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

CHRISTINE M DEEL, Employe

CORPORATE COURIER EXPRESS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99603816MW

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 for two years as a driver for the employer, a courier service. The employe's last day of work was April 12, 1999 (week 16), when she was discharged. The employer discharged the employe for excessive customer complaints and poor work performance.

On October 19, 1998, the employe received a warning because she failed to fill out an accident report after she had been rear-ended. The accident had occurred in September of 1998 and involved only property damage. The employe was directed by the employer to go to the police station and fill out an accident report. The employe did not file the police report because she was required to do so on her own time.

On January 5, 1999, the employer issued an Employee Warning Notice because the employe was two hours late making her pick-ups and deliveries. The employe did not dispute the delay, but attributed the delay to having a new route. On January 15, 1999, the employer issued an Employee Warning Notice to the employe for excessive tardiness on her deliveries and for allegedly yelling at dockworkers at Northwestern Mutual Life Insurance Company. The employe had asked the dockworkers to move a truck that was blocking her way. She did not raise her voice. Another customer, Aurora Health Care, barred her from future visits because it felt she would not listen to instructions. Lincoln State Bank claimed the employe was 30 minutes later in making deliveries than the previous driver on that route. The employe believed that poor management was also to blame for the customer complaints.

On March 6, 1999, the employer issued another Employee Warning Notice for late pick-ups and deliveries. Another client, Johnson Controls, complained about the employe's performance. In addition, the Archdiocese of Milwaukee complained that its workers were required to stay 20 minutes past their shift waiting for the employe to pick up the mail. On March 10, 1999, the employer issued another Employee Warning Notice for discussing non-relevant information over the radio.

On April 8, 1999, a security guard at Johnson Controls complained that the employe was talking to him on his shift and taking up 15 to 20 minutes of his time. She was discharged following that complaint. The employer did not speak to the employe about the final complaint. The employe had not spoken to the guard.

The issue to be decided is whether the employe was discharged for misconduct connected with her employment.

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 commission finds that the employer did not meet its burden of proof in establishing that the employe was discharged for misconduct connected with her work. The employer's testimony about customer complaints is hearsay. Indeed, it is not at all clear that the witness at the hearing, Mr. De-Kelaita, was the individual who personally received all the complaints. The employe generally blamed a change in routes or the weather for late deliveries. Also, the employe stated that her schedule was tight and she refused to speed in order to make timely stops. While she signed some warnings she did not admit culpable behavior. Regarding the final incident, the employer offered only hearsay evidence that on April 8, 1999, the employe spoke with a security guard for 10-15 minutes preventing him from doing his job. The employe denied talking to the guard.

The commission therefore finds that in week 16 of 1999 the employe was discharged from her employment but not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 16 of 1999, if she is otherwise qualified.

Dated and mailed October 28, 1999
deelch.urr : 132 : 6 : MC 610.25  MC 664   PC 714.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the ALJ. The commission's reversal is based on the insufficiency of the employer's evidence, in particular with respect to the final incident, and not based on credibility.

cc: ATTORNEY STEVEN STOLPER

Appealed to Circuit Court. Affirmed July 6, 2000. [Court decision summary]

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