01-3441 Bunker v. Labor & Industry Review Commission

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“The record demonstrates that the ALJ acted within the scope of her authority under these statutes and rules in deciding to call Smith [the customer] by telephone, questioning Smith, and limiting the cross-examination of Anderson [claimant’s employer] to facts the ALJ considered relevant-the incident concerning Smith and Anderson’s garbage removal policy. Bunker had the opportunity to present witnesses and evidence, cross-examine Anderson’s witnesses on the subjects the ALJ considered relevant, and object to evidence.

Anderson’s summary of events as related by Smith could properly be admitted under Wis. Admin. Code § DWD 140.16(1) even if hearsay, because it had reasonable probative value and was not the sole basis for the ALJ’s decision in that the ALJ also relied on Smith’s testimony.”

And, even if the claimant’s violation of the company’s policy on garbage removal at a customer’s home may not have been sufficient by itself to constitute misconduct justifying the denial of unemployment compensation benefits, in this case there was the addition of profane language directed at the customer by claimant.

“LIRC could reasonably decide that the unprovoked use of profane language directed at a customer was not due to inadvertence, ordinary negligence, or a good-faith error in judgment. It also is reasonable to interpret ‘the standard of behavior which the employer has a right to expect’ from its employees as encompassing the expectation that an employee will not be antagonistic and disrespectful toward a customer. We therefore conclude LIRC could reasonably view Bunker’s violation of the work rule, together with his use of profane language directed at a customer, to constitute misconduct within the meaning of Boynton Cab Co.”

Accordingly, the circuit court’s order is reversed and we direct entry of an order affirming the LIRC’s decision that claimant’s conduct constituted

“misconduct.”

Reversed and remanded.

Recommended for publication in the official reports.

Dist IV, Rock County, Welker, J., Vergeront, P.J.

Attorneys:

For Appellant: David B. Nance, Madison

For Respondent: Robert C. Howard III, Janesville