Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Maggie Juris v. CUNA Mutual Ins. Soc. and LIRC, Case No. 02 CV 3336 (Wis. Cir. Ct., Dane Co., March 20, 2003) (Bench decision)

Digest Codes: MC 659  MC 696

The employee was discharged for making an excessive number of personal telephone calls, many connected with her efforts to set up a private business, from work during work time. She had previously been disciplined for making excessive personal calls from work and warned that she could be discharged if she repeated her conduct. She asserted that her supervisor had given her permission to make personal calls from her telephone at work during her lunch breaks and other break times and that she had made the calls in question at such times. The Initial Determination found no misconduct, but the ALJ reversed to find misconduct and LIRC agreed and affirmed that finding. LIRC acknowledged that the supervisor had given the employee permission to make some calls, but found that she had not been given permission to make the number of calls she had or to make calls during her work time as she had.

On appeal to the circuit court, the employee argued that because LIRC had found that her supervisor had given her permission to make some personal calls from work during break times, and because LIRC had not made a finding as to any particular calls that were made outside of break time and not subject to her supervisor's permission, there was no basis for its decision that her discharge had been for misconduct.

Held: In a Bench Decision, the court affirms LIRC's decision. While the employee's supervisor gave her permission to make some personal calls, during lunch and break times, many of the calls were made at other times. The fact that LIRC failed to state precisely which of the calls were the ones made with or without permission is not a basis to overturn its decision, where it is undisputed that the vast majority of the calls were made at times when there is no evidence they were made with permission. The conclusion of misconduct was reasonable. Misconduct does not require that the employer show that it has been harmed in any tangible way by the employee's conduct. An employer's interests may be something less measurable than money or property. Here the employer had a clear policy that it chose to prohibit the use of the company phones for personal use.

[LIRC decision]

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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