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


DENNIS P LUBENOW, Employe

DEPARTMENT OF HEALTH & FAMILY SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97402148AP


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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately 7 and 1/2 years as a psychiatric care technician for the employer, a state facility which houses persons convicted of sexual offenses. The employe was suspended during weeks 30 through 34 of 1997 for failing to provide accurate information regarding census patient checks.

The employe's job is a mixture of patient care and security related tasks. The employer's established procedures required the staff to conduct a count or census of patients every half hour. The staff are required to direct the light of a flashlight through a small door window and confirm that "flesh" was visualized before concluding that the patient was present.

On the night shift beginning June 25, 1997 the employe and his two co-workers shared the census check responsibilities. The employe performed four census checks that night, the last one at 4:00 a.m. The employe testified that a 1:00 a.m. he spotted the patient in question walking very slowly down the hall toward the bathroom. At the 5:00 a.m. census, a co-worker discovered that the patient was not in his room. That co-worker alerted the employe and another worker to that fact. The employe began a search on the unit and found the patient locked in a shower room. Only staff are allowed keys to the shower room. The employe completed his shift and was notified by the personnel manager on June 26, 1997 that his employment was being suspended with pay indefinitely, pending an investigation of the incident. Later by letter, the employe was placed on disciplinary suspension without pay during weeks 30 through 34 for failing to provide accurate information regarding census checks.

The issue is whether the suspension of the employe's employment during weeks 30 through 34 of 1997, was a disciplinary suspension for good cause connected with the employment, within the meaning of Wis. Stat. § 108.04(6).

The ALJ found that while the mystery of how the patient was locked in the shower room remains unsolved, the employer presented insufficient evidence to necessarily establish that the employe was responsible and/or negligent in the performance of his job duties. The commission respectfully disagrees.

Wis. Stat. § 108.04(6), does not define "good cause" but the commission has consistently held that good cause in a disciplinary matter includes single isolated acts of negligence or poor judgment of a type that the misconduct standard would not necessarily include. This standard is considered to be a less stringent standard than the misconduct standard. See Allan D. Woepse v. US Postal Services, (LIRC 5/8/97).

The commission believes that the employe was negligent in the execution of his duties that evening, even though the employer was unable to prove beyond a reasonable doubt how the patient entered the shower room. Since that is not the standard here, and the incident occurred while on the employe's watch, the commission is satisfied that his actions amounted to negligence sufficient to support a finding of good cause within the meaning of Wis. Stat. § 108.04(6).

The commission therefore finds that beginning in week 30 of 1997 the employe's employment was suspended as a disciplinary action for good cause connected with that work, within the meaning of Wis. Stat. § 108.04(6).

The commission further finds that the employe was paid benefits in the amount of $282.00 for weeks 30 through 33 of 1997, amounting to a total of $1,128.00 for which he is not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe is required to repay $1,128.00 to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 30 of 1997 and is ineligible to receive benefits until three weeks have elapsed since the end of the week in which the suspension occurs or until the suspension is terminated whichever occurs first. The employe is thereafter eligible, if otherwise qualified. The employe is required to repay the sum of $1,128.00 to the Unemployment Reserve Fund.


Dated and mailed: March 19, 1998
lubende.urr : 135 : 1   MC 676

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ regarding credibility assessment and demeanor. The commission's decision does not depend upon any credibility resolution different from that of the ALJ. However, applying the law to the facts at hand, the commission reaches a different legal conclusion than that of the administrative law judge. The commission is satisfied that the employe's actions amounted to good cause sufficient to support a finding within the meaning of Wis. Stat. § 108.04(6).

NOTE: The result in this case is consistent with the commission decision in Mark O. Waedekin v. DHFS.

cc: KARLA J SOUZEK
PERSONNEL MANAGER
DHFS WRC


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