In the matter of the unemployment benefit claims of

WILLIAM PETSKA, Employee

Involving the account of

EAU CLAIRE MADISON LA CROSSE X EMBERS MGT ACCT, Employer

On March 26, 1994, the Department of Industry, Labor and Human Relations (department) issued an initial determination finding that the employe received a disciplinary suspension for good cause pursuant to section 108 . 04 (6) , Stats. The employe was ineligible for benefits in week 11 of 1994. The employe timely appealed and a hearing was held before an administrative law judge. On May 19, 1994, the administrative law judge issued his appeal tribunal decision, reversing the department's initial determination, and finding that the employe was not suspended within the meaning of section 108.04(6), Stats., but instead was discharged although not for misconduct connected with his employment. The employer timely petitioned the commission for review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

The employe worked approximately one and one-half years as a waiter for the employer, a restaurant. The employe's last day of work was March 11, 1994 (week 11).

On Thursday, March 10, 1994 the employe was working a shift that was short-staffed. Because the restaurant was very busy that evening, the employe allowed a group of regular customers to fill out their own checks and request food. The cook entered the price of the items and the employe totaled the charges. The next morning the employe's supervisor discharged the employe because he did not get along with his co-workers. The area manager intervened and spoke to the employe and told him that he was not discharged but that his discharge would be converted into a disciplinary suspension. The regional manager testified that while he believed the employe acted inappropriately by allowing the customers to fill out their own checks, he did not believe it warranted discharge. The regional manager also explained that he did not condone the procedures used by the employe's supervisor for terminating the employe.

The initial issue is whether the employe was discharged within the meaning of section 108.04 (5), Stats., or suspended from his employment within the meaning of section 108.04 (6), Stats.

The administrative law judge concluded that the employe was discharged and not suspended from his employment. The administrative law judge reasoned that the employer's later attempt to reverse its decision to convert the employe's discharge to a disciplinary suspension did not change the nature of its initial decision and its communication to the employe that he was discharged. In this instance, the commission respectfully disagrees.

The commission is satisfied that the employer converted its discharge to a disciplinary suspension. The regional manager testified that while he believed the employe inappropriately allowed the customers to fill out their own checks, he did not believe it warranted discharge. The regional manager also explained that he did not condone the procedures used by the employe's supervisor for terminating the employe. Given the regional manager's authority over the employe's supervisor, the commission is satisfied that the regional manager had the authority and in fact did convert the employe's discharge to a disciplinary suspension.

Concluding that the employer suspended the employe, the next inquiry is whether the employe's disciplinary suspension was for good cause connected with his employment, pursuant to section 108.04 (6), Stats. Subsection (6) provides that an employe is ineligible for benefits up to three weeks if the suspension is for "good cause connected with the employe's work." The statute does not define "good cause" but the commission has consistently held that "good cause" includes single isolated acts of negligence or poor judgment of a type that the misconduct standard would not necessary include. Thus, the "good cause" standard is considered to be a less stringent standard than the misconduct standard found in section 108 . 04 (5) , Stats . Thus , the specific inquiry in this case is whether the employe's actions on the night in question constitute "good cause."

The employe was never told that the regular customers could not fill out their own checks or that such action violated an employer rule. The employe was short-staffed that night and permitted the regular customers to prepare their own checks to save time so he could wait other tables. Also, the employer never accused the employe or the customers of cheating the employer. In fact, the cook entered the prices of the items and the employe totaled the charges of the items filled in by the customers. While the employe's action might be characterized as inappropriate, it is insufficient to rise to the level of good cause within the meaning of section 108.04 (6), Stats.

The commission therefore finds that in week 11 of 1994, the employe's work was suspended as a disciplinary action but not for good cause connected with his work, within the meaning of section 108.04 (6), Stats. ' The employe is eligible for benefits beginning in week 11 of 1994, if he is otherwise qualified.

The appeal tribunal decision is modified to conform with the foregoing and as modified, is affirmed. Accordingly, the employe is eligible for benefits beginning in week 11 of 1994, if he is otherwise qualified.

Dated and mailed August 12, 1994
135 - 1013  MC 676.2   MC 676.1

/s/ Pamela I. Anderson, Chairman

/s/ Richard , Commissioner

James R. Meier, Commissioner

NOTE: The commission's modifications do not depend upon any credibility resolution different from that of the administrative law judge. However, applying the law to the facts at hand, the commission reaches a different legal conclusion than the administrative law judge. Under the circumstances, the commission concludes that the employer converted its discharge of the employe to a disciplinary suspension and that the suspension was not for good cause within the meaning of section 108.04(6), Stats.

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