STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


V L RASH JR, Employee

MAYNARD STEEL CASTING CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00606694MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed December 5, 2000
rashvl.usd : 135 : 6   MC 688.1

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review, the employer contends that the ALJ erroneously focused on the conduct of the company in its handling of the suspension, ensuing investigation and final determination of action to be taken. The commission believes that the ALJ's focus was not erroneous since the burden is on the employer to establish that its discharge of the employee was for misconduct connected with his employment within the meaning of Wis. Stats. § 108.04(5).

The employer argues that the company was lenient toward the employee, giving him the benefit of the doubt while the incident was being reviewed and allowed the employee to work the next day. The employer admitted however that this in fact was a procedural error, although in the best interests of both the company and the employee. The employer argues that to allow someone to work pending an investigation is not unreasonable. However, although the employer believes and argues that the employee was suspended pending an investigation, this fact was never communicated to the employee. Indeed the employee's supervisor, who testified at the hearing, admitted that he did not indicate whether there would be an investigation after he suspended the employee for one day.

While the commission recognizes the regrettable procedural error the employer committed, a disciplinary suspension, given as a punishment for an act (here the refusal to do the work assignment on June 7) without any subsequent misconduct, cannot support a later discharge for misconduct. See Rosie L. Pierce vs. The Kelch Corp., Hearing No. 00602402MW, (LIRC May 31, 2000); Unemployment Insurance Benefits Manual, Vol. 3, Part 7, chapter 2, page 23. While the commission does not condone the employee's actions of June 7, the fact remains that the employee's supervisor only suspended the employee for one day, and allowed him to return to work the following day. Thus, while it is the employer's prerogative to discharge the employee for refusing the assigned work, there were no intervening acts of misconduct between the employee's refusal to do the work on June 7 and the employee's one day suspension for that refusal.

The employer also argues that the employee was discharged for his chronic and excessive absenteeism. However, the commission notes that after the employer issued its final written warning letter for excessive absenteeism, four more occurrences happened which did not result in discharge. While the employer disagrees with the ALJ's findings that the occurrences were with notice to and with the apparent permission of the employer, the commission does not believe the employer's arguments overcome these findings.

Under the circumstances, the commission is satisfied that the employee's discharge was not for misconduct connected with his employment as there were no intervening acts of misconduct between the employee's one day suspension on June 7, and his discharge on June 9, 2000. For the reasons discussed above, the commission affirms the appeal tribunal decision.


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