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

DESEREA TOBER, Employee

REINHART RETAIL GROUP NO 1 INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03202471MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked two and one half years as a department manager for the employer, a hardware, appliance and convenience store business. Her last day of work was November 6, 2003 (week 45), when she was suspended. The employee was discharged on November 19, 2003 (week 47).

Wis. Stat. § 108.04(6) provides, in part, as follows:

DISCIPLINARY SUSPENSION. An employee whose work is suspended by an employing unit for good cause connected with the employee's work 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.

In Messenger v. Fort James Operating Company, UI Dec. Hearing No. 99400520GB (LIRC August 13, 1999), the commission concluded, following a detailed statutory analysis, that only suspensions that were disciplinary fell within the purview of Wis. Stat. § 108.04(6). Specifically, in Messenger, a "proactive" suspension was found not to be a suspension within Wis. Stat. § 108.04(6). Similarly, the commission finds that suspensions for investigations are not disciplinary suspensions. Brown v. Jewel Food Store, UI Dec. Hearing No. 98605057MW (LIRC October 20, 1998).

The issue to be decided is whether the suspension of the employee's employment during weeks 45 and 46 of 2003 was a disciplinary action for good cause connected with the employment.

In this matter, while the store manager testified that the suspension was "because all the gas that was charged was not for deliveries," the manager's documentation regarding the suspension indicates that the suspension was "until further investigation." At the time of the suspension, there was no discussion or paperwork given to the employee suggesting that the suspension was a punishment or discipline for the behavior. In fact, upon completion of the investigation, the employee was discharged for charging gas for her personal vehicle to the employer without permission and where a portion of that gas went to personal use. The discharge was the discipline that was imposed for the behavior, not the suspension.

The commission therefore finds that in weeks 45 through 46 of 2003, the employee's work was suspended but not for good cause connected with that work, within the meaning of Wis. Stat. § 108.04(6).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits in weeks 45 and 46 of 2003, if otherwise qualified.

Dated and mailed July 16, 2004
toberde . urr : 150 : 2  MC 676

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge prior to reversing this matter. The reversal is not based upon any differing credibility assessment but is instead based upon a differing interpretation of the law.

cc:
Attorney Autumn Kruse
Rainbow Ace Home Center


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uploaded 2004/07/19