Summary
In Cheese, supra, 15 and Tate, supra, 6, this court stated that a person's intent in doing acts for which he is discharged is a question of fact.
Summary of this case from Vocational, Technical & Adult Education, District 13 v. Department of IndustryOpinion
September 5, 1963 —
October 1, 1963.
APPEAL from a judgment of the circuit court for Dane county: HELMUTH F. ARPS, Reserve Circuit Judge, Presiding. Reversed.
For the appellant there was a brief and oral argument by Harvey L. McCormick of Milwaukee.
For the respondent Industrial Commission there was a brief and oral argument by Arnold J. Spencer, chief counsel of the unemployment compensation division.
Action to review a decision of the Industrial Commission denying unemployment compensation payments to the plaintiff.
Mr. Cheese applied for benefits after being discharged August 29, 1961. The employer claimed he was ineligible because he was discharged for misconduct, stating, "This employee sabotaged a crane by pouring water into the fuel tank." A deputy rejected the disqualification. The employer appealed and a hearing was had before an examiner, sitting as an appeal tribunal.
The appeal tribunal allowed benefits after making findings as follows:
"The employe worked for the employer, a dealer in scrap iron, for about two years as a yardman. His duties included fueling the employer's cranes and he had been advised that he was to comply with the instructions of the crane operator in this respect.
"On August 29, 1961 (in week 35), the operator of one of the employer's cranes asked the employe to get water for the crane in a can that was normally used to carry fuel oil. The employe objected to the use of the fuel oil can for this purpose, but was told a second time to do so and complied with the crane operator's request. The radiator of the crane required only a small amount of water and the employe asked the crane operator to return the can to him in order to dispose of the balance of the water so that he could refill the can with fuel oil. The crane operator advised the employe that he would keep such can as the radiator might need more water later in the day and that he would at such time pour the unused water from the can. The employe and a co-worker then proceeded to fill the fuel tank of the crane. The employe handed the cans filled with fuel oil to his co-worker and such co-worker poured the oil into the tank and several partially full cans were left in the crane. Later in the day the employe returned to the crane to refuel it and poured the contents of the fuel cans, including the one partially filled with water, into the fuel tank of the crane. Subsequently the crane engine stopped and upon investigation water was discovered in the filters and fuel line of the crane engine. The employe was questioned by the employer regarding the problem and was discharged by the employer when he attempted to explain.
"The employer contended that the employe had deliberately poured water into the fuel tank of the crane, that the employe knew he should not have used a fuel can to carry water, that he knew one of the fuel cans in the crane had water in it and should have checked before pouring the contents of all of the cans into the fuel tank of the crane, that there is a substantial difference between water and fuel oil as to color and odor and the employe was aware of this difference, and that the employe acted in a reckless and indifferent manner by not exercising a higher degree of care at the time he refueled the crane.
"The employe knew a fuel can should not be used to carry water and objected to doing so. He made an attempt to remove the balance of the water after the crane operator had filled the radiator of the crane and relied on the crane operator's promise that he would empty the can. Although there is a difference between fuel oil and water as to color and odor, at the time the employe returned to the crane to refuel it he had no reason to believe that the fuel cans left in the crane contained anything but fuel oil. Due to his reliance on the promise of the crane operator the employe poured the contents of the fuel cans into the fuel tank in the usual manner and was unaware of any problem until the crane engine stopped. The employe did not deliberately or intentionally pour the water in the fuel tank and the damage which resulted was not due to carelessness or negligence in the performance of his work of such a degree as to constitute conduct evincing a wilful and wanton disregard of the employer's interests.
"The appeal tribunal therefore finds that in week 35 of 1961, the employe was discharged but not for misconduct connected with his employment, within the meaning of section 108.04(5) of the statutes."
The employer petitioned the Industrial Commission for review. The commission made the following findings, reversed the decision of the appeal tribunal, and decided that the employee was ineligible for benefits:
"The employe worked for the employer, a dealer in scrap iron, for about two years. His duties included procuring water for and fueling the cranes used at the employer's establishment.
