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

Subject: Milwaukee County v. Kaap & Ind. Com, Case No. 115-370 (Wis. Cir. Ct., Dane Co., Jan. 11, 1965)

Digest Codes: MC 629   MC 630.16

A cook at a county institution violated a rule prohibiting employes from consuming any of the institution's food supplies. She drank a glass of buttermilk from the institution's stores in order to relieve a spell of illness. She was given notice that because of her infraction she was discharged effective in 2 weeks. She was emotionally upset by her discharge and she did not report for work after receiving the notice. Her employer alleged that she quit, and the deputy and the appeal tribunal denied benefits on the ground alleged.  

The commission held  that she was discharged, and not for misconduct.  The commission observed that the employer's rule was not unreasonable and the employe's infraction thereof was not condoned by the commission, and that her offense was one which may well have warranted a warning or reprimand. However, the offense was not of such severity or significance as to constitute misconduct in the absence of evidence that it was habitual or in violation of warnings.

Held: The commission's decision is affirmed.  There is more than ample evidence to sustain the commission's findings that "In view of her discharge for a relatively insignificant infraction of the rules and her consequent emotional upset, continuing at her employment thereafter would have been extremely disagreeable and distressing and she could not reasonably have been expected to work the additional two weeks which she would have been permitted to do . . . Moreover, even if her failure to work the additional two weeks could be construed as a termination of her employment on her part, such termination would have been with good cause attributable to the employer in view of the action of the employer . . ." Her emotional response to a discharge for a six-cent "theft" was no doubt somewhat abnormal and unreasonable, but after all it was no more unreasonable than the six-cent discharge.

The Commission's finding that whereas the infraction might well have warranted a warning or reprimand, it was not so severe or significant that it was misconduct, was the only reasonable conclusion that could be reached. In Parke Davis & Co. vs. E.S.C. (Mich.) CCH - U.1. Reports, it was stated concerning the receiving of stolen property consisting of a small-size can of apple juice that: "The Court feels that misconduct in connection with work under the provision of this statute must be of sufficient severity to give real concern. Here it appears that the 'de minimis' doctrine applies. Admittedly the action of the claimant was wrong, but to put into motion all of the severe penalties attendant upon a declaration of misconduct in connection with his work appears to be basically unjust and inequitable. This conclusion is reached without reference to whether the action was or was not criminal in nature."

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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