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


DONALD T CAIRNS, Employe

TTC ILLINOIS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00200102EC


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 1 of 2000, if he is otherwise qualified.

Dated and mailed April 7, 2000
cairndo.usd : 145 : 1  MC 660   MC 662          

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review the employer asserts that the employe delivered fuel to an improper tank, causing significant monetary damage. However, the employe explained that this was the color code which was used for premium gasoline. Further, the employe was not reprimanded because of this incident.

The employer further asserts that the employe ran his truck into a guardrail that he knew was there. He admitted that the accident was preventable. He also ran into a parked pick up truck. This accident was also preventable. The accidents were certainly preventable in the sense that in each instance the employe hit a stationary object. The commission consequently found this to be a very difficult case. However, these were accidents, and therefore the employe's conduct must be negligent or careless to the degree or recurrence that it would demonstrate a wilful or wanton disregard of the employer's interests.

The employer correctly notes that the definition set forth in Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), does not specifically state that the negligence of the employe must be "gross" to be misconduct. However, it is clear from that definition that the negligence must be significantly more than ordinary negligence. The level of negligence necessary to constitute misconduct is that which manifests wrongful intent or evil design or shows an intentional and substantial disregard of the employe's duties and obligations to the employer. Pijan v. Menards Inc., UI Dec. Hearing No. 98200207EC (LIRC Jun. 25, 1998); William J. McKibbin v. LIRC, Marten Transport, Ltd., and R.E. Harrington, Inc., No. 94-CV-0213 (Wis. Cir. Ct. Dane County Dec. 23, 1994); aff'd. William J. McKibbin v. LIRC, Marten Transport, Ltd., and R.E. Harrington, Inc., No. 05-0234 (Wis. Ct. App. Feb. 29, 1996, unpublished). The courts have stated that it is a reasonable interpretation of "misconduct" to conclude that a recurrent pattern of negligent acts, so serious as to amount to gross negligence and thereby evince an intentional and substantial disregard of the employer's interests, is necessary to find misconduct. See McGraw Edison v. ILHR Department, 64 Wis. 2d 703, 221 N.W.2d 677 (1974); Fitzgerald v. Globe-Union, Inc. 35 Wis. 2d 332,151 N.W.2d 136 (1967).

In this case, there were extenuating circumstances. With regard to the first incident the employe had to navigate between a fence and the bumper pole. Thus, he was maneuvering between tight quarters. The applicant's second accident occurred while he was backing out from between two gasoline islands. He testified that he walked behind the truck before he started backing out and that the vehicle he hit later was not there at that time. (Synopsis at p. 17). The employer itself indicated that whether the pick-up was out of the employe's view was not really relevant because he was supposed to walk around and see what was there. (Synopsis at p. 10). While a better driver would not have had these accidents, and the employer may have made a valid business decision when it decided to discharge the employe, the commission cannot conclude that the employe's discharge was for misconduct connected with his work.

 

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. While the employe was not punished by a suspension or writing warning, the employe was talked to about the incident where he put premium gas in a tank for racing fuel. The cover for the racing fuel did not have the red cover with a white cross which the employe testified was the code for premium gas. This cover was solid red.

The second and third incidents were avoidable if the employe had used reasonable caution in his maneuvering. The employe was clearly on notice after the first accident and he had a second accident within in the same month. There was no testimony that the parking lot was slippery or any thing else that would be a mitigating circumstance.

The employe had worked for the employer for over a year and a half so he should have been able to operate the vehicle. I believe these three incidents rise to the level of a willful and wanton disregard of the employer's interest and thus is misconduct. I would reverse and find misconduct connected with his employment.

_____________________________________
Pamela I. Anderson, Commissioner


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