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

MARSHA C DWORSCHAK, Employe

TURKEY STORE CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00200016RL

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 about a year and five months as a distribution specialist for the employer, a turkey processing business. Her last day of work was December 18, 1999 (week 51). She was discharged on December 21, 1999 (week 52).

The issue which must be decided is whether the employe's discharge was for misconduct connected with her employment.

In May of 1999, the employe miscounted one order, and the order was short by one case of product. She completed billing information incorrectly on a different order. She was given verbal warnings with regard to these errors. In June 1999 the employe filled a customer's order with containers of product that were the wrong size. The effect of this error was that the customer was shipped 7,000 pounds less product than it had ordered. The employer gave her a verbal warning for this error. On two consecutive days in June, the employe failed to wear her safety hat. The employe was given a verbal warning about this.

In July of 1999, the employe made a mistake on the billing invoices for two customers. She was given a written warning for poor work performance. In August, she agreed to work a shift for another worker but was absent that day. The employe testified at the hearing that she was absent due to the illness either of herself or her child, however, Exhibit 11 states that she told her supervisor she was absent because she had her days mixed up. On another day, she miscounted an order and shorted a customer by one case of product. The employe was given verbal warnings for her attendance and her poor work performance.

In September of 1999, the employe was given a verbal warning for failing to ensure that four sample cases were loaded onto a truck. The driver of the truck was responsible for loading the truck. The employe told the driver about the sample cases, but the driver forgot them.

She was then absent, September 27, October 7, November 1 and 15, and December 6, 7 and 20. The employe testified that all of her absences were due to either her illness or that of her daughter. However, the employe was unable to specifically recall the nature of these illnesses on any of these dates. She did remember, however, that on December 6 and 7 her child was ill with a fever and she could not take her to child care. The employe provided insurance documents to the employer, and those absences were excused on the weekend preceding December 10, 1999. The employe went to her parent's home in the La Crosse area for the weekend. The employe did not return home in time for work on December 20 due to weather-related road conditions.

The employe contended that her record of errors and absences did not amount to misconduct. The commission disagrees.

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 made a number of errors, many of which involved failing to count correctly, or loading the wrong sized item. These errors meant that customers were not getting the product that they ordered. The employe's testimony that the September 10, 1999 incident was the fault of the trucker was undisputed and the commission accepts that testimony. On the other hand, some were clearly the result of her own negligence. It is to the employe's credit, however, that after September, she did not make any further errors.

The employe testified that all her absences were for valid reasons, namely for the illness of either herself or her child. The commission did not credit her assertion. She was unable to recall any specific illnesses, other than her child's illness on December 6 and 7. Further, she on one occasion told the employer she missed work because she was simply confused. The employer's policy provided that it was possible to have absences excused, if the employe were to fill out an "Absence Form" and receive approval for the absence. The employer excused the employe's absences on December 6 and 7 because the employe provided a doctor's excuse. The employe had not provided doctor's excuses or other documentation on prior occasions. Under the circumstances, the commission concludes that the employe's failure to report for work as scheduled, as well as her repeated errors, demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with her work.

The commission therefore finds that in week 52 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 week 52 of 1999, and weeks 1 through 20 of 2000, amounting to a total of $2,439.00 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 52 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 $2,439.00 (of which $42.00 is set forth in other decisions) to the Unemployment Reserve Fund.

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 May 24, 2000
dworsma.urr : 145 : 1   MC 605.093  MC 689

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ credited the employe's testimony that she was absent because she was ill, in part because the employer presented no evidence to the contrary. The ALJ also noted that the employe admitted to things which were not favorable to her, for example she admitted that she was not wearing a bump cap. For the reasons stated in its decision, the commission disagrees with the credibility determination made by the ALJ, in particular with regard to the employe's reasons for being absent.

Appealed to Circuit Court.

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