"On the morning of August 29, 1961, the employe, at the request of a crane operator brought a five gallon can of water to the crane, using one of the cans provided for use in fueling only. The operator used only a portion of the water for the crane radiator and placed the can, still partially full of water, in the crane. During the time of this incident the employe was also passing fuel up to another worker on the crane, and two partially filled cans of fuel oil were left in the crane near the can of water. At about 3:00 p.m. that day the employe returned to the crane to refuel it. There were four fuel cans at the crane and the employe, remembering that some partially-filled fuel cans had been left at the crane, started to empty the contents of the cans into the fuel tank of the crane. One of the fuel cans he emptied into the crane contained the water he had brought to the crane that morning. The crane ceased operating and the repair men who were called discovered water in the fuel tank. The employe was questioned concerning the matter and when he admitted that he had poured the water into the fuel tank he was discharged. The water in the fuel tank damaged the crane and resulted in costly repairs, loss of production time, and serious inconvenience to the employer.
"The employe alleged that in the morning the crane operator, with whose orders he was supposed to comply, had instructed him to use a fuel can for the water and, despite the employe's objections, kept the fuel can partially filled with water in the crane, promising to empty it later; that when he returned later that afternoon, he did not expect that one of the fuel cans would contain water; that he made no inspection, and inadvertently poured the water into the tank.
"The employer had provided fuel cans which were colored deep red and water cans which were gray with a blue band so as to make them easily distinguishable. The employe admittedly knew that it was wrong to use fuel cans for water and knew the damage which would result if water got into the fuel tank of a crane. In view of this knowledge, his use of a fuel can for water, his failure to make certain that the can was emptied of water, and his failure to check the contents of the fuel cans when he fueled the crane in the afternoon was negligence and carelessness in the performance of his duties of such degree as to evince a wanton disregard of the standards of behavior which the employer, under the circumstances, had the right to expect of him. The fact that he as a yardman may have been required (as he alleged) to comply with a crane operator's orders did not absolve him of responsibility for engaging or participating in careless conduct which he knew could result in extensive damage to the employer's equipment and business.
"The Industrial Commission therefore finds that the employe was discharged for misconduct connected with his employment, within the meaning of section 108.04(5) of the statutes."
On January 25, 1963, judgment was entered in the circuit court, confirming the decision of the commission. The employee has appealed.
Additional facts will be referred to in the opinion.
There is little or no conflict in the testimony, and the evidence supported the findings made by the appeal tribunal, as well as those findings made by the commission which were consistent with those made by the appeal tribunal. The main points of difference between the two sets of findings are:
(1) Claimant sought to justify his putting water in the fuel can in the morning on the grounds that the crane operator, whose directions he had been told to follow, insisted on it, and that the operator promised he would empty the water when no longer required. The appeal tribunal found in accordance with claimant's testimony. The commission made no finding on this proposition, because it deemed it immaterial.
(2) There is no reason to suppose that claimant knowingly and deliberately poured water into the fuel tank of the crane, although that was the employer's original contention. Claimant testified he was not expecting water to be in the can when he emptied it into the fuel tank, and it was a mistake; that the filler pipe was an inch and a quarter in diameter and located near the floor, so that it was necessary to turn the can over quickly and insert the spout in the pipe, so that one did not observe the liquid as it was being poured. Claimant's testimony that he had forgotten that one of the cans contained water was not incredible. The earlier incident involving the water occurred shortly after 6 a.m., the later incident about 3 p.m. Claimant had performed other work in the meantime. Just before the later incident he had been standing on a ship which was being loaded by the crane, and giving signals to the operator. It was necessary to call on someone else to relieve him in that task before he could go to the crane and fuel it. The appeal tribunal characterized his conduct as not being carelessness of such a degree as to constitute conduct evincing a wilful and wanton disregard of the employer's interests. The commission took the opposite view, that it was carelessness of such degree as to evince a wanton disregard of the standards which the employer had the right to expect.
With respect to the first point of difference, we think the commission erred in concluding that it was immaterial whether claimant acted on the instructions of a fellow employee whose directions he had been told to follow. This is material because, as will be seen, the crucial question is the employee's intent or attitude which attended his act or omission which is alleged to be disqualifying misconduct.
