296 N.W. 642 | Wis. | 1941
Action brought by Boynton Cab Company against the defendants, John L. Schroeder and Industrial Commission, to set aside the allowance of unemployment benefits under ch. 108, Stats., to be paid to Schroeder, a discharged employee of plaintiff. Upon a trial of the issues under the pleadings, the court filed findings of fact and conclusions of law upon which judgment was entered affirming the commission's award. Plaintiff appealed from the judgment.
The Boynton Cab Company appeals from a judgment affirming a decision of the Industrial Commission by which it adopted and affirmed a decision by an appeal tribunal designated under sec.
"John L. Schroeder was discharged on March 7, 1939, for his entire bad record of violations of company rules; had been given many warnings for these violations which are as follows:
"1938: Earnings per mile below average for December. Total bookings below average for December. "1939: January 8, warned about loafing on duty and hanging around night clubs instead of tending to business. . . .
"Checking in short, February 3, 20, 27. Warned. Earnings per mile below average for January and February."
A deputy designated by the commission under sec.
The only error assigned by appellant is that the court erred in affirming the commission's findings that the failure of *267
Schroeder to conform to the standards of earnings set by appellant, and his violation of appellant's rules with respect to "checking in short" and leaving his cab unattended on the public streets, did not constitute misconduct within the meaning of sec.
In respect to the alleged violation of appellant's rules by "checking in short," the proof was to the following effect. By the term "checking in short" is meant the practice on the part of a number of drivers of sometimes holding out, contrary to appellant's printed instructions and bulletins, part of their collections which they were to turn in to appellant at the end of their daily working period, and of turning in, in lieu of the amount so withheld, a pink slip indicating the amount withheld. These slips were supposed to be approved by a supervisor, but he was not on duty when the night drivers, such as Schroeder was, were to turn in their collections. Amounts so withheld were deducted by appellant from the employee's wages. Under this practice Schroeder had checked in short and indicated the amount on pink slips which he turned in on February 3, 20, 27, and March 3, 1939. Although there was some conflicting evidence, it reasonably admitted of the tribunal's findings that, —
"Among numerous other instructions, statements, etc., which appeared on the trip sheets which each taxi driver used in his daily work was one which read, `Don't check in short.' Actual practice, however, was at considerable variance with this instruction. The day drivers frequently `checked in short' at the end of their shift after receiving permission from their superior. However, when the night drivers finished their shift, there was no one present to give permission. It was, *269 therefore, the general practice for the night drivers to fill out `short slips' which were honored by the employer's cashier. In accordance with this practice the employee, who worked nights, on several occasions, `checked in short.' By reason of this practice and in the absence of any specific warnings to the employee to stop this practice, it cannot be found that the employee's conduct in `checking in short' amounted to improper conduct constituting a lack of regard for his duties and obligations;"
and also the general finding, which was applicable alike to all findings in relation to Schroeder's conduct, that he was not discharged for misconduct within the meaning of sec.
In relation to the contention that Schroeder's failure to measure up to appellant's efficiency standards constituted misconduct, the evidence established, as the tribunal found, that he worked as a taxi driver for appellant for about three months; that his earnings per mile and daily receipts from the operation of his cab were below the standards which the appellant considered satisfactory; and that he was discharged on that ground. But the evidence also warranted the tribunal's determination that it "was not established that the poor record of the employee was due to loafing or that he failed to perform his work to the best of his ability. The employee's failure to attain the standard set by the employer was due at most to inefficiency." In this connection the tribunal concluded that "mere inefficiency does not constitute misconduct;" and there is also likewise applicable its finding that Schroeder was not discharged for misconduct within the *270
meaning of sec.
It follows that the court did not err in affirming the decision of the Industrial Commission which affirmed the tribunal's decision and allowed unemployment benefits to Schroeder.
By the Court — Judgment affirmed.