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


BRIAN K WILLIAMS, Employe

NEW GRANCARE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99608502MW


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a healthcare center, for about nine months as a licensed practical nurse (LPN). The employe's last day of work was November 9, 1999, and he was discharged on November 17, 1999 (week 47).

On his last day of work the employe noted that one of the residents in the employer's facility had an extra empty food tray before her, indicating that she had consumed an excessive quantity of food. The employe told the resident that she was not supposed to have the tray and attempted to take it away from her. When the resident would not surrender the tray, the employe let go, at which point the tray went flying and a plate broke. The resident stated that it was the employe's fault and that she was going to tell the administrator on the employe.

Approximately fifteen minutes later the resident approached the employe and told him that he was in "so much trouble." The employe responded that instead of worrying about that, the resident should pay attention to caring for her cat. He indicated that there had been a lot of complaints and that the resident could lose her cat if she did not take care of it. The resident told the employe to "stay the hell away" from her cat. She then reported the incident to the employer, stating that the employe had taken her tray away and had been verbally abusive. She also told the employer that the employe said he was going to kill her cat. The employe was suspended that day, and discharged a week later as a result of the incident.

The issue to be decided is whether the employe's discharge was due to misconduct connected with his employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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 contended that the employe violated two of its work rules: its rule prohibiting stealing or attempting to steal property from a resident, and its rule which prohibits "participating in substantiated resident neglect, abuse or mistreatment." The commission, however, does not believe that the employe violated the rules in question or otherwise engaged in misconduct. First, the commission is unable to conclude that the employe attempted to steal from a resident. As the employer acknowledged at the hearing, there was no food remaining on the tray and, further, the tray belonged to the facility, not the resident. The employe's actions in attempting to remove an empty lunch tray cannot reasonably be characterized as attempted theft.

Moreover, the commission does not believe that the employe engaged in any actions that amounted to abuse or mistreatment of a resident. The employe did not threaten to kill the resident's cat, as she alleged, but told her that she was in danger of losing the cat if she did not take better care of it. The employe did not make this up in order to scare the resident, but understood it to be the case based upon an agreement with Social Services. While the employe's decision to mention the situation with the cat at a time when the resident was already agitated did not evince the best judgment, he was not aware that the resident would react as strongly as she did, and the commission does not believe that he acted with a deliberate intent to threaten the resident or undermine her well-being.

The commission, therefore, finds that in week 47 of 1999, the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 47 of 1999, provided he is otherwise qualified. He is not required to repay the sum of $891 to the Unemployment Reserve Fund.

Dated and mailed May 3, 2000
willibr.urr : 164 : 3  MC 610.25

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that the employe could not necessarily have anticipated that the resident would have such a strong reaction to his statement about the cat. As set forth in the body of the decision, where the employe was unaware how upsetting his statement would be to the resident, the commission is unable to conclude that he deliberately acted to undermine her sense of well-being or cause her emotional distress.

cc: NEW GRANDCARE INC
AUDUBON HEALTH CARE CENTER

WRAY VASSAR
CONTINENTAL INVESTIGATIONS & SECURITY LTD

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting:

I am unable to agree with the result reached by the majority herein and I dissent. I believe telling patient that she could lose her cat is patient abuse even if the patient does not have paranoid tendencies. I have no doubt that the employe was upset with the patient for telling him he was in trouble. I believe he mentioned the patient might lose her cat as a means of retaliation.

Therefore, I would agree with the administrative law judge and affirm the administrative law judge's decision.


_____________________________________
Pamela I. Anderson, Commissioner


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]