As the record stands, there is no testimony which contradicts the claimant's version of how he came to put water in the fuel can and leave it in the crane. The operator involved was a Mr. Best, but he was not called as a witness nor shown to be unavailable. There was testimony by the assistant operations manager of the employer describing a conversation between Mr. Afram, one of the owners or officers of the employer, and claimant immediately after the difficulty with the crane had been diagnosed. This witness did indicate that claimant remained silent when asked why he poured water in the fuel tank. Claimant testified that he tried to tell Mr. Afram the same facts he gave at the hearing. The testimony of the assistant operations manager is not very clear and suggests there may have been some confusion between the two acts of putting water into the fuel can and pouring the contents of the can into the fuel tank. It is apparent that on at least one occasion Mr. Afram did not give claimant an opportunity to answer a question, and it is very probable that the interview was quite heated. Claimant is thirty-four years of age, with education through the ninth grade. It is apparent from the record that he cannot always express himself clearly. It is undisputed that he gave Mr. Afram at least a part of the same explanation he gave at the hearing. Under the circumstances, we do not deem that the testimony concerning this conversation would be a sufficient basis for finding that the crane operator did not give directions as claimant asserted.
With respect to the second point of difference, insofar as a person's acts, or his intent in doing such acts, are questions of fact, where the evidence and reasonable inferences therefrom would support any one of two or more findings, a finding by the commission is conclusive.
Marathon Electric Mfg. Corp. v. Industrial Comm. (1955), 269 Wis. 394, 402, 69 N.W.2d 573, 70 N.W.2d 576.
Here, however, the question is whether the facts fulfil a particular legal standard. This court determined that the term "misconduct connected with his employment" as used in sec. 108.04(5), Stats., was an ambiguous term of doubtful meaning, and found it necessary to interpret it with the view of effecting the general purpose of the legislature.
Boynton Cab Co. v. Neubeck (1941), 237 Wis. 249, 296 N.W. 636.
We consider that the difference between the appeal tribunal's evaluation of claimant's conduct and that of the commission is really a question of law, and the commission's determination does not bind us.
In Boynton Cab Co. v. Neubeck, this court examined the background and purposes of the Unemployment Compensation Act, and pointed out that the object was to cushion the effect of unemployment, and that the provision making the employee ineligible if discharged for misconduct imposed a forfeiture or penalty. It may be good business for an employer to discharge an inefficient or incompetent employee, but that fact is irrelevant to the question of whether the discharged employee shall receive benefits. The court recognized that less-capable workers may well have been those for whose benefit the act was largely designed, and concluded that the provision as to misconduct —
Supra, footnote 2, p. 259.
". . . will be given the construction which is least favorable to working a forfeiture, so as to minimize the penal character of the provision by excluding rather than including conduct or cases not clearly intended to be within the provision."
The court stated the test as follows:
"The application of these principles leads to the conclusion, in view of the matters to be taken into consideration, as stated above, that the intended meaning of the term `misconduct,' as used in sec. 108.04(4)(a), Stats., 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."
Supra, footnote 2, p. 259.
We consider that, as a matter of law, the claimant's conduct, though it may well have been negligent, falls short of manifesting wrongful intent or evil design or intentional and substantial disregard of the employer's interests or the employee's duties. Therefore, the decision of the commission should have been set aside by the circuit court.
Some discussion at the oral argument suggested that the commission might be free, upon remand, to do other than establish claimant's eligibility for benefits. It is our judgment that the present record would support no other decision. It is true that when the matter was originally before the commission, on petition for review of the appeal tribunal decision, the commission had power to direct the taking of additional testimony. It was, however, required to do so promptly. The commission elected to decide the matter upon the record before it, rather than to take additional testimony. Probably the commission would not, in a proper case, wholly lack power to hear additional testimony upon remand after its decision had been set aside. It is our opinion, however, that in a case such as this further delay for the taking of additional testimony would be contrary to the statutory requirement that the commission act promptly.
Sec. 108.09(6)(b), Stats.
By the Court. — Judgment reversed, cause remanded with directions to enter judgment setting aside the decision of the Industrial Commission.