Wis.LIRC UC Decision: Morel, Gustavo - December 12, 2008 - MC 665.04 - Relation of offense to discharge - Condonation - prior record; MC 688.1 - Disciplinary procedure - enforcement - sequence of penalties; MC 699.05 - Warning - employee violated employer safety rule by lifting an empty pallet w/o a forklift or a coworker assist - while aware this was rule violation, not on notice it would result in discharge - not sufficiently egregious to allow discharge w/o warning to be considered misconduct

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 30 of 2008, if otherwise qualified.

Dated and mailed December 12, 2008
morelgu . usd : 115 : 1 MC 665.04 MC 688.1 MC 699.05

On August 28, 2008, the department provided notices to the parties that hearing on the merits of the employee's claim would be held by telephone on September 10, 2008. The employer completed a department telephone hearing form and faxed it to the department on September 4. On this form, the employer stated as follows, as relevant here:

If you are the employer, who will participate in the hearing?
Name/title:	Colleen Callies, HR Manager...
Attorney/Agent name (if applicable)	William Stasek...
Witness name/title (if applicable)	Al Mohr/Lead Person...
Witness name/title (if applicable)	Craig Fiemeyer/Lead Person...

At the beginning of that part of the hearing which was recorded, the ALJ had on the line the employee, Colleen Callies (Callies), and Al Mohr. The ALJ stated that Callies would be considered the employer. Callies requested that Craig Fiemeyer (Fiemeyer) also be permitted to participate in the hearing as a witness, and the ALJ indicated that he would take the testimony of the parties and Mohr and then decide whether Fiemeyer's testimony would be taken. Callies did not mention William Stasek (Stasek) at any time during the hearing.

After the testimony of Callies, Mohr, and the employee was taken, the ALJ apparently became aware that Stasek, who was with TALX, had contacted the hearing office when he was not telephoned for the hearing. The ALJ then proceeded to get both Stasek and Fiemeyer on the line.

The ALJ stated to Stasek that he had no reason to be aware to that point in the hearing that the employer wanted Stasek to participate. The ALJ then took the testimony of Feimeyer. After Feimeyer's testimony, the ALJ apologized to Stasek for the miscommunication, and asked him whether he had anything to add. Stasek indicated he did not.

It was not a violation of the employer's due process rights for the ALJ to proceed with the hearing without the participation of Stasek. Callies, who appeared at the hearing as the employer, did not request the participation of Stasek at any time during the hearing. In addition, even when Stasek was added to the telephone hearing, neither he nor Callies requested a continuance or a rehearing, or otherwise objected to the manner in which the hearing had been conducted. Since the fact of, and the identity of, representation can change after hearing forms are submitted to the department, it was the employer's responsibility to request the participation of Stasek at the hearing, and its failure to do so should not now be regarded as a denial of due process.

On July 15, 2008, the employee injured his shoulder trying to straighten a pallet of bottles jammed in a strapper. During the investigation of this injury, the employer discovered that the employee had been loading empty pallets into a pallet dispenser by hand rather than using a forklift because he had not been certified to use a forklift. The corrective action form (exhibit #1, pages 13-14) issued to the employee as the result of the July 15 injury stated as follows, as relevant here:

The employer's work rules/policies (exhibit #1, page 5), of which the employee had reason to be aware, state as follows, as relevant here:

On of the employer's safety policies (exhibit #E-1) states in part, "Do not attempt to lift or push objects that are too heavy for you. Ask for help when you need it. Learn to lift the proper way to avoid strains."

On July 22, 2008, when an alarm was sounding, signifying that additional empty pallets needed to be added to the pallet dispenser, there was no forklift easily available to the employee so he lifted an empty pallet by hand and placed it in the dispenser. The employee was discharged as a result.

The commission has been consistent in holding, except in those cases in which the alleged conduct is sufficiently egregious, that, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that his job is in jeopardy or will be if he engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Kovach v. Farm/Fleet Janesville, Inc., UI Hearing No. 05005166WK (LIRC Feb. 24, 2006).

Here, neither the corrective actions issued to the employee nor the language of the employer's work rules/policies would have put the employee on notice that his job would be in jeopardy for lifting an empty pallet without using a forklift or having a coworker assist him. The corrective actions did not state a consequence for future unassisted lifting. In addition, although the language of the employer's work rules/policies would generally have put the employee on notice that disciplinary action could result from a violation of the employer's safety regulations, it would not have put the employee on notice that lifting an empty pallet would result in his discharge.

The remaining question, then, is whether the subject conduct was sufficiently egregious to relieve the employer of its responsibility to make the employee aware that his job would be in jeopardy if he engaged in it.

The employee's actions do not come close to meeting this standard. The employee was expected to load the dispenser when the alarm went off, but was told to use a forklift or to obtain assistance when doing so. On July 22, the alarm went off, but there was no forklift available and the employee did not want to bother another worker to assist him in lifting an empty pallet which he believed he could, and which he had in the past, lifted easily and safely himself. Although perhaps a lapse in judgment, this action by the employee is not misconduct.