHERINE L WILLIAMS
BECK CHAET MOLONY & BAMBERGER SC

ATTORNEY JEFFREY S HYNES
ADELMAN & HYNES SC

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